As filed with the Securities and Exchange Commission on October 1, 2021

Registration No. 333-

 

  

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 

 

 

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 

 

 

INTERNATIONAL BUSINESS MACHINES
CORPORATION
(Exact name of registrant as specified in its charter)

 

New York   13-0871985

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

 

 

One New Orchard Road
Armonk, New York 10504

(Address of Principal Executive Offices)

VMTurbo, Inc. Amended and Restated 2008 Stock Plan

(Full title of the plan)

Frank Sedlarcik, Esq.
Vice President, Assistant General Counsel and Secretary
International Business Machines Corporation
Corporate Legal Department
Armonk, New York 10504
(914) 499-1900

(Name, address and telephone number, including area code, of agent for service)

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer x   Accelerated filer ¨
Non-accelerated filer ¨   Smaller reporting company ¨
      Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities
to be registered 		  Amount to be registered     Proposed
maximum
offering price
per share 		    Proposed
maximum
aggregate
offering price 		    Amount of  
registration fee 		 
Capital Stock, par value $.20 per share     504,571 (1)   $ 29.83 (2)   $ 15,051,352.93 (2)   $ 1,395.26 (3)

 

 

 

1. Represents shares of capital stock, par value $.20 per share (“common stock”), of International Business Machines Corporation (“IBM”) available for future issuance upon the exercise of options pursuant to the VMTurbo, Inc. Amended and Restated 2008 Stock Plan (the “Plan”), which IBM has assumed in connection with the acquisition of Turbonomic, Inc. (“Turbonomic”) pursuant to the Agreement and Plan of Merger among IBM, Taboon Acquisition Corp., Turbonomic and, solely in its capacity as the representative, Fortis Advisors LLC, dated as of April 28, 2021 (the “Merger Agreement”, and the transaction contemplated therein, the “merger”). The number of shares of common stock issuable by IBM pursuant to the Plan has been determined in accordance with the Merger Agreement. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), to the extent additional shares of IBM common stock may be issued or issuable as a result of a stock split or other distribution declared at any time by the Board of Directors of IBM while this registration statement is in effect, this registration statement is hereby deemed to cover all of such additional common stock.
2. Pursuant to Rule 457(h)(1) under the Securities Act, the proposed maximum offering price per share and the proposed maximum offering price for the 504,571 shares of IBM common stock subject to outstanding options under the Plan are based on the weighted average exercise price for such options. Such estimate is used solely for the calculation of the registration fee.
3. A registration fee in the amount of $2,897,500.00 was previously paid by IBM Credit LLC, an indirect, wholly owned subsidiary of the registrant, in connection with the filing of a Registration Statement on Form S-3 (Registration No. 333-219724) on August 4, 2017 and declared effective on August 17, 2017. The registration statement subsequently expired on August 17, 2020, resulting in $2,086,200.00 in registration fees paid at the time of filing such registration statement remaining unused. Pursuant to Rule 457(p) under the Securities Act, the registrant hereby applies $1,395.26 of those unused registration fees to offset against the amounts due herewith. Accordingly, no registration fee is owed in connection with this registration statement.

 

 

 

 

 

 

INTRODUCTORY STATEMENT

 

This registration statement covers 504,571 shares of IBM common stock available for issuance upon the exercise of options granted under the Plan, which IBM assumed pursuant to the Merger Agreement. Upon consummation of the merger on June 16, 2021, the Plan and all of the unvested stock options outstanding under the Plan immediately prior to the effective time of the merger were assumed by IBM and all such unvested stock options became the right to purchase shares of IBM common stock in accordance with the terms and calculations set forth in the Merger Agreement and on substantially the same terms and conditions as of immediately prior to the consummation of the merger.

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1. Plan Information.

 

All information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8.

 

Item 2. Registrant Information and Employee Plan Annual Information.

 

All information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8.

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents previously filed with the Securities and Exchange Commission (the “Commission”) are incorporated by reference herein and shall be deemed a part hereof:

 

  · The Annual Report of IBM on Form 10-K for the fiscal year ended December 31, 2020, filed with the Commission on February 23, 2021.

 

  · The portions of IBM’s Definitive Proxy Statement on Schedule 14A for the 2021 annual meeting of stockholders filed on March 8, 2021 that are incorporated by reference in the Annual Report on Form 10-K for the year ended December 31, 2020.

 

  · The Quarterly Reports of IBM on Form 10-Q, filed with the Commission on April 27, 2021 and July 27, 2021.

 

  · The Current Reports of IBM on Form 8-K, or filed portions of those reports, filed (but not portions of those reports which were furnished) with the Commission on January 29, 2021, February 24, 2021, March 19, 2021, April 30, 2021, June 25, 2021, June 25, 2021, July 2, 2021 and September 30, 2021.

 

 

 

 

  · The description of IBM’s capital stock contained in IBM’s registration statements filed pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any amendment or report filed for the purpose of updating any such description.

 

All documents filed by IBM pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. In no event, however, shall any information that IBM discloses under Item 2.02 or Item 7.01 of any Current Report on Form 8-K and any corresponding exhibits thereto, which IBM may furnish to the Commission from time to time, be incorporated by reference into, or otherwise become a part of, this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

The validity of the IBM capital stock, par value $.20 per share, offered hereby has been passed upon by Frank Sedlarcik, Esq., Vice President, Assistant General Counsel and Secretary of IBM. Mr. Frank Sedlarcik owns and has other interests in shares of IBM capital stock, par value $.20 per share.

 

Item 6. Indemnification of Directors and Officers.

 

The By-Laws of IBM (Article VI, Section 6) provide the following:

 

“The Corporation shall, to the fullest extent permitted by applicable law as in effect at any time, indemnify any person made, or threatened to be made, a party to an action or proceeding whether civil or criminal (including an action or proceeding by or in the right of the Corporation) by reason of the fact that such person is (i) an officer or director of the Corporation or (ii) an officer or director of the Corporation who is asked to serve in any capacity at the request of the Corporation in any corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against, in each case, judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein. Such indemnification shall be a contract right that vests upon the occurrence or alleged occurrence of any act or omission to act that forms the basis for or is related to the claim for which indemnification is sought and shall include the right to be paid advances of any expenses incurred by such person in connection with such action, suit or proceeding, and the right to be indemnified for expenses incurred by such person in connection with successfully establishing a right to indemnification, in each case consistent with the provisions of applicable law in effect at any time. Indemnification shall be deemed to be ‘permitted’ within the meaning of the first sentence hereof if it is not expressly prohibited by applicable law as in effect at the time. The indemnification rights hereunder shall continue as to any such person who has ceased to be an officer or director of the Corporation and shall inure to the benefit of the heirs, executors and administrators of any such person. If the right of indemnification provided for in this Section 6 is amended or repealed, such amendment or repeal will not limit the indemnification provided for herein with respect to any acts or omissions to act occurring prior to any such amendment or repeal.”

 

 

 

 

The Certificate of Incorporation of IBM (Article Eleven) provides the following:

 

“Pursuant to Section 402(b) of the Business Corporation Law of the State of New York, the liability of the Corporation’s directors to the Corporation or its stockholders for damages for breach of duty as a director shall be eliminated to the fullest extent permitted by the Business Corporation Law of the State of New York, as it exists on the date hereof or as it may hereafter be amended. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.”

 

With certain limitations, Sections 721 through 726 of the New York Business Corporation Law permit a corporation to indemnify a director or officer made a party to an action (i) by a corporation or in its right in order to procure a judgment in its favor unless he shall have breached his duties, or (ii) other than an action by or in the right of the corporation in order to procure a judgment in its favor, if such director or officer acted in good faith and in a manner he reasonably believed to be in or, in certain cases not opposed to, such corporation’s interest and additionally, in criminal actions, had no reasonable cause to believe his conduct was unlawful.

 

In addition, IBM maintains directors’ and officers’ liability insurance policies.

 

 

 

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit
Number 		  Description
4.1   Certificate of Incorporation of IBM (incorporated by reference to Exhibit 3.2 to Form 8-K filed on April 27, 2007)
     
4.2   By-Laws of IBM (incorporated by reference to Exhibit 3.2 to Form 10-K filed on February 23, 2021)
     
4.3   VMTurbo, Inc. Amended and Restated 2008 Stock Plan
     
5.1   Opinion of Frank Sedlarcik, Esq., Vice President, Assistant General Counsel and Secretary, regarding the legality of the securities being issued
     
23.1   Consent of PricewaterhouseCoopers LLP
     
23.2   Consent of Frank Sedlarcik, Esq., Vice President, Assistant General Counsel and Secretary (included in Exhibit 5.1)
     
24.1   Powers of Attorney
     
24.2   Certified Resolutions of the IBM Board of Directors authorizing execution of this registration statement by Power of Attorney

 

 

 

 

Item 9. Undertakings.

 

The undersigned registrant hereby undertakes:

 

(a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

 

(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

 

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of North Castle, State of New York, on the 1st day of October, 2021.

 

  INTERNATIONAL BUSINESS MACHINES CORPORATION
       
  By: /s/ Frank Sedlarcik
    Name: Frank Sedlarcik
    Title: Vice President, Assistant General Counsel and Secretary

 

 

 

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated, on the 1st day of October, 2021.

 

Signature   Title
     
*   Chairman and Chief Executive Officer
Arvind Krishna   (Principal Executive Officer)
     
*   Senior Vice President and Chief Financial
James J. Kavanaugh   Officer (Principal Financial Officer)
     
*   Vice President and Controller
Robert F. Del Bene   (Principal Accounting Officer)
     
*   Director
Thomas Buberl    
     
*   Director
Michael L. Eskew    
     
*   Director
David N. Farr    
     
*   Director
Alex Gorsky    
     
*   Director
Michelle Howard    
     
*   Director
Andrew N. Liveris    
     
*   Director
F. William McNabb III    
     
*   Director
Martha E. Pollack    
     
*   Director
Joseph R. Swedish    
     
*   Director
Peter R. Voser    
     
*   Director
Frederick H. Waddell    

  

* The undersigned, by signing his name hereto, does hereby execute this Registration Statement pursuant to powers of attorney filed as Exhibit 24.1 to this Registration Statement.

 

  By: /s/ Frank Sedlarcik
    Name: Frank Sedlarcik
    Title: Attorney-in-Fact
       

 

 

 

Exhibit 4.3

 

 

VMTurbo, Inc.

 

Amended and Restated 2008 Stock Plan

 

Adopted on December 10, 2008

 

Amended and Restated on September 25, 2013

 

 

 

 

TABLE OF CONTENTS

 

Page

 

SECTION 1. Establishment And Purpose 1
     
SECTION 2. Administration 1
(a) Committees of the Board of Directors 1
(b) Authority of the Board of Directors 1
     
SECTION 3. Eligibility 1
(a) General Rule 1
(b) Ten-Percent Stockholders 1
     
SECTION 4. Stock Subject To Plan 2
(a) Basic Limitation 2
(b) Additional Shares 2
     
SECTION 5. Terms And Conditions Of Awards Or Sales 2
(a) Stock Purchase Agreement 2
(b) Duration of Offers and Nontransferability of Rights 2
(c) Purchase Price 2
(d) Withholding Taxes 2
(e) Restrictions on Transfer of Shares 2
     
SECTION 6. Terms And Conditions Of Options 3
(a) Stock Option Agreement 3
(b) Number of Shares 3
(c) Exercise Price 3
(d) Exercisability 3
(e) Term 3
(f) Restrictions on Transfer of Shares 3
(g) Transferability of Options 3
(h) Withholding Taxes 4
(i) No Rights as a Stockholder 4
(j) Modification, Extension and Assumption of Options 4
     
SECTION 7. Payment For Shares 4
(a) General Rule 4
(b) Services Rendered 4
(c) Promissory Note 4
(d) Surrender of Stock 4
(e) Exercise/Sale 4
(f) Other Forms of Payment 5
     
SECTION 8. Adjustment Of Shares 5
(a) General 5
(b) Change in Control 5

 

i 

 

 

SECTION 9. Securities Law Requirements 6
     
SECTION 10. No Retention Rights 6
     
SECTION 11. Duration and Amendments 6
     
(a) Term of the Plan 6
(b) Right to Amend or Terminate the Plan 6
(c) Effect of Amendment or Termination 7
     
SECTION 12. Definitions 7

 

ii 

 

 

VMTurbo, Inc. Amended and Restated 2008 Stock Plan

 

SECTION 1.          Establishment And Purpose.

 

The purpose of the Plan is to offer selected persons an opportunity to acquire a proprietary interest in the success of the Company, or to increase such interest, by purchasing Shares of the Company’s Stock. The Plan provides both for the direct award or sale of Shares and for the grant of Options to purchase Shares. Options granted under the Plan may include Nonstatutory Options as well as ISOs intended to qualify under Section 422 of the Code.

 

Capitalized terms are defined in Section 12.

 

SECTION 2.          Administration.

 

(a)            Committees of the Board of Directors. The Plan may be administered by one or more Committees. Each Committee shall consist of one or more members of the Board of Directors who have been appointed by the Board of Directors. Each Committee shall have such authority and be responsible for such functions as the Board of Directors has assigned to it. If no Committee has been appointed, the entire Board of Directors shall administer the Plan. Any reference to the Board of Directors in the Plan shall be construed as a reference to the Committee (if any) to whom the Board of Directors has assigned a particular function.

 

(b)            Authority of the Board of Directors. Subject to the provisions of the Plan, the Board of Directors shall have full authority and discretion to take any actions it deems necessary or advisable for the administration of the Plan. All decisions, interpretations and other actions of the Board of Directors shall be final and binding on all Purchasers, all Optionees and all persons deriving their rights from a Purchaser or Optionee.

 

SECTION 3.          Eligibility.

 

(a)            General Rule. Only Employees, Outside Directors and Consultants shall be eligible for the grant of Nonstatutory Options or the direct award or sale of Shares. Only Employees shall be eligible for the grant of ISOs.

 

(b)            Ten-Percent Stockholders. A person who owns more than 10% of the total combined voting power of all classes of outstanding stock of the Company, its Parent or any of its Subsidiaries shall not be eligible for the grant of an ISO unless (i) the Exercise Price is at least 110% of the Fair Market Value of a Share on the date of grant and (ii) such ISO by its terms is not exercisable after the expiration of five years from the date of grant. For purposes of this Subsection (b), in determining stock ownership, the attribution rules of Section 424(d) of the Code shall be applied.

 

 

 

 

SECTION 4.          Stock Subject To Plan.

 

(a)            Basic Limitation. Not more than 23,066,666 (after giving effect to the 2-for-1 forward stock split effected on September 25, 2013) Shares may be issued under the Plan (subject to Subsection (b) below and Section 8). All of these Shares may be issued upon the exercise of ISOs. The number of Shares that are subject to Options or other rights outstanding at any time under the Plan shall not exceed the number of Shares that then remain available for issuance under the Plan. The Company, during the term of the Plan, shall at all times reserve and keep available sufficient Shares to satisfy the requirements of the Plan. Shares offered under the Plan may be authorized but unissued Shares or treasury Shares.

 

(b)            Additional Shares. In the event that Shares previously issued under the Plan are reacquired by the Company, such Shares shall be added to the number of Shares then available for issuance under the Plan. In the event that an outstanding Option or other right for any reason expires or is canceled, the Shares allocable to the unexercised portion of such Option or other right shall be added to the number of Shares then available for issuance under the Plan.

 

SECTION 5.          Terms And Conditions Of Awards Or Sales.

 

(a)            Stock Purchase Agreement. Each award or sale of Shares under the Plan (other than upon exercise of an Option) shall be evidenced by a Stock Purchase Agreement between the Purchaser and the Company. Such award or sale shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions which are not inconsistent with the Plan and which the Board of Directors deems appropriate for inclusion in a Stock Purchase Agreement. The provisions of the various Stock Purchase Agreements entered into under the Plan need not be identical.

 

(b)            Duration of Offers and Nontransferability of Rights. Any right to acquire Shares under the Plan (other than an Option) shall automatically expire if not exercised by the Purchaser within 30 days after the grant of such right was communicated to the Purchaser by the Company. Such right shall not be transferable and shall be exercisable only by the Purchaser to whom such right was granted.

 

(c)            Purchase Price. The Purchase Price of Shares to be offered under the Plan, if newly issued, shall not be less than the par value of such Shares. Subject to the preceding sentence, the Board of Directors shall determine the Purchase Price at its sole discretion. The Purchase Price shall be payable in a form described in Section 7.

 

(d)            Withholding Taxes. As a condition to the purchase of Shares, the Purchaser shall make such arrangements as the Board of Directors may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with such purchase.

 

(e)            Restrictions on Transfer of Shares. Any Shares awarded or sold under the Plan shall be subject to such special forfeiture conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Board of Directors may determine. Such restrictions shall be set forth in the applicable Stock Purchase Agreement and shall apply in addition to any restrictions that may apply to holders of Shares generally. A Stock Purchase Agreement may provide for accelerated vesting in the event of the Purchaser’s death, disability or retirement or other events.

 

  2  

 

 

SECTION 6.          Terms And Conditions Of Options.

 

(a)            Stock Option Agreement. Each grant of an Option under the Plan shall be evidenced by a Stock Option Agreement between the Optionee and the Company. Such Option shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions which are not inconsistent with the Plan and which the Board of Directors deems appropriate for inclusion in a Stock Option Agreement. The provisions of the various Stock Option Agreements entered into under the Plan need not be identical.

 

(b)            Number of Shares. Each Stock Option Agreement shall specify the number of Shares that are subject to the Option and shall provide for the adjustment of such number in accordance with Section 8. The Stock Option Agreement shall also specify whether the Option is an ISO or a Nonstatutory Option.

 

(c)            Exercise Price. Each Stock Option Agreement shall specify the Exercise Price. The Exercise Price of any Option shall not be less than 100% of the Fair Market Value of a Share on the date of grant, and a higher percentage may be required by Section 3(b). Subject to the preceding sentence, the Exercise Price shall be determined by the Board of Directors at its sole discretion. The Exercise Price shall be payable in a form described in Section 7.

 

(d)            Exercisability. Each Stock Option Agreement shall specify the date when all or any installment of the Option is to become exercisable. No Option shall be exercisable unless the Optionee (i) has delivered an executed copy of the Stock Option Agreement to the Company or (ii) otherwise agrees to be bound by the terms of the Stock Option Agreement. The Board of Directors shall determine the exercisability provisions of any Stock Option Agreement at its sole discretion.

 

(e)            Term. The Stock Option Agreement shall specify the term of the Option. The term shall not exceed 10 years from the date of grant, and in the case of an ISO a shorter term may be required by Section 3(b). Subject to the preceding sentence, the Board of Directors at its sole discretion shall determine when an Option is to expire. A Stock Option Agreement may provide for expiration prior to the end of its term in the event of the termination of the Optionee’s Service or death.

 

(f)            Restrictions on Transfer of Shares. Any Shares issued upon exercise of an Option shall be subject to such special forfeiture conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Board of Directors may determine. Such restrictions shall be set forth in the applicable Stock Option Agreement and shall apply in addition to any restrictions that may apply to holders of Shares generally.

 

(g)            Transferability of Options. An Option shall be transferable by the Optionee only by (i) a beneficiary designation, (ii) a will or (iii) the laws of descent and distribution, except as provided in the next sentence. If the applicable Stock Option Agreement so provides, a Nonstatutory Option shall also be transferable by gift or domestic relations order to a Family Member of the Optionee. An ISO may be exercised during the lifetime of the Optionee only by the Optionee or by the Optionee’s guardian or legal representative.

 

  3  

 

 

(h)            Withholding Taxes. As a condition to the exercise of an Option, the Optionee shall make such arrangements as the Board of Directors may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with such exercise. The Optionee shall also make such arrangements as the Board of Directors may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with the disposition of Shares acquired by exercising an Option.

 

(i)            No Rights as a Stockholder. An Optionee, or a transferee of an Optionee, shall have no rights as a stockholder with respect to any Shares covered by the Optionee’s Option until such person becomes entitled to receive such Shares by filing a notice of exercise and paying the Exercise Price pursuant to the terms of such Option.

 

(j)            Modification, Extension and Assumption of Options. Within the limitations of the Plan, the Board of Directors may modify, extend or assume outstanding Options or may accept the cancellation of outstanding Options (whether granted by the Company or another issuer) in return for the grant of new Options for the same or a different number of Shares and at the same or a different Exercise Price. The foregoing notwithstanding, no modification of an Option shall, without the consent of the Optionee, impair the Optionee’s rights or increase the Optionee’s obligations under such Option.

 

SECTION 7.          Payment For Shares.

 

(a)            General Rule. The entire Purchase Price or Exercise Price of Shares issued under the Plan shall be payable in cash or cash equivalents at the time when such Shares are purchased, except as otherwise provided in this Section 7.

 

(b)            Services Rendered. At the discretion of the Board of Directors, Shares may be awarded under the Plan in consideration of services rendered to the Company, a Parent or a Subsidiary prior to the award.

 

(c)            Promissory Note. At the discretion of the Board of Directors, all or a portion of the Purchase Price or Exercise Price (as the case may be) of Shares issued under the Plan may be paid with a partial-recourse or full-recourse promissory note. The Shares shall be pledged as security for payment of the principal amount of the promissory note and interest thereon. The interest rate payable under the terms of the promissory note shall not be less than the minimum rate (if any) required to avoid the imputation of additional interest under the Code. Subject to the foregoing, the Board of Directors (at its sole discretion) shall specify the term, interest rate, amortization requirements (if any) and other provisions of such note.

 

(d)            Surrender of Stock. At the discretion of the Board of Directors, all or any part of the Exercise Price may be paid by surrendering, or attesting to the ownership of, Shares that are already owned by the Optionee. Such Shares shall be surrendered to the Company in good form for transfer and shall be valued at their Fair Market Value as of the date when the Option is exercised.

 

(e)            Exercise/Sale. To the extent that a Stock Option Agreement so provides, and if Stock is publicly traded, all or part of the Exercise Price and any withholding taxes may be paid by the delivery (on a form prescribed by the Company) of an irrevocable direction to a securities broker approved by the Company to sell Shares and to deliver all or part of the sales proceeds to the Company.

 

  4  

 

 

(f)            Other Forms of Payment. To the extent that a Stock Purchase Agreement or Stock Option Agreement so provides, the Purchase Price or Exercise Price of Shares issued under the Plan may be paid in any other form permitted by the Delaware General Corporation Law, as amended.

 

SECTION 8.          Adjustment Of Shares.

 

(a)            General. In the event of a subdivision of the outstanding Stock, a declaration of a dividend payable in Shares, a combination or consolidation of the outstanding Stock into a lesser number of Shares, a reclassification, or any other increase or decrease in the number of issued shares of Stock effected without receipt of consideration by the Company, proportionate adjustments shall automatically be made in each of (i) the number of Shares available for future grants under Section 4, (ii) the number of Shares covered by each outstanding Option and (iii) the Exercise Price under each outstanding Option. In the event of a declaration of an extraordinary dividend payable in a form other than Shares in an amount that has a material effect on the Fair Market Value of the Stock, a recapitalization, a spin-off, or a similar occurrence, the Board of Directors at its sole discretion may make appropriate adjustments in one or more of (i) the number of Shares available for future grants under Section 4, (ii) the number of Shares covered by each outstanding Option or (iii) the Exercise Price under each outstanding Option.

 

(b)            Change in Control. In the event that the Company is subject to a Change in Control, outstanding Options and Shares acquired under the Plan shall be subject to the agreement evidencing the Change in Control, which need not treat all outstanding Options in an identical manner. Such agreement, without the Optionees’ consent, may dispose of Options that are not vested as of the effective date of such Change in Control in any manner permitted by applicable law, including (without limitation) the cancellation of such Options without the payment of any consideration. Such agreement, without the Optionees’ consent, shall provide for one or more of the following with respect to Options that are vested as of the effective date of such Change in Control:

 

(i)            The continuation of such outstanding Options by the Company (if the Company is the surviving corporation).

 

(ii)            The assumption of such outstanding Options by the surviving corporation or its parent in a manner that complies with Section 424(a) of the Code (whether or not such Options are ISOs).

 

(iii)            The substitution by the surviving corporation or its parent of new options for such outstanding Options in a manner that complies with Section 424(a) of the Code (whether or not such Options are ISOs).

 

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(iv)            The cancellation of such outstanding Options and a payment to the Optionees equal to the excess of (A) the Fair Market Value of the Shares subject to such Options as of the closing date of such Change in Control over (B) their Exercise Price. Such payment shall be made in the form of cash, cash equivalents, or securities of the surviving corporation or its parent with a Fair Market Value equal to the required amount. If the Exercise Price of the Shares subject to such Options exceeds the Fair Market Value of such Shares as of the closing date of such Change in Control, then such Options may be cancelled without making a payment to the Optionees.

 

Immediately following a Change in Control, outstanding Options shall terminate and cease to be outstanding, except to the extent such Options have been continued, assumed or substituted, as described in Sections 8(b)(i), (ii) and/or (iii).

 

SECTION 9.          Securities Law Requirements.

 

Shares shall not be issued under the Plan unless the issuance and delivery of such Shares comply with (or are exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company’s securities may then be traded.

 

SECTION 10.          No Retention Rights.

 

Nothing in the Plan or in any right or Option granted under the Plan shall confer upon the Purchaser or Optionee any right to continue in Service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company (or any Parent or Subsidiary employing or retaining the Purchaser or Optionee) or of the Purchaser or Optionee, which rights are hereby expressly reserved by each, to terminate his or her Service at any time and for any reason, with or without cause.

 

SECTION 11.          Duration and Amendments.

 

(a)            Term of the Plan. The Plan, as set forth herein, shall become effective on the date of its adoption by the Board of Directors, subject to the approval of the Company’s stockholders. If the stockholders fail to approve the Plan within 12 months after its adoption by the Board of Directors, then any grants, exercises or sales that have already occurred under the Plan shall be rescinded and no additional grants, exercises or sales shall thereafter be made under the Plan. The Plan shall terminate automatically 10 years after the later of (i) the date when the Board of Directors adopted the Plan or (ii) the date when the Board of Directors approved the most recent increase in the number of Shares reserved under Section 4 that was also approved by the Company’s stockholders. The Plan may be terminated on any earlier date pursuant to Subsection (b) below.

 

(b)            Right to Amend or Terminate the Plan. The Board of Directors may amend, suspend or terminate the Plan at any time and for any reason; provided, however, that any amendment of the Plan shall be subject to the approval of the Company’s stockholders if it (i) increases the number of Shares available for issuance under the Plan (except as provided in Section 8) or (ii) materially changes the class of persons who are eligible for the grant of ISOs. Stockholder approval shall not be required for any other amendment of the Plan. If the stockholders fail to approve an increase in the number of Shares reserved under Section 4 within 12 months after its adoption by the Board of Directors, then any grants, exercises or sales that have already occurred in reliance on such increase shall be rescinded and no additional grants, exercises or sales shall thereafter be made in reliance on such increase.

 

  6  

 

 

(c)            Effect of Amendment or Termination. No Shares shall be issued or sold under the Plan after the termination thereof, except upon exercise of an Option granted prior to such termination. The termination of the Plan, or any amendment thereof, shall not affect any Share previously issued or any Option previously granted under the Plan.

 

SECTION 12.          Definitions.

 

(a)            “Board of Directors” shall mean the Board of Directors of the Company, as constituted from time to time.

 

(b)            “Change in Control” shall mean (i) the consummation of a merger or consolidation of the Company with or into another entity; (ii) the consummation of a transaction in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding voting securities, except that any change in the beneficial ownership of the securities of the Company as a result of a private financing of the Company that is approved by the Board of Directors shall not be deemed to be a Change in Control; or (iii) the dissolution, liquidation or winding up of the Company.

 

(c)            “Code” shall mean the Internal Revenue Code of 1986, as amended.

 

(d)            “Committee” shall mean a committee of the Board of Directors, as described in Section 2(a).

 

(e)            “Company” shall mean VMTurbo, Inc., a Delaware corporation.

 

(f)            “Consultant” shall mean a person who performs bona fide services for the Company, a Parent or a Subsidiary as a consultant or advisor, excluding Employees and Outside Directors.

 

(g)            “Employee” shall mean any individual who is a common-law employee of the Company, a Parent or a Subsidiary.

 

(h)            “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

 

(i)            “Exercise Price” shall mean the amount for which one Share may be purchased upon exercise of an Option, as specified by the Board of Directors in the applicable Stock Option Agreement.

 

(j)            “Fair Market Value” shall mean the fair market value of a Share, as determined by the Board of Directors in accordance with applicable law. Such determination shall be conclusive and binding on all persons.

 

  7  

 

 

(k)            “Family Member” shall mean (i) any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships, (ii) any person sharing the Optionee’s household (other than a tenant or employee), (iii) a trust in which persons described in Clause (i) or (ii) have more than 50% of the beneficial interest, (iv) a foundation in which persons described in Clause (i) or (ii) or the Optionee control the management of assets and (v) any other entity in which persons described in Clause (i) or (ii) or the Optionee own more than 50% of the voting interests.

 

(l)            “ISO” shall mean an employee incentive stock option described in Section 422(b) of the Code.

 

(m)            “Nonstatutory Option” shall mean a stock option not described in Sections 422(b) or 423(b) of the Code.

 

(n)            “Option” shall mean an ISO or Nonstatutory Option granted under the Plan and entitling the holder to purchase Shares.

 

(o)            “Optionee” shall mean a person who holds an Option.

 

(p)            “Outside Director” shall mean a member of the Board of Directors who is not an Employee.

 

(q)            “Parent” shall mean any corporation (other than the Company) in an unbroken chain of corporations ending with the Company, if each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of such date.

 

(r)            “Plan” shall mean this VMTurbo, Inc. 2008 Stock Plan.

 

(s)            “Purchase Price” shall mean the consideration for which one Share may be acquired under the Plan (other than upon exercise of an Option), as specified by the Board of Directors.

 

(t)            “Purchaser” shall mean a person to whom the Board of Directors has offered the right to acquire Shares under the Plan (other than upon exercise of an Option).

 

(u)            “Service” shall mean service as an Employee, Outside Director or Consultant.

 

(v)            “Share” shall mean one share of Stock, as adjusted in accordance with Section 8 (if applicable).

 

(w)            “Stock” shall mean the Common Stock of the Company.

 

  8  

 

 

(x)            “Stock Option Agreement” shall mean the agreement between the Company and an Optionee that contains the terms, conditions and restrictions pertaining to the Optionee’s Option.

 

(y)            “Stock Purchase Agreement” shall mean the agreement between the Company and a Purchaser who acquires Shares under the Plan that contains the terms, conditions and restrictions pertaining to the acquisition of such Shares.

 

(z)            “Subsidiary” shall mean any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date.

 

  9  

 

 

EXHIBIT 5.1

 

INTERNATIONAL BUSINESS MACHINES CORPORATION
Office of the Vice President, Assistant General Counsel and Secretary
Armonk, New York 10504
October 1, 2021

 

International Business Machines Corporation
One New Orchard Road
Armonk, NY 10504

 

Ladies and Gentlemen:

 

I am the Vice President, Assistant General Counsel and Secretary of International Business Machines Corporation (herein called the “Corporation”) and an attorney duly admitted to practice in the State of New York. I am familiar with the Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933 (the “Securities Act”) regarding the shares of common stock, par value $.20 per share, of the Corporation (the “Shares”) to be issued pursuant to VMTurbo, Inc. Amended and Restated 2008 Stock Plan (the “Assumed Plan”).

 

I, working together with members of the Corporation’s legal department, have reviewed such documents and records as I have deemed necessary or appropriate to enable me to express an informed and reasoned legal opinion with respect to the matters covered hereby.

 

Based upon the foregoing, I am of the opinion that, when issued or sold in accordance with the terms of the Assumed Plan, the Shares will be duly authorized, validly issued, fully paid and non-assessable.

 

I hereby consent to the use of my name in the Registration Statement as the legal counsel who has passed upon the legality of the Shares, as well as to the use of this legal opinion as part of the Registration Statement, as an Exhibit to the Registration Statement.

 

  Very truly yours,
     
  /s/ Frank Sedlarcik
  Frank Sedlarcik, ESQ.
  VICE PRESIDENT, ASSISTANT GENERAL COUNSEL AND SECRETARY

 

 

 

EXHIBIT 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of International Business Machines Corporation of our report dated February 23, 2021 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in the 2020 Annual Report to Shareholders, which is incorporated by reference in International Business Machines Corporation’s Annual Report on Form 10-K for the year ended December 31, 2020. We also consent to the incorporation by reference of our report dated February 23, 2021 relating to the financial statement schedule, which appears in such Annual Report on Form 10-K.

 

/s/ PricewaterhouseCoopers LLP

 

PricewaterhouseCoopers LLP

New York, New York

October 1, 2021

 

 

EXHIBIT 24.1

 

POWERS OF ATTORNEY

POWER OF ATTORNEY OF Arvind Krishna

 

KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned Chairman and Chief Executive Officer of International Business Machines Corporation, a New York corporation (the “Corporation”), which is to file with the Securities and Exchange Commission (the “SEC”) one or more Registration Statements on Form S-8, or other appropriate Form under the Securities Act of 1933 for shares of capital stock or other interests issuable upon the surrender of shares, or the exercise or surrender of any options or other interests that were issued by Turbonomic, Inc., in each case assumed or exchanged by the Corporation, hereby constitute and appoint James J. Kavanaugh, Michelle H. Browdy, Robert F. Del Bene, Simon J. Beaumont and Frank Sedlarcik and each of them, as my true and lawful attorneys-in-fact and agents, with full power to act, together or each without the others, for me and in my name, place and stead, in any and all capacities, to sign, or cause to be signed electronically any and all of said Registration Statements (which Registration Statements may constitute post-effective amendments to registration statements previously filed with the SEC), and any and all amendments to the aforementioned Registration Statements, and to file said Registration Statements and amendments thereto so signed with all exhibits thereto, with any and all other documents in connection therewith with the SEC, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof. This Power of Attorney may only be revoked by a written document executed by the undersigned that expressly revokes this power by referring to the date and subject hereof.

 

IN WITNESS WHEREOF, I, the undersigned, have executed this Power of Attorney as of this 27th day of September 2021.

 

  /s/ Arvind Krishna
  Arvind Krishna
  Chairman and Chief Executive Officer

 

 

 

 

POWER OF ATTORNEY OF JAMES J. KAVANAUGH

 

KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned Senior Vice President and Chief Financial Officer of International Business Machines Corporation, a New York corporation (the “Corporation”), which is to file with the Securities and Exchange Commission (the “SEC”) one or more Registration Statements on Form S-8, or other appropriate Form under the Securities Act of 1933 for shares of capital stock or other interests issuable upon the surrender of shares, or the exercise or surrender of any options or other interests that were issued by Turbonomic, Inc., in each case assumed or exchanged by the Corporation, hereby constitute and appoint Arvind Krishna, Michelle H. Browdy, Robert F. Del Bene, Simon J. Beaumont and Frank Sedlarcik and each of them, as my true and lawful attorneys-in-fact and agents, with full power to act, together or each without the others, for me and in my name, place and stead, in any and all capacities, to sign, or cause to be signed electronically any and all of said Registration Statements (which Registration Statements may constitute post-effective amendments to registration statements previously filed with the SEC), and any and all amendments to the aforementioned Registration Statements, and to file said Registration Statements and amendments thereto so signed with all exhibits thereto, with any and all other documents in connection therewith with the SEC, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof. This Power of Attorney may only be revoked by a written document executed by the undersigned that expressly revokes this power by referring to the date and subject hereof.

 

IN WITNESS WHEREOF, I, the undersigned, have executed this Power of Attorney as of this 27th day of September 2021.

 

  /s/ James J. Kavanaugh
  James J. Kavanaugh
  Senior Vice President and Chief Financial Officer

 

 

 

 

POWER OF ATTORNEY OF ROBERT F. DEL BENE 

 

KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned Vice President and Controller of International Business Machines Corporation, a New York corporation (the “Corporation”), which is to file with the Securities and Exchange Commission (the “SEC”) one or more Registration Statements on Form S-8, or other appropriate Form under the Securities Act of 1933 for shares of capital stock or other interests issuable upon the surrender of shares, or the exercise or surrender of any options or other interests that were issued by Turbonomic, Inc., in each case assumed or exchanged by the Corporation, hereby constitute and appoint Arvind Krishna, James J. Kavanaugh, Michelle H. Browdy, Simon J. Beaumont and Frank Sedlarcik and each of them, as my true and lawful attorneys-in-fact and agents, with full power to act, together or each without the others, for me and in my name, place and stead, in any and all capacities, to sign, or cause to be signed electronically any and all of said Registration Statements (which Registration Statements may constitute post-effective amendments to registration statements previously filed with the SEC), and any and all amendments to the aforementioned Registration Statements, and to file said Registration Statements and amendments thereto so signed with all exhibits thereto, with any and all other documents in connection therewith with the SEC, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof. This Power of Attorney may only be revoked by a written document executed by the undersigned that expressly revokes this power by referring to the date and subject hereof.

 

IN WITNESS WHEREOF, I, the undersigned, have executed this Power of Attorney as of this 27th day of September 2021.

 

  /s/ Robert F. Del Bene
  Robert F. Del Bene
  Vice President and Controller

 

 

 

 

POWER OF ATTORNEY OF IBM DIRECTOR

 

KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned Director of International Business Machines Corporation, a New York corporation (the “Corporation”), which is to file with the Securities and Exchange Commission (the “SEC”) one or more Registration Statements on Form S-8, or other appropriate Form under the Securities Act of 1933 for shares of capital stock or other interests issuable upon the surrender of shares, or the exercise or surrender of any options or other interests that were issued by Turbonomic, Inc., in each case assumed or exchanged by the Corporation, hereby constitute and appoint Arvind Krishna, James J. Kavanaugh, Michelle H. Browdy, Robert F. Del Bene, Simon J. Beaumont and Frank Sedlarcik and each of them, as my true and lawful attorneys-in-fact and agents, with full power to act, together or each without the others, for me and in my name, place and stead, in any and all capacities, to sign, or cause to be signed electronically any and all of said Registration Statements (which Registration Statements may constitute post-effective amendments to registration statements previously filed with the SEC), and any and all amendments to the aforementioned Registration Statements, and to file said Registration Statements and amendments thereto so signed with all exhibits thereto, with any and all other documents in connection therewith with the SEC, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof. This Power of Attorney may only be revoked by a written document executed by the undersigned that expressly revokes this power by referring to the date and subject hereof.

 

IN WITNESS WHEREOF, I, the undersigned, have executed this Power of Attorney as of this 27th day of September 2021.

 

  /s/ Thomas Buberl
  Director
   
  /s/ Michael L. Eskew
  Director
   
  /s/ David N. Farr
  Director
   
  /s/ Alex Gorsky
  Director
   
  /s/ Michelle Howard
  Director

 

 

 

  /s/ Andrew N. Liveris
  Director
   
  /s/ F. William McNabb III
  Director
   
  /s/ Martha E. Pollack
  Director
   
  /s/ Joseph R. Swedish
  Director
   
  /s/ Peter R. Voser
  Director
   
  /s/ Frederick H. Waddell
  Director

 

 

 

 

EXHIBIT 24.2

 

INTERNATIONAL BUSINESS MACHINES CORPORATION
CERTIFICATE OF THE SECRETARY

 

I, Frank Sedlarcik, the undersigned Secretary of International Business Machines Corporation, a New York Corporation, do hereby certify as follows:

 

Attached hereto as Exhibit A is a true copy of the resolutions adopted by the Board of Directors of International Business Machines Corporation, authorizing the officers of the Corporation to execute the Registration Statement, to which this certificate is attached as an exhibit, by power of attorney.

 

IN WITNESS WHEREOF, I have executed this certificate as of this 1st day of October, 2021.

 

  By: /s/ Frank Sedlarcik
    Frank Sedlarcik
    Secretary

 

 

 

 

Exhibit A

RESOLUTIONS REGARDING THE ACQUISITION OF TURBONOMIC, INC.

 

RESOLVED, that the acquisition of the Target, on substantially the terms and conditions presented, is hereby approved, and that each of the Chairman and Chief Executive Officer, Vice Chairman, President, any Senior Vice President, any Vice President, including the Vice President of Corporate Development (each, a “proper executive”), or any of them acting individually, be and hereby is, authorized and empowered to approve, execute and deliver in the name and on behalf of International Business Machines Corporation (the “Company”) any agreements, instruments, plans and other documents (and any amendments thereto) necessary or appropriate in connection with the acquisition, or any of the other matters or transactions related thereto, including without limitation the preparation, execution and filing of any merger or acquisition agreements, plans or certificates, the assumption of any stock, option, stock purchase or other plans of the Target, the acquisition, assumption or payment of any debt securities or warrants of the Target, or the delivery or issuance of shares of capital stock of the Company in substitution, exchange or payment therefor; and

 

RESOLVED, that the issuance of authorized but unissued shares or the delivery of treasury shares of Capital Stock, $.20 par value, of the Company (the “Shares”), in connection with the assumption of any stock, option or other plans of the Target, the acquisition, assumption or payment of any debt securities or warrants of the Target, or the delivery or issuance of shares of capital stock of the Company in substitution, exchange or payment therefore, is hereby authorized; and

 

RESOLVED, that the proper executives of the Company be, and hereby are, authorized and empowered to prepare for filing with the SEC under the provisions of the Securities Act of 1933, as amended, one or more registration statements relating to the Shares, and that each of, Arvind Krishna, Michelle H. Browdy, James J. Kavanaugh, Simon J. Beaumont, Robert Del Bene, and Frank P. Sedlarcik, be, and each of them hereby is, vested with full power to act, together or each without the others, in any and all capacities, in the name and on behalf of the Company to sign or cause to be signed electronically, such registration statements and any and all amendments to the aforementioned registration statements, and to file said registration statements and amendments thereto so signed with all exhibits thereto, and any and all other documents in connection therewith, with the SEC, and all actions in connection with the preparation, execution and filing of said registration statements with the SEC on behalf of and as attorneys for the Company are hereby ratified, approved and adopted in all respects; and

 

RESOLVED, that the proper executives of the Company be, and they hereby are, authorized in the name and on behalf of the Company, to take any and all action which they may deem necessary or advisable in order to effect the registration or qualification (or exemption therefrom) of the Shares for issue, offer, sale or trade under the Blue Sky or securities laws of any of the States of the United States of America as well as in any foreign jurisdiction and political subdivisions thereof, and in connection therewith to execute, acknowledge, verify, deliver, file or cause to be published any applications, reports, consents to service of process and other papers and instruments which may be required under such laws, and to take any and all further action which they may deem necessary or advisable in order to maintain any such registration, qualification or exemption for as long as they deem necessary or as required by law, and that the execution by such executives of any such paper or document, or the doing by them of any act in connection with the foregoing matters shall conclusively establish their authority therefor from the Company and the ratification by the Company of the papers and documents so executed and the actions so taken; and

 

RESOLVED, that the Company is hereby authorized to list the Shares on any public exchanges, and that the proper executives of the Company are hereby authorized on behalf of the Company to execute all listing applications, fee agreements and other documents in connection with the foregoing; and

 

RESOLVED, that the Company is hereby authorized to delist any equity securities or debt securities of the Target from any public exchanges within or outside the United States and the proper executives of the Company are hereby authorized on behalf of the Company to execute all delisting applications, fee agreements and other documents in connection with the foregoing; and

 

RESOLVED, that the proper executives of the Company be, and they hereby are, authorized to take all such further action and to execute all such further instruments and documents in the name and on behalf of the Company and under its corporate seal or otherwise, and to pay all fees, expenses and taxes as in their judgment shall be necessary, proper or advisable in order to fully carry out the intent and accomplish the purposes of the foregoing Resolutions; and

 

RESOLVED, that the proper executives of the Company shall have the authority to further delegate, in whole or in part, the authority provided in these resolutions to any other executive or employee of the Company or its subsidiaries.