As filed with the Securities and Exchange Commission on April 5, 2004
Registration No. 333-
===============================================================================
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 (I.R.S. Employer Identification No.)
of incorporation or organization)
NEW ORCHARD ROAD
ARMONK, NEW YORK 10504
(Address of Principal Executive Offices)
--------------------------
TRIGO TECHNOLOGIES, INC. 2000 STOCK PLAN, AS AMENDED
(Full Title of the Plan)
--------------------------
ANDREW BONZANI, ESQ.
ASSISTANT SECRETARY AND ASSOCIATE GENERAL COUNSEL
INTERNATIONAL BUSINESS MACHINES CORPORATION
ARMONK, NEW YORK 10504
(914) 499-1900
(Name, address and telephone number, including area code, of agent for service)
--------------------------
COPIES TO:
SCOTT A. BARSHAY, ESQ.
CRAVATH, SWAINE & MOORE LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
CALCULATION OF REGISTRATION FEE
====================================================================================================================
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED REGISTERED SHARE PRICE
--------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.20 per 175,000 [1] $6.71 [2] $1,174,250 [2] $148.78
share
--------------------------------------------------------------------------------------------------------------------
[1] Based on the number of shares subject to outstanding options under the
stock plan listed above as of April 5, 2004, divided by a conversion factor to
reflect the number of shares of IBM Common Stock for which such options are
exercisable pursuant to the Agreement and Plan of Merger dated as of March 5,
2004, among IBM, Austin Acquisition Corp. and Trigo Technologies, Inc. (the
"Merger Agreement").
[2] Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 on the basis of
the weighted average exercise price of the outstanding options under the stock
plan listed above as of April 5, 2004, multiplied by a conversion factor to
reflect the price at which such options could be exercised to purchase IBM
Common Stock pursuant to the Merger Agreement.
Pursuant to Rule 416 under the Securities Act of 1933, 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 while this registration statement is in effect, this registration
statement is hereby deemed to cover all of such additional common stock.
INTRODUCTORY STATEMENT
On March 5, 2004, International Business Machines Corporation
("IBM"), Austin Acquisition Corp. ("Austin") and Trigo Technologies, Inc.
("Trigo") entered into an Agreement and Plan of Merger (the "Merger
Agreement"). Pursuant to the terms of the Merger Agreement, Austin will merge
with and into Trigo, with Trigo being the surviving corporation and thereby
becoming a wholly owned subsidiary of IBM.
The Merger Agreement provides that at the effective time of the
merger, the terms of each outstanding option to acquire shares of Trigo common
stock granted under the Trigo Technologies, Inc. 2000 Stock Plan, as amended,
will be amended, and each such option will be converted into an option to
acquire, on the same terms and conditions, a number of shares of IBM common
stock in an amount and at an exercise price based on the formulas set forth in
the Merger Agreement.
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 of 1933, as amended (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 are incorporated by reference herein and shall be deemed a
part hereof:
(a) The Annual Report of IBM on Form 10-K for the fiscal year
ended December 31, 2003, filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act").
(b) All other reports filed by IBM pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 2003.
(c) The description of IBM's common stock, contained in IBM's
registration statements filed pursuant to Section 12 of 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.
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 common stock, par value $.20 per share,
offered hereby has been passed upon by Andrew Bonzani, Assistant Secretary and
Associate General Counsel of IBM. As of April 5, 2004, Mr. Bonzani
beneficially owns shares of IBM common stock, par value $.20 per share, and
options to purchase shares of IBM common 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 or any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, for which any director or
officer of the Corporation served in any capacity at the request of
the Corporation), by reason of the fact that such person or such
person's testator or intestate was a director or officer of the
Corporation, or served such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any
capacity, against 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
and shall include the right to be paid advances of any expenses
incurred by such person in connection with such action, suit or
proceeding, 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 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.
2
ITEM 8. EXHIBITS.
Exhibit Number Description
5.1 Opinion of Andrew Bonzani, Esq., Assistant Secretary and
Associate General Counsel, regarding the legality of the
securities being issued
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Andrew Bonzani, Esq., Assistant Secretary and
Associate General Counsel (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.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement 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.
(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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the
3
Securities 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
Securities Act and will be governed by the final adjudication of such issue.
4
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 5th day of April, 2004.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
By: /s/ Andrew Bonzani
--------------------------------
Name: Andrew Bonzani, Esq.
Title: Assistant Secretary and
Associate General Counsel
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 5th day of April, 2004.
Signature Title
* Chairman of the Board, President and
-------------------------------------- Chief Executive Officer (Principal
Samuel J. Palmisano Executive Officer)
* Senior Vice President and Chief
-------------------------------------- Financial Officer
John R. Joyce (Principal Financial Officer)
* Vice President and
-------------------------------------- Controller (Controller)
Robert F. Woods
* Director
--------------------------------------
Cathleen Black
* Director
--------------------------------------
Kenneth I. Chenault
* Director
--------------------------------------
Nannerl O. Keohane
* Director
--------------------------------------
Charles F. Knight
* Director
--------------------------------------
Lucio A. Noto
5
* Director
--------------------------------------
John B. Slaughter
* Director
--------------------------------------
Joan E. Spero
* Director
--------------------------------------
Sidney Taurel
* Director
--------------------------------------
Alex Trotman
* Director
--------------------------------------
Charles M. Vest
* 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/ Andrew Bonzani
-----------------------------------
Andrew Bonzani, Esq.
Attorney-in-Fact
6
EXHIBIT INDEX
EXHIBIT NO.
5.1 Opinion of Andrew Bonzani, Esq., Assistant Secretary and Associate
General Counsel, regarding the legality of the securities being
issued
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Andrew Bonzani, Esq., Assistant Secretary and Associate
General Counsel (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.
EXHIBIT 5.1
April 5, 2004
International Business Machines Corporation
New Orchard Road
Armonk, NY 10504
Ladies and Gentlemen:
I am Assistant Secretary and Associate General Counsel 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 the Trigo Technologies, Inc. 2000 Stock Plan, as
amended (the "Plan").
I have reviewed such documents and records as I have deemed necessary or
appropriate to enable me to express an informed 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 Plan, the Shares will be duly authorized,
legally issued, fully paid and nonassessable. The Plan does not require IBM
shareholder approval because directors and officers (as defined in Section 16
of the Securities Exchange Act of 1934, as amended) will not be receiving
awards under the Plan.
I hereby consent to the use of my name in the Registration Statement as
counsel who has passed upon the legality of the Shares, and to the use of this
opinion as an Exhibit to the Registration Statement.
Very truly yours,
/s/ Andrew Bonzani
--------------------------------
Andrew Bonzani, Esq.
Assistant Secretary and Associate
General Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 15, 2004 relating to the
financial statements, which appears in the 2003 Annual Report to Stockholders
of International Business Machines Corporation, which is incorporated by
reference in International Business Machines Corporation's Annual Report on
Form 10-K for the year ended December 31, 2003. We also consent to the
incorporation by reference of our report dated January 15, 2004 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
April 1, 2004
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Trigo Technologies, Inc. 2000 Stock Plan, as
amended, of our report dated January 15, 2004, included in International
Business Machines Corporation's Current Report on Form 8-K dated March 10,
2004, with respect to the statements of assets and liabilities and statements
of revenues and expenses of the Business Consulting Services Reporting Unit of
International Business Machines Corporation as of and for the year ended
December 31, 2003 and as of and for the three month-period ended December 31,
2002 (not included in Annual Report of International Business Machines
Corporation on Form 10-K for the year ended December 31, 2003).
/s/ Ernst & Young LLP
New York, New York
March 31, 2004
EXHIBIT 24.1
POWER OF ATTORNEY OF SAMUEL J. PALMISANO
KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned Chairman
of the Board, President 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") under the
provisions of the Securities Act of 1933 one or more Registration Statements
on Form S-3, S-4, S-8, and/or other appropriate Form, for shares of capital
stock of the Corporation or other interests issuable upon the exercise or
surrender of any options assumed or exchanged by the Corporation that were
issued by Trigo Technologies, Inc. hereby constitute and appoint Edward M.
Lineen, John R. Joyce, Robert F. Woods, Jesse J. Greene, Jr., Daniel E.
O'Donnell and Andrew Bonzani, and each of them, 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, and 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.
IN WITNESS WHEREOF, I, the undersigned, have executed this Power of
Attorney as of this 24th day of February 2004.
/s/ Samuel J. Palmisano
---------------------------------------
Samuel J. Palmisano
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY OF JOHN R. JOYCE
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") under the provisions of the
Securities Act of 1933 one or more Registration Statements on Form S-3, S-4,
S-8, and/or other appropriate Form, for shares of capital stock of the
Corporation or other interests issuable upon the exercise or surrender of any
options assumed or exchanged by the Corporation that were issued by Trigo
Technologies, Inc. hereby constitute and appoint Samuel J. Palmisano, Edward
M. Lineen, Robert F. Woods, Jesse J. Greene, Jr., Daniel E. O'Donnell and
Andrew Bonzani, and each of them, 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, and 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.
IN WITNESS WHEREOF, I, the undersigned, have executed this Power of
Attorney as of this 24th day of February 2004.
/s/ John R. Joyce
----------------------------------------
John R. Joyce
Senior Vice President and Chief
Financial Officer
POWER OF ATTORNEY OF ROBERT F. WOODS
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") under the provisions of the Securities Act of
1933 one or more Registration Statements on Form S-3, S-4, S-8, and/or other
appropriate Form, for shares of capital stock of the Corporation or other
interests issuable upon the exercise or surrender of any options assumed or
exchanged by the Corporation that were issued by Trigo Technologies, Inc.
hereby constitute and appoint Samuel J. Palmisano, Edward M. Lineen, John R.
Joyce, Jesse J. Greene, Jr., Daniel E. O'Donnell and Andrew Bonzani, and each
of them, 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, and
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.
IN WITNESS WHEREOF, I, the undersigned, have executed this Power of
Attorney as of this 24th day of February 2004.
/s/ Robert F. Woods
--------------------------------------
Robert F. Woods
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") under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-3, S-4, S-8, and/or other appropriate Form,
for shares of capital stock of the Corporation or other interests issuable
upon the exercise or surrender of any options assumed or exchanged by the
Corporation that were issued by Trigo Technologies, Inc. hereby constitute and
appoint Samuel J. Palmisano, Edward M. Lineen, John R. Joyce, Robert F. Woods,
Jesse J. Greene, Jr., Daniel E. O'Donnell and Andrew Bonzani, and each of
them, 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, and 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.
IN WITNESS WHEREOF, I, the undersigned, have executed this Power of
Attorney as of this 24th day of February 2004.
/s/ Cathleen Black
----------------------------------------------------
Cathleen Black
Director
/s/ Kenneth I. Chenault
----------------------------------------------------
Kenneth I. Chenault
Director
/s/ Nannerl O. Keohane
----------------------------------------------------
Nannerl O. Keohane
Director
/s/ Charles F. Knight
----------------------------------------------------
Charles F. Knight
Director
/s/ Lucio A. Noto
----------------------------------------------------
Lucio A. Noto
Director
/s/ John B. Slaughter
----------------------------------------------------
John B. Slaughter
Director
/s/ Joan E. Spero
----------------------------------------------------
Joan E. Spero
Director
/s/ Sidney Taurel
----------------------------------------------------
Sidney Taurel
Director
/s/ Alex Trotman
----------------------------------------------------
Alex Trotman
Director
/s/ Charles M. Vest
----------------------------------------------------
Charles M. Vest
Director
EXHIBIT 24.2
INTERNATIONAL BUSINESS MACHINES CORPORATION
CERTIFICATE OF THE ASSISTANT SECRETARY
I, Andrew Bonzani, the undersigned Assistant 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 5th
day of April, 2004.
By: /s/ Andrew Bonzani
---------------------------------------
Andrew Bonzani
Assistant Secretary
Exhibit A to Exhibit 24.2
RESOLUTIONS REGARDING
TRIGO TECHNOLOGIES, INC.
RESOLVED that the acquisition of Trigo Technologies, Inc., on
substantially the terms and conditions presented to the Board, is hereby
approved, and that the Chairman, President and Chief Executive Officer, any
Senior Vice President, the Vice President, Corporate Development, and any
other Vice President (each, a "proper executive"), be, and each of them
individually hereby is, authorized and empowered to approve, execute and
deliver in the name and on behalf of 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 or the delivery or issuance of shares of capital stock of the Company in
substitution, exchange or payment therefor; and
RESOLVED that the Board of Directors of the Company hereby
authorizes 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 or
the delivery or issuance of shares of capital stock of the Company in
substitution, exchange or payment therefor; and
RESOLVED that the proper executives of the Company be, and hereby
are, authorized and empowered to prepare for filing with the Securities and
Exchange Commission (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 Samuel J. Palmisano, Edward M. Lineen, John R. Joyce, Robert
F. Woods, Jesse J. Greene, Jr., Daniel E. O'Donnell and Andrew Bonzani, 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 officers 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 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 fully to
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 officer or employee of the Company or its
subsidiaries.