Company Name: Int'l. Business Machines Corp.
Public Availability Date: January 2, 2004Document Sections:
INQUIRY LETTER
APPENDIX 1
APPENDIX 2
APPENDIX 3
STAFF REPLY LETTER [INQUIRY LETTER]
December 1, 2003 Securities and Exchange Commission
Office of Chief Counsel
Division of Corporation Finance
450 Fifth Street, N.W., Judiciary Plaza
Washington, D.C. 20549 Subject: IBM 2004 Shareholder Proposal of Patrick F. Napolitano
Ladies and Gentlemen: Pursuant to Rule 14a-8(j) under the Securities Exchange Act of 1934, I am
enclosing six (6) copies of a submission dated October 26, 2003 (the "Proposal")
from Mr. Patrick F. Napolitano (hereinafter the "Proponent"), a former employee
of International Business Machines Corporation (the "Company" or "IBM") (See
Exhibit A). IBM believes the Proposal, described by the Proponent again this
year as another "PRO PATRIA AMERICA" Proposal, may be properly omitted from the
proxy materials for IBM's 2004 annual meeting of shareholders (the "2004 Annual
Meeting") on the grounds discussed below. To the extent that the reasons for omission stated in this letter are based on
matters of law, these reasons are the opinion of the undersigned as an attorney
licensed and admitted to practice in the State of New York.
I. THE COMPANY AGAIN REQUESTS CABOT1 RELIEF WITH RESPECT TO THE INSTANT
PROPOSAL, AS IT ASKS FOR THE SAME RELIEF AS THE PROPOSAL PREVIOUSLY SUBMITTED BY
THE PROPONENT FOR WHICH CABOT RELIEF WAS EXPLICITLY PROVIDED FOR IN CONNECTION
WITH PROPONENT'S 1994 SUBMISSION, AND WHICH RELIEF WAS SUBSEQUENTLY GRANTED TO
THE COMPANY BY THE STAFF IN CONNECTION WITH THE PROPONENT'S 1997, 2000, 2001 AND
2002 SUBMISSIONS. In 1994, in connection with the Proponent's submission for consideration in
connection with our 1995 proxy statement, the staff concurred in the Company's
request to omit the entire submission under former Rule 14a-8(c)(4) as relating
to the Proponent's long-standing personal grievance against the Company. See
International Business Machines Corporation (December 29, 1994). More
importantly, however, following a careful review of the Proponent's history in
this arena, which was evidenced by his long-standing and repeated abuse of the
shareholder proposal process with IBM going as far back as 1979,2 the Commission
also granted the Company's specific request for future relief as it would apply
to similar submissions from this particular stockholder. Such relief, known
colloquially as Cabot-type relief, provided specifically that:
This response shall also apply to any future submissions to the Company of a
same or similar proposal by the same proponent. The Company's statement under
rule 14a-8(d) shall be deemed by the staff to satisfy the Company's future
obligations under 14a-8(d) with respect to the same or similar proposals
submitted by the same proponent. International Business Machines Corporation (December 29, 1994). A copy of the
1994 Proposal, together with the Commission's 1994 no-action letter to the
Company relating thereto are both set forth in Exhibit B hereto.
In 1997, when the Proponent again lodged a similar proposal in connection with
our 1998 proxy statement, the Company submitted another no-action letter request
to exclude the submission. Following a review of the Proposal, the staff
specifically informed the Company that the proposal could be omitted, inasmuch
as it fell within the "forward looking" provisions of the staff's 1994 letter to
IBM. In particular, the staff wrote: Noting that the proposal appears to be similar to the same proponent's proposal
in International Business Machines Corp., December 29, 1994, we believe that the
forward-looking relief that we provided in that earlier response is sufficient
to address his recent proposal. Accordingly we believe that a specific no-action
response is unnecessary. See staff letter to IBM (January 6, 1998) (also attached as Exhibit C to IBM's
no-action request letter dated November 19, 2001). In 2000, the Proponent resurfaced with another stockholder proposal. By letter
December 6, 2000, the Company again requested Cabot relief. The staff granted
such relief by letter dated January 10, 2001, providing IBM with the same
response as 1998. See staff letter to IBM (January 10, 2001) (attached as
Exhibit D to IBM's no-action request letter dated November 19, 2001).
In 2001, after the Proponent filed another proposal, the staff again granted
Cabot relief for the 2002 proxy statement. See International Business Machines
Corporation (December 20, 2001). Last year, after the Proponent came in again with yet another proposal, the
staff again granted Cabot relief to IBM. See International Business Machines
Corporation (January 15, 2003) (See Exhibit C). The Proponent, unbeknownst to
IBM, appealed the staff's decision, and by letter dated April 8, 2003, the staff
properly denied the Proponent's request for reconsideration, copying IBM on the
staff's response (See Exhibit C). The Proponent has again resurfaced, and has now filed another stockholder
proposal for the 2004 proxy statement (See Exhibit A). He again seeks relief
similar to what he sought in his 1994 proposal. As a result, we must again
request Cabot relief for the 2004 proxy statement. The instant Proposal,
entitled: "IA PRO PATRIA AMERICA PETITIONS FOR CORPORATE - FIDUCIARY
DUTY-GOVERNANCE," although garbled and replete with personal invective, seeks
for the Board to act "BY IMMEDIATELY EFFECTUATING THE SEPARATION INDIVIDUALIZATIONOF THE CHIEF
EXECUTIVE OFFICERS' POSITION FROM THAT OF THE CHAIRMEN OF THE BOARD...." (sic).
(See Exhibit A) As noted above, the current Proposal seeks relief identical to one of the
actions the Proponent would have had the Company take in the Proponent's 1994
Pro Patria Americal Proposal on Corporate Governance. In this connection, the
Proponent's 1994 Proposal sought, among other things, for the Company to
"INDIVIDUALIZE CEO-CHAIR POSITIONS." A copy of the complete text of the
Proponent's 1994 Proposal is attached in Exhibit B for the convenience of the
staff. The Proponent's tune has not changed over the years. He seeks the same relief
through his stockholder proposals, and, even more notably, the Proponent calls
this fact out himself. As an integral part of the Proponent's continuing attack
on the Companyfirst, for firing him, and then, for not reinstating him to
active employmentthe Proponent this year writesboth in the supporting
statement to the current Proposal as well as in his cover letter to the
Proposalthat the instant Proposal seeks the same relief as he had earlier
sought in his 1994 and 1997 stockholder proposals to the Company. In this
connection, the Proponent states in the last sentence of his supporting
statement to the Proposal: "JUST THINK WHAT MIGHT HAVE BEEN HAD THE S.E.C. APPROVED THE 1994 OR 1997 IA PRO
PATRIA AMERICA PETITIONS FOR THE SEPARATION OF CEO AND CHAIR POSITIONS. PERHAPS
NO BUBBLE, REDUCED CRIMINAL FRAUD." (sic) (See Exhibit A) (emphasis added)
Were this not enough, the Proponent's cover letter to the instant Proposal also
advances the same thoughtthat he himself had recommended this action some time
ago, and that we have not implemented it. On line 6 of the letter accompanying
the Proposal, the Proponent writes: "IRREFUTABLE, THE DIRE NEEDREQUIREMENT IN OUR NATION'S VITAL INTERESTSFOR THE
SEPARATION OF THE CEO POSITION FROM THAT OF THE CHAIRMAN'S POSITIONTO ENSURE AN
INDEPENDENT, FULLY COMMITTED TOAND ACCESSIBLE BYTHE SHAREHOLDERS - EFFECTIVE
BOARD CHAIRMAN AND DIRECTORS, WAS CLEARLY EVIDENT, AB INITIO, AND RECOMMENDED IN
PROPONENT- RELATOR'S IA PETITIONS PRO PATRIA PETITIONS TO IBM, et al., AS
EXEMPLIFIED IN THE REFERENCED 1994 AND 1997 1A PETITIONS...." (sic)
(See cover letter to Exhibit A)(emphasis added)
From the above, we can clearly see that the Proponent, sua sponte, has called
out that he is again seeking the same relief as he did in 1994 and 1997 (i.e.,
separation of the Chairman from the CEO). In addition to the fact that his own
two references this year to his earlier proposals from 1994 and 1997 simplifies
the Cabot3 analysis, it is clear the Proponent hasn't evened the score, and is
using this tool simply to harass IBM. It is unfortunate that the instant Proponent continues to blame IBM for his own
miscues; like a broken record, he still seeks retribution for actions that
occurred almost two generations ago, by persons who for the most part, are
either retired, dead, or otherwise long gone from IBM. Not only is the present
submission impermissible under Rule 14a-8(i)(4), see Argument II, infra, the
Proposal is also clearly subject to exclusion under the Cabot rationale. Hence,
consistent with the position of the staff to the Company in connection with the
Proponent's 1994, 1997, 2000, 2001 and 2002 submissions, under which the staff
afforded "forward-looking" relief under Cabot, the Company again requests such
relief for the instant Proposal. See Unocal Corporation (March 30, 2000)(recent
grant of Cabot-type relief). The Proponent continues to dwell on the same themes
as he did in his 1994, 1997, 2000 and 2001 and 2002 submissions(the allegedly
wrongful, illegal and/or immoral acts of the Company)to which the staff
initially offered (in 1994), and has four times since provided Cabot relief. The
Company is now hereby again providing this statement to the staff and the
Proponent, in a manner consistent with the directive of the staff and current
Rule 14a-8(j), in order to satisfy the Company's obligations with respect to the
exclusion of the instant Proposal. The Company now respectfully requests the
concurrence of the staff that Cabot treatmenti.e., the "forward-looking relief"
that the staff provided to IBM earlier-will again apply to exclude the instant
Proposal from our proxy statement. II. THE PROPOSAL MAY ALSO BE OMITTED UNDER RULE 14a-8(i)(4) AS A PERSONAL
GRIEVANCE DESIGNED TO RESULT IN A BENEFIT TO THE PROPONENT WHICH IS NOT SHARED
WITH OTHER IBM SHAREHOLDERS AT LARGE. The Company firmly believes that Cabot relief, as formally requested in Argument
I, is again proper. In addition, however, Rule 14a-8(i)(4) clearly permits
omission of a proposal that relates to the redress of a personal claim or
grievance against the company, or if it is designed to result in a benefit to
the proponent or to further a personal interest, which benefit or interest is
not shared with other shareholders at large. This is precisely such a situation.
The Proponent's instant submission is at least the Proponent's fourteenth (14th)
formal stockholder "PRO PATRIA AMERICA" (sic) proposal submitted to the Company,
and the latest of dozens of other correspondences sent to the Company, its Board
members, and others over the years, all emanating out of his termination of
employment from IBM in 1970. The instant Proposal is no more than another
twisted manifestation of his long-standing personal vendetta against the Company
for terminating his employment from the Company thirty-three (33) years ago.
As noted above, the last time the Proponent submitted documentation requiring
the Commission's attention under Rule 14a-8 in 2002, we noted to the Commission
that the Proponent's submission consisted of a variety of allegations lambasting
the Company and its management. We will not repeat all of these allegations.
Reference, however, is made to the Company's no-action letter requests
(including attachments) resulting in the staff's position with respect to this
Proponent's submissions: International Business Machines Corporation (December
29, 1994); International Business Machines Corporation (January 6, 1998);
International Business Machines Corporation (January 10, 2001); International
Business Machines Corporation (December 20, 2001) and International Business
Machines Corporation (January 15, 2003, reconsideration denied, April 8, 2003).
In addition, by way of further background, the Company's 1994 letter to the
Commission, International Business Machines Corporation (December 29, 1994),
seeking no-action relief under former Rule 14a-8(c)(4), also provided a great
amount of detail on the history this particular Proponent has had with the
Company over the years; of the Proponent's deep-seated animosity toward the
Company and its officers and directors following his termination in 1970; for
the Company's refusal to reinstate him to active IBM employment; of the
Proponent's subsequent abuse of the shareholder proposal process as a means for
getting even with the Company, and for the Proponent's attempt to vent publicly
his personal grievances in other correspondence. Nothing has changed.
Moreover, there have beenand continue to beother correspondences, some of
which the Proponent has sent directly to the SEC without copying the
undersigned. Other than to reference the Company's earlier letters for the
convenience of the staff, the Company will not repeat all of their details.
However, it is clearly evident that the Proponent's animosity toward the Company
has not abated, as evidenced by his ongoing and continuous correspondence to the
SEC, the Company, and others, containing a variety of false and misleading
statements, as well as the now annual proposals as a stockholder, seeking
retribution against the Company for these same allegedly wrongful activities.
This year's Proposal is merely another attempt to punish IBM for his being fired
from IBM 33 years ago. As described, infra, the Proponent continues to re-raise
these same matters over and over with the Company. Further comparisons of the
proposals, as well as other interim correspondence, reveal that we continue to
see the Proponent's showing his scorn for the Company for its unwillingness to
adhere to the Proponent's personal demands. The Proponent continues to point to
current and historical events, and he attempts to assert that the Company has
not acted in a forthright manner with him. Further, as can be seen from his
earlier correspondence in connection with the 1994, 1997, 2000, 2001 and 2002
letters, the Proponent's continues to rehash his own claim that IBM did not
treat him in a forthright manner; first he believes IBM should not have
terminated his employment, and second, that IBM management should have adhered
to various basic beliefs of the Company, and reinstated him to employment. The
Proponent has manifested this theme in different ways. For example, in the 1997
proposal, he wrote: "Board & Officers' failuresdereliction of duties, being
utter conflict of interests, flagrant discrimination, violations of policies,
rules, regulations, guidelines, prescriptive `beliefs', contractsvirtual booty
before duty" . (sic) (See Exhibit G to IBM's no-action request letter dated November 19, 2001, page 3
of 9) Similarly, the Proponent's 2000 submission stated:
"IBM persists in betraying IBM's alleged (false pretenses?) `Beliefs'Legally
binding prescriptive contracts to profit wrongful IBM at the expense of IBM's
employees and IBM's integrity, chronicling a pattern of culpable IBM misprision
as manifested in the Chair's unethical practiced penchant for stifling free
speech in pursuit of constitutional rights of employees to due process for
redress of grievances...." (See Exhibit F to IBM's no-action request letter dated November 19, 2001)
Last year, the Proponent's submission provided, in part, that:
IRREFUTABLE, IBM AWRY, ENTRENCHED IN THE REFUGE OF HYPOCRITICAL SUBTERFUGE,
SURREPTITIOUSLY - ABUSING AGENCY RULES AND REGULATIONS TO VITIATE U.S.
CONSTITUTIONEVADES CRUX OF LAWFULLY MANDATED PRO PATRIA AMERICA! PETITIONS,
AIDED AND ABETTED BY AGENCY - PETITIO PRINCIPIIFALLACIOUSLY ASSUMING IBM
PREMISE FOR REJECTION WHICH IBM FAILS TO PROVE; AGENCY "BEGS THE QUESTION,"
WRONGFULLY RULES - NON SEQUITOR - REJECTS PROPOSALS. (See Exhibit A to IBM's no-action letter request dated December 16, 2002).
This year's Proposal, filed in October 2003, is also no different. As the
Proponent writes within the supporting statement to the current Proposal:
EXTREMELY ARBITRARY (TYRANNICAL CULPABLE IBM - FED AIDED & ABETTED, RELENTLESSLY
WRONGFULLY EXCORIATES - CRUCIFIES - SUPPRESSES (CONSPIRED MISPRISION, DELIBERATE
DERELICTION OF DUTY, DESTRUCTION OF JUSTICE AND THE BILL OF RIGHTS, etc) PRO
PATRIA AMERICAIS PROPONENT RELATOR'S IA PETITIONS FOR BEING THE PROPONENT'S
PERSONAL GRIEVANCES "CRUSADE FOR AMERICA AGAINST ARBITRARY IBM's HISTORIC,
CULTURAL IMPERATIVE CRIMINAL FRAUD, INEXPIABLE IBM CRIMES PERPETRATED,
PERPETUATED UNAVENGED AGAINST HUMANITY AND AMERICA!..."
(See Exhibit A) To better understand what is going on here, additional information about the
Proponent's own IBM history can be gleaned from various other correspondence the
Proponent has written. To this end, as recently as September 2, 2003, the
Proponent wrote to our Chairman and CEO, Samuel J. Palmisano, complaining about
his own IBM employment history (which ended in 1970), including how the
Proponent believed he was wronged by IBM. (See Exhibit D) In appealing to Mr.
Palmisano to right IBM's wrongs and reinstate him (after 33 years), the
Proponent wrote: IBM's "CONSPIRED TYRANNY PERMANENTLY TRAUMATIZED ME ON THE MISCREANT IBM
MALMANAGEMENT'S DEATH TRAP THEY DELIBERATELY INSTALLED ON THE U.S.A.F. B-52
BOMBER AIRCRAFT SYSTEM ENVIRONMENTAL TEST FACILITY.....IBM CRIMINALLY SCARRED,
SCARED AND SCREWED US FOR DEATH, TO COVER MISCREANT MANAGEMENT'S MISERABLE
BUTTS, TERRORIZED US IN EXTREMIS - DENIGRATED US TO IBM WATSON'S VIRULENT VILE
"MEASURED MILE" IBM MOBIA'S KISS OF DEATH ROW TO FORCE RESIGNATION OR ENDURE IBM
CONSPIRED TERMINATION. IBM ASSAULTED INTIMIDATED, DENIGRATED US, THEN WITHOUT
CAUSE AND DEFORCED OF RECOURSE, UNLAWFULLY, WRONGFULLY FIRED US, DISGRACED,
SLANDERED, LIBELED US RELENTLESSLY. AUTOCRATIC WASTES, CRONY C.O.L.A.G.DIRECTORS
VIRULENTLY PERPETRATE AND PERPETUATE UNLAWFUL DIABOLICALLY CONSPIRED INEXPIABLE
CRIMES, INFERNAL ATROCITIES AGAINST ME AND MY FAMILY, VIA FACTA, IBM's EVIL
UNLAWFUL, ULTRA VIRES RETALIATION FOR OUR DUTIFUL PERSEVERANCE IN OUR BONA FIDE
PRO PATRIA IMPERATIVE DUTIES TO LAWS GOD AND COUNTRY..."
"....I PUT AMERICA'S INTERESTS AND IBM's INTEREST ABOVE MY FAMILY'S VITAL
INTERESTS MUCH TO MY UTTER CHAGRINA MONUMENTAL MISTAKE, FOR IN THE COURSE OF
EVENTS IT BECAME VERY CLEAR THAT IBM CORP WATSONS C.O.L.A.-G, et al, ARE THE
VERY WORST OF THE WORLDS WORST TYRANTS, AND THE SOURCE OF IBM's EVIL OMNIPOTENT
POWER$..." ... EVIL WATSON's IBM BETRAYED US, DESTROYED OUR LIVES, OUR RIGHTS TO FREEDOM
FROM TYRANNY ... (sic) (See Exhibit D)
After nearly a full page of the Proponent's describing his side of his
termination from IBM and his fruitless attempts for reinstatement, including his
view of IBM's: "PERSECUTION OF US IN EXTREMIS INHERENT TO IBM's REIGN OF TERROR, LEGACY OF
TYRANNY!, CONSPIRED PERPETRATIONS AGAINST US BY WICKED WATSON, EGREGIOUSLY
PERPETUATED AGAINST US....", the Proponent concluded his letter, somewhat incredibly, by stating:
"WILL YOU PLEASE RIGHT IBM's WRONGS? WE DESERVE REINSTATEMENT - CLOSURE. N.B.
PLEASE ADVISE US THE AMOUNT OF OUR ACCRUED PENSION - 48 YEARS."
(See Exhibit D) This letter, like all the others, was unsolicited, and is wholly outside of the
annual proxy statement process. However, it is valuable because it provides us
with a fresh view from the Proponent of his long-standing personal grievance
with IBM. More importantly, the Proponent's letter also provides us with a clear
and direct linkage between the Proponent's own history, his personal grievances
with IBM, and his habitual filing of stockholder proposals with the IBM
Secretary's office. In this connection, in the penultimate paragraph of his
letterimmediately before the Proponent's request for reinstatementthe
Proponent refers directly to his many stockholder proposals; in the Proponent's
unique parlance, the "IA PETITIONS PRO PATRIA AMERICA!"
The Proponent notes his view that his grievance-related stockholder proposals
are all valid and that we have been unlawfully suppressing them.
"THE PREMISES-CLAIMS, CHARGES AGAINST IBM OF OUR BONA FIDE IA PETITIONS FOR PRO
PATRIA AMERICA! ARE FACTUAL, OF EMINENT LEGAL MERITBASED IN CONSTITUTION LAW,
INTER ALIOS, HAVE NOT, CANNOT BE REFUTED BY IBM, DESPITE IBM's UNLAWFUL CONDUCT
IN SUPPRESSING - MALIGNANT MISPRISION SAID PETITIONS."
(See Exhibit D) The Proponent's linkage of his PRO PATRIA AMERICA! stockholder proposals to his
long-standing personal grievances with IBM cannot be more obvious. In one
document, we can see the entire picture. A disgruntled ex-employee who continues
to seek reinstatement, and who continues to file stockholder proposals because
we won't reinstate him. Were it not already evident from the Proponent's
long-standing history with IBM, as set forth in the undersigned's letters to the
staff, the Proponent has now, on his own, linked his own personal grievances
with IBM to his ongoing filing of stockholder proposals. Since we will not
reinstate him, given his history, it is likely that the Proponent will continue
his own personal crusade against IBM for terminating him in 1970 and not
reinstating him, but we continue to maintain that the 14a-8 process should not
be a part of the Proponent's arsenal going forward. But this is hardly new news. See International Business Machines Corporation
(February 5, 1980), infra. In addition, by way of recent comparison, we received
many other letters from the Proponent over the years. In 2001, he sent us a
similar letter, attached as Exhibit H to IBM's no-action request letter dated
November 19, 2001. The Proponent's personal grievances, found in such other
interim correspondences, have clearly not abated. In IBM's 2000 submission to
the SEC, the Company also cited an April 8, 1999 letter from the Proponent.
After lambasting the Company's former chairman and the board, in another
reference to himself and his personal situation, the Proponent noted that:
"We suffer 40 years+IBM criminally inflicted injury, fraud, deprivation of our
rights, persecution in extremis at the bloody hands of venal, evil IBM for our
adherence to principles "Beliefs," dedication to imperative duty in the service,
defense of America!" (See Exhibit I to IBM's no-action request letter dated November 19,
2001-penultimate paragraph) Were this not enough, these correspondences can also be compared to the May 9,
2001 letter we received from the Proponent complaining about his own personal
situation on how he was wrongfully fired from IBM and not reinstated. (See
Exhibit H to IBM no-action request letter dated November 19, 2001) For example,
the May 9, 2001 correspondencea six page submission with attachmentsthe
Proponent stated, in the fifth paragraph of the first page:
ALAS, VIRULENTLY VENAL IBM, ab initio CONTINUUM, PERSISTS IN IBM'S DELIBERATE,
DIABOLICALLY OPPOSED TO MANIFEST TRUTH & REASON, DERELICTION OF IBM'S IMPERATIVE
FIDUCIARY DUTIES, i.e., IBM PERPETUATES THE ENORMOUS WICKEDNESS OF WATSON IBM'S
BRUTAL BREACH OF LEGALLY BINDING FEDERAL - IBM CONTRACTS, IBM `BELIEFS' -
CONTRACTS IBM WITH MY FAMILY & ME. N.B. WIDELY KNOWN TO IBM LINE, EXECUTIVE, SENIOR MANAGEMENT AS MATTERS OF FACT
AND IBM'S OFFICIAL LEGALLY DOCUMENTED & IBM AUTHORITATIVELY VALIDATED RECORDS IN
THE CHAIRMEN, BOARDS' POSSESSION AND KNOWLEDGE, MISCREANT IBM MANAGEMENT
CRIMINALLY BURNED MY BRAIN THEN BUSTED MY BUTT4ON THE U.S.A.F. B-52 BOMBER &
NASA MANNED FLIGHT (e.g. SATURN) PROGRAMS - SERVICE CONNECTED DISABILITY -
ROBBED US OF ALL OUR RIGHTS, RESOURCES RECOURSE TO CONSTITUTIONAL "GUARANTEED,
UNALIENABLE RIGHTS," RAVAGED OUR LIVES AND WRONGFULLY FIRED US FOR OUR DUTIFUL
PERSEVERANCE TO PRINCIPLES, ETHICS RULE OF LAW REQUIRED REFUSAL OF CHAIRS'
COERCIVE ULTIMATUM TO GO ALONG WITH, OR BE FIRED BY IBM'S VENAL M.O.B.I.A. IBM'S
INIQUITOUS BOONDOGGLE MANAGEMENT'S MALIGNANT MISPRISION OF BARRATRY, INSATIABLE
ARROGATION - COESSENTIALLY, "IBM'S UNLAWFUL PREDATORY MONOPOLY (U.S.D.O.J.). THE
CHAIR'S RUTHLESS ULTIMATUM WAS ILLEGAL. AS CHAIR KNEW, IBM DID THE CRIMES, WE -
IBM'S VICTIMS - WERE FORCED BY THE CHAIR TO SUFFER LIFETIMES FOR MISCREANT IBM'S
CRIMES! (See Exhibit H to IBM's no-action request letter dated November 19, 2001 page 1
of 6)(emphasis added) It is clear that the issues raised in the Proponent's most recent letters are
also the very same ones contained in many of his earlier correspondences. The
Proponent remains enraged at IBM because he was fired by the Company so many
years ago, and he continues to misuse the shareholder proposal process to get
back at the Company, sometimes writing letters to the staff without copying the
undersigned, as I have requested him to do each year. Anyone already familiar with the Proponent's history with IBM, or who reads
through the undersigned's December 5, 1994, November 30, 1997, December 6, 2000,
November 19, 2001 and December 16, 2002 letters to the Commission regarding such
history, can also see that absolutely nothing has changed between the Proponent
and the Company. Moreover, it is crystal clear that the Proponent is again
merely attempting to twist and misuse the stockholder proposal process to
advance his own, self-serving personal ends. This is a gross misuse of the
stockholder proposal process, and a waste of time for both the Company as well
as the staff of the Division of Corporation Finance. Each of the other letters written by the Proponent over the yearswhich have
been included in earlier filings with the Commissionalso make abundantly clear
that the Proponent, in his own mind, has never evened the score with the
Company. The Proponent, through the attempted misuse of the shareholder proposal
process, is once again attempting to hold current IBM management accountable for
his termination from the Company in 1970, and is once again attempting to employ
the shareholder proposal process to air his personal grievances.
The staff is also painfully aware of this tortured history. As far back as the
Division's letter to the Company dated February 5, 1980, which letter also
addressed this very Proponent, the Division's recognition of misuse of the
shareholder proposal procedure by this disgruntled former employee was clearly
articulated. The staff's no-action letter stated: After consideration of the information contained in your letter and the exhibit
thereto, this Division believes that there may be some basis for your view that
the proposal may be omitted in reliance upon Rule 14a-8(c)(4). In the Division's
view, despite the fact that the proposal is drafted in such a way that it may
relate to matters which may be of general interest to all shareholders, it
appears that the proponent is using the proposal as one of many tactics designed
to redress an existing personal grievance against the Company. (emphasis added)
International Business Machines Corporation (February 5, 1980)
These words again ring true as it applies to the instant Proponent and this
year's Proposal, almost twenty-three years (and at least 13 stockholder
proposals) later. The Commission long ago established that the purpose of the stockholder proposal
process is "to place stockholders in a position to bring before their fellow
stockholders matters of concern to them as stockholders in such corporation."
Release 34-3638 (January 3, 1945). The purpose of current Rule 14a-8(i)(4) is to
allow companies to exclude proposals that involve disputes that are not of
interest to stockholders in general. The provision was developed "because the
Commission does not believe that an issuer's proxy materials are a proper forum
for airing personal claims or grievances." Release 34-12999 (November 22, 1976).
In this connection, the Commission has consistently taken the position, see
Proposed Amendments to Rule 14a-8 Under the Securities Exchange Act of 1934
Relating to Proposals by Security Holders, Exchange Act Release No. 34-19135
(October 14, 1982), that Rule 14a-8(i)(4) is intended to provide a means for
shareholders to communicate on matters of interest to them as shareholders. In
discussing the predecessor Rule [Rule 14a-8(c)(4)], the Commission stated:
It is not intended to provide a means for a person to air or remedy some
personal claim or grievance or to further some personal interest. Such use of
the security holder proposal procedures is an abuse of the security holder
proposal process, and the cost and time involved in dealing with these
situations do a disservice to the interests of the issuer and its security
holders at large. See Exchange Act Release No. 19135 (October 14, 1982).
It is by now clear beyond peradventure that the Proponent's personal grievances,
however styled and in whatever format, are of no interest to IBM stockholders at
large. In this vein, the Commission has recognized that where: (i) a proponent has a
long-standing history of confrontation with a company, and (ii) that history is
indicative of a personal claim or grievance within the meaning of Rule
14a-8(i)(4) [and its predecessor Rule 14a-8(c)(4)], a proposal may be excludable
on this ground even though, on its face, it does not reveal the underlying
dispute or grievance. See The Southern Company (January 23, 2003); International
Business Machines Corporation (December 18, 2002); Burlington Northern Santa Fe
Corporation (February 5, 1999)(proposals relating to company's operations
properly excluded as personal grievance); International Business Machines
Corporation (November 17, 1995)(disgruntled former employee); Pfizer, Inc.
(January 31, 1995)(disgruntled former employee); International Business Machines
Corporation (December 29, 1994); International Business Machines Corporation
(December 22, 1994)(involving the instant, disgruntled former employee); Cabot
Corporation (November 4, 1994; November 29, 1993; December 3, 1992; November 15,
1991; September 13, 1990; November 24, 1989; November 9, 1988, and October 30,
1985). In its 1994 no-action letter to Cabot Corporation, the staff specifically
permitted Cabot to apply its response to any future submissions to Cabot of a
same or similar proposal by the proponent. See also Unocal Corporation (March
30, 2000)(recent grant of Cabot type relief under Rule 14a-8(i)(4));
International Business Machines Corporation (November 22, 1995 and December 29,
1994)(in two separate letters regarding separate proponents staff permitted both
responses to apply to any future submissions to the Company of a same or similar
proposal by same proponents); Texaco, Inc. (February 15, 1994)(Staff also
permitted Texaco to apply personal grievance ruling to any future submissions of
the same or similar proposals by the same shareholder). The same result should
apply here. The staff has often utilized the personal grievance exclusion to omit proposals
in cases where the stockholders were using proposals as a tactic to redress a
personal grievance against the Company notwithstanding that the proposals were
drafted in such a manner that they could be read to relate to matters of general
interest to all shareholders. See Southern Company (February 12, 1999); Pyramid
Technology Corporation (November 4, 1994)("the proposal, while drafted to
address a specific consideration, appears to be on in a series of steps relating
to the long-standing grievance against the company by the proponent); Texaco,
Inc. (February 15, 1994 and March 18, 1993); Sigma-Aldrich Corporation (March 4,
1994); McDonald's Corporation (March 23, 1992); American Telephone & Telegraph
Company (January 2, 1980). Since the shareholder proposal process is not
intended to be used to air or rectify personal grievances, we continue to
believe Rule 14a-8(i)(4) provides a fully adequate basis in this case for
omitting the instant Proposal from the proxy materials for the Company's 2004
Annual Meeting. The Company therefore respectfully requests that no enforcement
action be recommended if it excludes the Proposal pursuant to Rule 14a-8(i)(4).
III. THE PROPOSAL MAY BE OMITTED UNDER RULE 14a-8(i)(3) AS CONTRARY TO THE PROXY
RULES, INCLUDING RULE 14a-9, WHICH AMONG OTHER THINGS PROHIBITS VAGUE AND
INDEFINITE AS WELL AS FALSE AND MISLEADING STATEMENTS IN PROXY SOLICITING
MATERIALS. Rule, 14a-8(i)(3) permits a registrant to exclude a proposal from its proxy
statement if the proposal is either vague and indefinite or materially false and
misleading. Joseph Schlitz Brewing Company (March 21, 1977). This Proposal is
both vague and indefinite as well as materially false and misleading. It is
clear only that the Proponent is seeking retribution against IBM. Furthermore,
the wealth of unintelligible spin the Proponent has providedon events he might
be familiar withis both vague and indefinite under Rule 14a-8(i)(3) as well as
materially false and misleading under Rule 14a-9. Moreover, even if stockholders
at large were to otherwise come to know the Proponent and the true circumstances
behind the Proposal, the Company reiterates that our proxy statement is not the
place for the Proponent to be airing these false and misleading statements, or
otherwise venting his frustrations by pointing the finger at others for his own
sorry situation. The instant submission exemplifies what Rules 14a-8(i)(3) and
14a-9 are designed to address. In the case of NYC Employees' Retirement System
v. Brunswick Corp., 789 F. Supp. 144, 146 (S.D.N.Y. 1992), the court stated:
"the Proposal as drafted lacks the clarity required of a proper shareholder
proposal. Shareholders are entitled to know precisely the breadth of the
proposal on which they are asked to vote." The instant Proposal is similarly
infirm. In addition to being in large part vague and unintelligible, like the
RESOLVED section, the introductory "WHEREAS" section, together with resolution
and the paragraphs following it, together constitute an amalgam of disjointed
statements, materially false and misleading accusations against IBM and its
management, unattributed and unverifiable references to events known to the
Proponent, and other incomprehensible hyperbole. In short, the submission fails
to meet the requirements for a stockholder proposal. While the Proponent
advances his own obtuse claims in the Proposal as factual in nature, nearly all
of it is his opinion, which is not shared by IBM. Moreover, the few statements
contained therein which might be factual are unclear to anyone not familiar with
the Proponent and his IBM history, as well as woefully incomplete. The Proponent
continues to falsely accuse the Company and its directors and officers of
illegal conduct and immoral activities, in a manner which is directly violative
of Rule 14a-9. In this connection, the Commission has recognized that material
which directly or indirectly impugns character, integrity or personal
reputation, or directly or indirectly makes charges concerning improper, illegal
or immoral conduct or associations without factual foundation, may be omitted
under Rule 14a-9. See Note (b) to Rule 14a-9. Inasmuch as we understand the
Proposal and accompanying correspondence to suggest that the Company, its
officers and directors have been engaged in improper, immoral and/or illegal
conduct, the "WHEREAS" paragraph, the RESOLVED paragraph, and each of the
remaining paragraphs in the document should be stricken in their entirety under
Rule 14a-9. Given all of its multiple infirmities, the Company submits, after having studied
the instant Proposal and each of its component pieces, that it is defective,
being both vague and indefinite as well as materially false and misleading.
Neither the IBM stockholders nor the Company should have to consider this
Proposal in any format. The Company therefore submits that the entire submission
should be omitted under Rules 14a-8(i)(3) and 14a-9, and respectfully requests
that no enforcement action be recommended to the Commission if the Company
excludes both the Proposal and the supporting statement on the basis of Rules
14a-8(i)(3) and 14a-9. .................
In summary, for the reasons and on the basis of the authorities cited above, IBM
respectfully requests your advice that the Division will not recommend any
enforcement action to the Commission if the Proposal is omitted from IBM's proxy
materials for the 2004 Annual Meeting. We are sending the Proponent a copy of
this letter, thus advising him of our intent to exclude the Proposal from the
proxy materials for the 2004 Annual Meeting. If the staff disagrees with the
Company's conclusion that the Proposal may be omitted from its 2004 proxy
materials, I request the opportunity to confer with the staff prior to the
issuance of your position. If you wish any further information, please call me
at 914-499-6148. If the Proponent elects to file a response to this letter, or
initiates any other correspondence on this matter, the Proponent is hereby
respectfully requested to provide a copy of any such correspondence to the
undersigned. Thank you for your attention and consideration in this matter.
Very truly yours, /s/
Stuart S. Moskowitz
Senior Counsel Enclosures cc: Mr. Patrick F. Napolitano
622 S.E. Degan Drive
Port St Lucie, FL 34983 -----FOOTNOTES-----
1 Cabot Corporation (November 4, 1994). IBM was first afforded the ability to
receive Cabot treatment for future proposals from this Proponent in the staff's
letter to the Company in connection with the 1995 proxy statement. See IBM
(December 29, 1994). Further, utilizing the 1994 letter, the staff later
provided Cabot relief in connection with the Proponent's 1997, 2000, 2001 and
2002 submissions to IBM. See IBM (January 6, 1998); IBM (January 10, 2001); IBM
(December 20, 2001) and IBM (January 15, 2003; reconsideration denied, April 8,
2003). The Company again requests Cabot relief under the terms of the December
29, 1994 letter to the Company, a copy of which is attached hereto as Exhibit B.
2 The Staff's no-action letter files for this Proponent should include the
following letters to the Company. Numerous other letters were submitted by Mr.
Napolitano both to the staff as well as the Company related to his personal
issues with the Company. International Business Machines Corporation (January
12, 1979); International Business Machines Corporation (February 5, 1980);
International Business Machines Corporation (February 26, 1987); International
Business Machines Corporation (November 30, 1987); International Business
Machines Corporation (January 25, 1988); International Business Machines
Corporation (February 12, 1990); International Business Machines Corporation
(January 14, 1991); International Business Machines Corporation (February 13,
1992); International Business Machines Corporation (December 15, 1992);
International Business Machines Corporation (December 14, 1993); International
Business Machines Corporation (December 29, 1994); International Business
Machines Corporation (January 6, 1998); International Business Machines
Corporation (January 10, 2001); International Business Machines Corporation
(December 20, 2001) and International Business Machines Corporation (January 15,
2003). 3 The Company's 1997 and 2000 submissions, to which the Staff applied the
forward-looking relief under Cabot, describes the similarities between the 1997
and 1994 submissions by the instant Proponent. The Company's 2000 submission
showed similar comparisons between the 2000 submission, the 1997 submission and
the 1994 submission, and the Company's 2001 submission showed similarities to
prior submissions. (See IBM's request for no-action relief dated November 19,
2001, at pp. 1-6). Reference is also hereby made to pages 2-8 of the Company's
November 30, 1997 letter and pages 4-8 of the Company's December 6, 2000 letter
to the Staff on the details relating to this matter. The Proponent's 1997 nine
page submission to the Company is attached as Exhibit G to IBM's no-action
request letter dated November 19, 2001. 4 Similar language can be found in the cover letter to the Proponent's 1998
Proposal: "IBM BARRATROUS BLOODY BUGGERS CRIMINALLY BURNED MY BRAIN, MISCREANTLY
BUSTED OUR BUTT, HARASSED, THREATENED, "FIRED," ROB US OF OUR RIGHTS, RESOURCE,
RECOURSE, PERSECUTE US IN EXTREMIS BECAUSE WE PERSIST IN ADHERENCE TO
PRINCIPLES, ETHICS, CONTRACTS/ "BELIEFS", PRO PATRIA AMERICA! (See Exhibit G to
IBM's no-action request letter dated November 19, 2001, page 2 of 9). [APPENDIX 1]
Exhibit A International Business Machines Corporation ("IBM")
IBM's request to exclude stockholder proposal from 2004 Proxy Statement pursuant
to Rule 14a-8 [APPENDIX 2]
DANIEL E. O'DONNELL
OFFICE OF THE SECRETARY
INTERNATIONAL BUSINESS INRICHINES CORP.
NEW ORCHARD ROAD
ARWONK, N.Y. 10504 VIACERTIFIED MAIL-R3
7001 1940 0001 5404 4794 622 S.E. DEGAN DRIVE
PORT ST. LOCIE, FL. 34983 OCT. 26, 2003
SUBJECT. PRO PATRIA AMERICA PETITION FOR INDEPENDENT CHAIRMAN, EFFECTIVE
CORPORATE GOVERNANCE REF: PRO PATRIA AMERICA PETITIONS, CONTINUVM, eg "OCT 11, 1994, NOV 6, 1997,
SEPARATION OF CEO FROM CHAI MR O'DONNELL,
AYIOM, 1A PETITIONS FOR REDRESS OF GRIEVANCES ARE PERSON ALIMPERATIVE INTRINSICT
THE FOUNDING CHARTERS SACRED HONOR COVENANT, THERE FORE, PLEASE FIND SUBJECT 1A
PROPATRIA AMERICA! PEREMPTORY PETITION/PROPOSAL ENCLOSED FOR INCLUSION IN THE
PROXY MATERIALS FOR THE 2004 ISM STOCKHOLDERS MEETING N.B. IBM HAS REND. ERED
ALL 1A PETITIONS INTEGRAL TO ENABLE ISM'S DESTRUCTION OF 1A PETITIONS &
PROPONENT. IRREFUTABIE, THE DIRE NEED-REQUIREWENT INOOR NATIONS VITAL INTERESTS - FOR THE
SEPARATION OF THE CEO POSITION FROM THAT OF THE CHAIRMANS POSITION - TO ENSURE
AN INDEPENDENT, FULLY COMMITTED TO - AND ACCESSIBLE
BY-THE-SHARE-HOLDERS-EFFECTIVE BOARD CHAIRMAN AND DIRECTORS, WAS CLEARLY
EVIDENT, ABINITIO, AND RECOMMENDE IN PROPONERT, RELATORS 1A PRO PATRIA PETITIONS
TO IBM, ETAL AS EXEMPLIFIED IN THE REF ERENCED 1994 AND 1997 1A PETITIONS FOR
THE DERACINATION OF THE ENTRENCHED IBM EMPOIS ONED, DOUBLE-CROSS, "BACKSTABBING
COEREIVE TO GETALONG,-QUID PRO QUD DEMANDING GOING ALONG VENAL GREED
CREED-STANDARDS OF ISM'S CORPORATE CULTURAL CRIMINAL FRAUD, INEXPIABLE CRIMES
AGAINST GOD AND COUNTRY, COMP, LING MISCREANT IBM'S AIDED AND ABETTED PERFIDIOUS
PRACTICES OF PERSECUTION IN EXT[text illegible] AGAINST PROPONENT-RELATOR,
AISINITIO, THERE BY ENABLING IBM'S BARRATROUS EVASION OF JUSTICE AND DUE
RETRIBUTION, TO VIRULENTHY EXCORIATE, CROCIFY, SUPPRESS (TORTUROUS MISARISION)
AND DIABOLICALLY DEPREDATE THE SACRED HONOR COVENANT 1A PRO PATRIA-IN DEFENSE
OF-AMERICA! PROPONENT RETATOR CRUSADE, LAWFUL, REQUIRED PETITIONS VS. VENAL
IBM'S UNAVERGED INEXPIABLE ATROCITIES AGAINST HUMANITY, AMERICAL eg. THE LENST,
BILLION # FOR BARRATROUS CORPORATED WELFARE-ANNUALLY, ie IBM-FED'S
WEETHEART-QUID PRO QUO-NOBID, NOLID, BARRATRY-DEALS': ALAS, WOEIS V, N.B. IT
NECESS ARILY FOLLOWS-SEPARRTON CEO FROM CHAIR, THAT THE OFFICE OF THE SECRETARY"
-AMANAGEMENT COHORT, MASORIM PEDMENT TO HONEST CORPORATE GOVERNANCE, MUST BE
REESTABLISHED AS FULL TIME" SECRETARY TO THE BOARD OF DIRECTORS." THAT WOULD
SERVE AS AMERANS OF-TRANS PARENCY-PRESENCE, CONTINUITY BETWEEN THE
BOARD-COMMITTEE MEETINGS. BY COPY OF THIS IA PETITION, THE PROPONENT-RELATOR HERE BY REQUEST THE S.E.C.
CHAIRMAN REQUIRE THE S.E.C. STAFF TO OBJECTIVELY, RIGOROUSLY REUIEW All OUR 1A
PETITIONS SUBMITTED OVER MARY EARS TO IBM-SEC. FOR EFFICACY, VRGENCY, AND TO
COORDINATE, AS NECESSARY, WITH "OVER, BOARD," THE STAFFS OBJECTIVE FINDINGS
ALONG WITH THE ENCLOSED IN STANT 1A PETITION, SIGHT FOR DUE PROCESS REDRESS OF
HUMANITY - AMERICA'S GRIEVANCES, MRESTITUTION FOR IBM'S PERPETRATED, PERPETUATED
ATROCITIES. IBM CORPORATE WRONG DOINGS-DETRIMENTAL TO THE GENERAL WELEARE OF THE NATION-HAVE
IN FRINGED ON, JEOPARDIZED THE PRESIOENTS AUTHORITY TO ADMINISTER FOREIGN
POLICY, eg IBM'S DEALINGS WITH FOREIGH GOVERNMENTS; OFFSHORING AMERICAN JOBS,
DOLLARS; IMPORTING LOW WAGE WORKERS TO DISPIACE AMERICAN WORKERS CORPORATE
SEABBING, ETC. SUCH ACTIONS DEMANDING A DETAILED ECONOMIC IMPACT STATEMENT FOR
APPROVAL. PREMISED IN PETITIONS. SINCERELY Pateicte F Kagsolitond
COPIES TO: WITH ENCLOSURE PRESIDENT GEORGE W. BUSH WHITE HOUSE
WILLIAM DONALOSON, CHAIRMAN, S.E.C. [APPENDIX 3]
STOCKHOLDER PRO PATRIA ANIERICA PETITIONS FOR CORPORATE-FIDUCIARY
DUTY-GOVERNANCE REF: 1A PRO PATRIA AMERICA PETITIONS TO IBM, et al. eg. DTD OCT 11, 1994, NOV.
6, 1997 "INDEPENDENT GOVERN. WHERE AS: THE AUTOCRATIL CED-CHAIRMAN POSITION IN PRINCIPLE AND PRACTICE AGRAVE
CONFL, OF INTERESTS, ABINITIO, DOMINATES, DEFORCES BOARD OF DIRECTORS OF LAW
FULLY REQUIR DVE INDEPENDENT DILIGENCE, THERE BY NATURING AND NURTURING-CULTURAL
IMPERATIVE; IBM ENVIRONNIENT OF MALIGNANT DERELICTION OF DIRECTORS FIDUCIARY
DUTIES eg. CONS 911 FAILURE-REFUSAL TO EXCERCISE DVE DILIGENCE, REDUCES
DIRECTORS TO PUPPETS PRO FESSI AND PRACTICING A POLICY OF SUBSERVIENCY-ABSOLUTE
DEFERENCE-CRONYISM SHIELD-WIDELY EVIDENCED, ADMITTED CULPABLE CEO-CHAIRMEN
MISMANAGEMENT, DISHONO, ABLE MALGOUERNANCE DEBACLE AT DEVASTATING." SPECTRUM OF
SACRIFIGE-EXPENS TO AMERICA, JUSTILE, RULE OF LAW, TRUST, SHAREHOLDER,
STAKEHOLDERS, et al. INTERESTS, ERG RESOLVED: THAT THE STOCKHOLDERS OF IBM IN PERSON AND PROXY, HERE BY-IN THE VERY
INTERE: OF CORPORATE, HIGH PRINCIPLED, DEDICATED, LAW FUL FINDUCIARY DUTIES OF
QUALIFIED INDE PENDENT DIRECTORS-GOVERNANCE,-URGE THE BOARD OF DIRECTORS, TO
EXCERCISE THE IMPERATIVE FIDUCIARY DUTIES BY DECLARING THE BOARD'S DIRECTORS'
INDEPENDENCE FROM THE CEO, BY PLEDGING THEIR FIDELITY TO THE COMPANY
SHAREHOLDERS, STAKEHOLDER BY IMMEDIATELY EFFECTIVATING THE
SEPARATION-INDIVIDUALIZATION-OF THE CHIEF EXEUTIVE OFFICERS POSITION FROM THAT
OF THE CHAIRMEN OF THE BOARD, ie CEO POSITION SPLIT FROM CHAIRMAN POSITION TO
ENSURE ANINDEPENDENT, QUALIFIED BOARD CHAIR MAN AND DIRECTORS (N.D.
INDEPENDENT=OUTSIDE; CHAIR-CEO, STATUSQUO, "LEAD DIRECTOR" NO GO, CAN'T SERVE
TWO MASTERS). ON ENCUMBERED BY-FREE FROM-THE CEO'S GRAVE COERCIONS THAT EMPOISON
CORPORATE GOUERNANCE. THE REFERENCED, CONSTITUTION ALLY MANDATED 1A PRO PATRIA AMERICA PETITIONS
CONTINUIRI LIF TIME, INCLUDED HEREIN-AS SUBMITTED, ARBITRARILY PERSECUTED AND
RESECTED BY IBM-SEC-BY BY REFERENCE, AS EPITOMIZED IN THE INSTANT PETITION, ARE
PREMISED ON, INTER ALIA PER EMPTORY PRINCIPLES, CORRECTINE ACTIONS, REWRRENCE
CONTROL, ABOLITION OF "CORPORATE AMENICA CRIMINAL FRAND," ETE, VIR PRACTICED
PRESCRIPTIVE, CODIFIED STANDARDS OF EXCETTENC BY IN DE DENDENT CHAIR, BOARD OF
DIRECTONS, eg., (REF)"... INDIVIDUALIZE CED-CHAIRMA POSITIONS ...", "...
INDEPENDENCE REQUIRES SEPARATE CEO-CHAIR, OBJECTIVE PERFORMITNCE APPRAISALS,
DETAILED REPORTING, N.B." 1997, PRO PONENT CONTINUES TO DEMAND MEETING WITH
BOARD EXTREMELY ARBITRARY (TYRANNICAL) CULPABLE IBM-FED AIDED & ABETTED, RELENTLESSLY,
WRONG FULLY, EXCORIATES-CRCEIFIES-SUPPRESSES (CONSPIRED MISPRISION, DELIBERATE
DERETICTION OF DUTY, DESTRUCTION OF JUSTICE AND THE BILLO FRIGHTS, etc), PRO
PATRIA AMERICAIS PROPONENT, REIATOR'S 1A PETITIONS FOR BEING THE PROPONENTS
PERSONAL GRIEVANCES "CRUSADE FOR AMERICACAINST ARBITRARY IBM'S HISTORIC,
CULTURACIM PERATIVE CRIMINAL FRAND, INEXPIABLE IBM CRIMES PERPETRATED,
PERPETUISTED UNAVENGED AGAINST HUMANITY AND AMERICA! N.B. LAW FUL CORPORATE
GOVERNANCE VIGOROUSLY ENCOURDGES (NOT PERSECUTE AS DOES IBM) REIATOR'S,
MPERATIVE GOOD FAITH DUTY, AFFORDING TRANS PARENCY TO, ENHANCES GOVERNANCE.
NOTE WELL: THE (SEC) "HIGH POWERED, BLUE RIBBON OUERSIGHT COMMISSION ON PUBLIC
TRUST EMPANELED AS AIRESULT OF THE WIDES PREAD MALIGNANT "CORPORATE AMERICA
CRIMINOL FRAUD SC AND ALS (WHERE FORE S.E.C.) RECOMMENDED (11-2002)" SPLITTING
THE CHAIRMAN AND CEO POST AS THE REQUIRED CORRECTIVE ACTION-RECURRENCE CONTROL
NECESSARY FOR THE ASOLITION OF CORPORATE AMERICA, ENDURING CRIMINAL FRAUD.
THE BLUE RIBBON BOARD VALIDATED PRECISELY PROPATRLA AMERICA FOR THE SEPARATION
OF CEO-CHAIR, POSITIONS, QUER EIGHT YEARS AND MANY GIGABUCKS LOST.
NOTEWELL: "... WE (IBM) MIGHT HAVE INADVERTENTLY CONTRIBUTED TO THE SPECTACUIAR
RISE AND FALL OF THE DOTCOMS", "WAVE OF DOT COM HYSTERIA CREST THEN ULTIMATE
COLLONPSE DURING 2002 (ECO-CHAIR)". ALAS, IN ADVERTENCY, IS TANTRMOUNT TO MISMAN
AGEMENT-MALGOVERNANCE CULPUBILITY AUTOCRATIC CEO-CHAIR, CRONY DIRECTORS.
JUST THINK, WHAT MIGHT HAVE BEEN HAD THE S.E.C. APPROVED THE 1994 OR 1997 1A PRO
PATRIA AMERICA PETITIONS FOR THE SEPARATION OF CEO ANDCHAIR POSITIONS, PERHAPS
NO BUBBLE, REDUCED CRIMINAL FRAUD
[STAFF REPLY LETTER]
January 7, 2004 Stuart S. Moskowitz
Senior Counsel
Office of the Vice President
Assistant General Counsel
International Business Machines Corporation
New Orchard Road
Armonk, NY 10504 Re: International Business Machines Corporation
Incoming letter dated December 1, 2003 Dear Mr. Moskowitz:
This is in your response to your letter of December 1, 2003 concerning a
shareholder proposal submitted to IBM by Patrick F. Napolitano. Noting that the
proposal appears to be similar to the same proponent's proposal in International
Business Machines Corporation, December 29, 1994, we believe that the
forward-looking relief that we provided in that earlier response is sufficient
to address his recent proposal. Accordingly, we believe that a specific
no-action response is unnecessary. In connection with this matter, your attention is directed to the enclosure,
which sets forth a brief discussion of the Division's informal procedures
regarding shareholder proposals. Sincerely,
/s/ Martin P. Dunn
Deputy Director cc: Mr. Patrick F. Napolitano
622 S.E. Degan Drive
Port St. Lucie, FL 34983
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