Company Name: IBM
Public Availability Date: November 30, 2004
Office of the Vice President
New Orchard Road
Assistant General Counsel
Armonk, NY 10504
November 17, 2004
Securities and Exchange Commission
Office of Chief Counsel
Department of Corporation Finance
450 Fifth Street, N.W., Judiciary Plaza
Washington, D.C. 20549
Subject: IBM Proxy Statement - James J. Mangi - Untimely Filing
Ladies and Gentlemen:
Pursuant to Rule 14a-8(j) under the Securities Exchange Act of 1934, I am
enclosing six copies of this letter together with an e-mail letter from Mr. James
Mangi (the "Proponent") dated November 9, 2004 (at 3:18 p.m.) attaching a
stockholder proposal relating to IBM's executive compensation policies (the
"Proposal"). The 3 page e-mail submission is attached hereto as Exhibit A.
IBM believes the Proposal may properly be omitted from the proxy materials for
IBM's annual meeting of stockholders scheduled to be held on April 26, 2005 (the
"2005 Annual Meeting") because it is untimely. 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.
THE PROPOSAL MAYBE OMITTED UNDER RULE 14a-8(e) BECAUSE OF
ITS UNTIMELY SUBMISSION BY THE PROPONENT
With respect to a proposal submitted for a regularly scheduled annual meeting,
Rule 14a-8(e)(2) provides that the proposal must be received at the company's
principal executive offices not less than 120 calendar days before the date of the
company's proxy statement released to shareholders in connection with the
previous year's annual meeting. The Company's proxy statement for its 2004
annual meeting was dated and released on March 8, 2004. Pursuant to Rule
14a-8(e)(1), the Company's proxy statement for its 2004 annual meeting
informed stockholders that proposals for the 2005 annual meeting had to be
received by the Company no later than 5:00 p.m. on November 8, 2004 to be
considered for inclusion in the Company's 2005 proxy statement. (See Exhibit
B).
Under this Rule, the subject Proposal, being both sent by the Proponent after the
November 8 deadline, and received by the Company after the November 8
deadline, was untimely. The e-mail in this case was both sent and received on
November 9, 2004. The Proposal may therefore be excluded from the
Company's proxy materials for its 2005 annual meeting as untimely. See e.g.
Sarah Lee Corporation (August 9, 2004)(proposal late on its face excluded);
General Electric Company (March 16, 2004)(to same effect); IBM Corporation
(March 6, 2003)(to same effect).
In this connection, the Staff has made it very clear that it will strictly enforce the
deadline for the submission of proposals without inquiring as to reasons for
failure to meet the deadline, even if a proposal is submitted only one day late.
Thomas Industries Inc. (January 15, 2003) (1 day late); Hewlett-Packard
Company (November 27, 2000)(proposal dated September 21, 2000 excluded as
tardy when company's receipt deadline was September 20, 2000). The instant
Proposal is no different. It was tardy, having been sent by the Proponent, and
received by IBM, after our November 8 deadline.
In sum, based upon long-standing staff precedent, IBM respectfully requests your
advice that the staff will not recommend any enforcement action to the
Commission if the instant Proposal is omitted from IBM's proxy materials being
prepared for the 2005 Annual Meeting pursuant to Rule 14a-8(e), By copy of
this letter, we are so advising the Proponent. If there are any questions relating
to this submission, please contact the undersigned at 914-499-6148. Thank you
for your interest and attention in this matter.
Very truly yours,
Stuart S. Moskowitz
Senior Counsel
cc: James J. Mangi
21 Rockwell Road
Bethel, CT 06801 |
