Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by International Business Machines Corporation that it is the beneficial owner of any of the common stock of Unica Corporation referred to herein for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or for any other purpose, and such beneficial ownership is expressly disclaimed.
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ITEM 1.
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SECURITY AND ISSUER
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This statement on Schedule 13D relates to the common stock, par value $.01 per share (the “Issuer Common Stock”), of Unica Corporation, a Delaware corporation (the “Issuer”). The principal executive offices of the Issuer are located at 170 Tracer Lane, Waltham, Massachusetts 02451.
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ITEM 2.
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IDENTITY AND BACKGROUND
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(a) The name of the person filing this statement is International Business Machines Corporation, a New York corporation (“IBM”).
(b) The address of the principal office and principal business of IBM is New Orchard Road, Armonk, New York 10504.
(c) IBM creates business value for clients and solves business problems through integrated solutions that leverage information technology and deep knowledge of business processes. IBM solutions typically create value by reducing a client's operational costs or by enabling new capabilities that generate revenue. These solutions draw from an industry leading portfolio of consulting, delivery and implementation services, enterprise software, systems and financing. Set forth in Schedule A hereto, which is incorporated herein by reference, is the name, business address, present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted and citizenship of each of IBM’s directors and executive officers, as of the date hereof. Other than such directors and executive officers, there are no persons controlling IBM.
(d) During the last five years, neither IBM nor, to the knowledge of IBM, any person named in Schedule A hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, neither IBM nor, to the knowledge of IBM, any person named in Schedule A hereto, was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Not applicable.
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ITEM 3.
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SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
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Pursuant to the Stockholders Agreement, dated as of August 12, 2010 (the “Stockholders Agreement”), among IBM and those stockholders of the Issuer set forth on Schedule A to the Stockholders Agreement (the “Stockholders”), IBM may be deemed to be the beneficial owner of, in the aggregate, 4,379,529 shares of Issuer Common Stock (the “Subject Shares”). IBM and the Stockholders entered into the Stockholders Agreement to induce IBM to enter into the Agreement and Plan of Merger, dated as of August 12, 2010 (the “Merger Agreement”), among IBM, Amaroo Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of IBM (“Sub”), and the Issuer. Pursuant to the Merger Agreement, Sub will merge with and into the Issuer (the “Merger”), with the Issuer continuing as the surviving corporation in the Merger and as a wholly owned subsidiary of IBM (the “Surviving Corporation”). In the Merger, each share of Issuer Common Stock will be converted into the right to receive $21.00 in cash, without interest. Consummation of the Merger is subject to certain conditions. The descriptions of the Merger Agreement and the Stockholders Agreement contained herein are qualified in their entirety by reference to such agreements, which are attached hereto as Exhibits 1 and 2 and are incorporated herein by reference.
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ITEM 4.
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PURPOSE OF TRANSACTION
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(a)–(b) The Stockholders Agreement was entered into as a condition to the willingness of IBM to enter into the Merger Agreement and to increase the likelihood that the approval of the Issuer’s stockholders required in connection with the Merger would be obtained. The terms of the Stockholders Agreement apply to the Subject Shares (as defined below) of the Stockholders, as described in Item 5. See the response to Item 3 for a more complete description of the Merger. The description of the Stockholders Agreement contained herein is qualified in its entirety by reference to such agreement, which is attached hereto as Exhibit 2 and is incorporated herein by reference.
(c) Not applicable.
(d) Upon consummation of the Merger, the directors of the Surviving Corporation shall be the existing directors of Sub, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified. The existing directors of Sub are Marian Dillon, Jeff Doyle and Mark Stern. The officers of the Surviving Corporation shall be the existing officers of Sub, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified. The existing officers of Sub are Jeff Doyle (President), William Behan (Secretary and Treasurer) and Marian Dillon (Assistant Secretary).
(e) Other than as a result of the Merger described in Item 3, not applicable.
(f) Other than as a result of the Merger described in Item 3, not applicable.
(g) Upon consummation of the Merger, the certificate of incorporation of the Issuer, as in effect immediately prior to the Merger, shall be amended to read in the form set forth on Exhibit A to the Merger Agreement and, as so amended, will be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended. Upon consummation of the Merger, the by-laws of Sub, as in effect immediately prior to the Merger, shall be the by-laws of the Surviving Corporation until thereafter changed or amended.
(h)–(i) Upon consummation of the Merger, the Issuer Common Stock will be delisted from the Nasdaq Global Market Inc. and will become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act.
(j) Other than as described above, IBM currently has no plans or proposals which relate to, or may result in, any of the matters listed in Items 4(a)–(i) of Schedule 13D (although IBM reserves the right to develop such plans or proposals).
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ITEM 5.
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INTEREST IN SECURITIES OF THE ISSUER
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(a)–(b) As a result of the Stockholders Agreement, IBM may be deemed to be the beneficial owner of the Subject Shares. The Subject Shares constitute approximately 20.4% of the issued and outstanding shares of Issuer Common Stock, based on the Issuer’s representation in the Merger Agreement that there were 21,513,708 shares of Issuer Common Stock issued and outstanding as of the close of business on August 9, 2010. Any shares of Issuer Common Stock acquired or received (including as a result of any stock or extraordinary dividend or other distribution, stock split, reverse stock split, recapitalization, reclassification, reorganization, combination or other like change) by any Stockholder after the date of the Stockholders Agreement will also be subject to the terms of the Stockholders Agreement. Accordingly, any such acquisition or receipt of shares of capital stock of the Issuer by any Stockholder may result in IBM being deemed to be the beneficial owner of such additional shares.
Pursuant to the Stockholders Agreement, each of the Stockholders has agreed, among other things, (i) to (a) appear at any meeting of the stockholders of the Issuer called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or otherwise cause such Stockholder’s Subject Shares to be counted as present thereat for purposes of calculating a quorum and (b) vote all of such Stockholder’s Subject Shares in favor of the adoption of the Merger Agreement and the approval of the Merger and any other transaction contemplated by the Merger Agreement, (ii) prior to the date that is the later of (x) the date of the meeting of the stockholders of the Issuer called to vote upon the Merger Agreement and (y) six months from the date of the Stockholders Agreement, to vote all of such Stockholder’s Subject Shares against the following: (a) any Takeover Proposal or Acquisition Agreement relating thereto (as such terms are defined in the Merger Agreement) and (b) any amendment to the Issuer’s governance documents (other than pursuant to the Merger Agreement) or any other proposal, action, agreement or transaction that could reasonably be expected to (A) result in a breach of any covenant, agreement, obligation, representation or warranty of the Issuer contained in the Merger Agreement or of the Stockholders contained in the Stockholders Agreement, (B) prevent, impede, interfere or be inconsistent with, delay, discourage or adversely affect the timely consummation of the Merger or the other transactions contemplated by the Merger Agreement or by the Stockholders Agreement, (C) dilute in any material respect the benefits to IBM or Sub of the Merger and the other transactions contemplated by the Merger Agreement or by the Stockholders Agreement or (D) change in any manner the voting rights of the Issuer Common Stock, (iii) to not sell, transfer, pledge, exchange, assign, tender or otherwise dispose of (including by gift, merger or otherwise by operation of law) any Subject Shares (or any interest therein) or any rights to acquire any securities or equity interests of the Issuer, subject to certain exceptions, and to not enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or rights to acquire any securities or equity interests of the Issuer, other than the Stockholders Agreement and (iv) to not commit or agree to take any action inconsistent with or challenging the transactions contemplated by, or the terms of, the Stockholders Agreement or the Merger Agreement. Each Stockholder has irrevocably appointed IBM and any other individual designated in writing by IBM, and each of them individually, such Stockholder’s proxy and attorney-in-fact (with full power of substitution and re-substitution), for and in the name, place and stead of such Stockholder, to vote all of such Stockholder’s Subject Shares in accordance with clauses (i) and (ii) of this paragraph.
The Stockholders Agreement will terminate upon the earlier of (1) the effective time of the Merger and (2) the termination of the Merger Agreement in accordance with its terms, except for certain sections of the Stockholders Agreement, including those relating to the Stockholders’ covenant to vote against certain proposals, actions, agreements and transactions, and those relating to the granting of an irrevocable proxy, which, in each case, will survive and instead will expire upon the expiration of all rights of IBM and Sub thereunder.
The descriptions of the Merger Agreement and the Stockholders Agreement contained herein are qualified in their entirety by reference to such agreements, which are attached hereto as Exhibits 1 and 2 and are incorporated herein by reference.
(c) Neither IBM nor, to the knowledge of IBM, any person named in Schedule A hereto, has effected any transaction in the Issuer Common Stock during the past 60 days.
(d) Not applicable.
(e) Not applicable.
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ITEM 6.
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CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
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Other than as described in Items 3, 4 and 5 and the agreements incorporated herein by reference and set forth as exhibits hereto, to the knowledge of IBM, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.
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ITEM 7.
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MATERIALS TO BE FILED AS EXHIBITS
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The following documents are filed as exhibits:
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Exhibit
Number
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Exhibit Name
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1
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Agreement and Plan of Merger dated as of August 12, 2010, by and among International Business Machines Corporation, a New York corporation, Amaroo Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of International Business Machines Corporation, and Unica Corporation, a Delaware corporation.
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2
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Stockholders Agreement dated as of August 12, 2010, by and among International Business Machines Corporation, a New York corporation, Yuchun Lee, Agustina Sumito Lee, Agustina Sumito Living Trust, Yuchun Lee 2010 GRAT, Lee Sumito Irrevocable Trust, Yuhun Lee Living Trust and 2001 Lee Charitable Trust.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
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INTERNATIONAL BUSINESS MACHINES CORPORATION, |
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by
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/s/ Elias Mendoza |
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Name: Elias Mendoza |
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Title: Vice President, Corporate Development |
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| Date: August 20, 2010 |
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EXHIBIT INDEX
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Exhibit
Number
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Exhibit Name
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1
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Agreement and Plan of Merger dated as of August 12, 2010, by and among International Business Machines Corporation, a New York corporation, Amaroo Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of International Business Machines Corporation, and Unica Corporation, a Delaware corporation.
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2
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Stockholders Agreement dated as of August 12, 2010, by and among International Business Machines Corporation, a New York corporation, Yuchun Lee, Agustina Sumito Lee, Agustina Sumito Living Trust, Yuchun Lee 2010 GRAT, Lee Sumito Irrevocable Trust, Yuhun Lee Living Trust and 2001 Lee Charitable Trust.
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SCHEDULE A
The following is a list of the directors and executive officers of IBM, setting forth the present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted for each such person. Except as indicated below, all directors and officers listed below are citizens of the United States.
Board of Directors of IBM
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Name
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Position
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Present Principal Occupation
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Business Address
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Samuel J. Palmisano
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Chairman of the Board
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President and Chief Executive Officer
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International Business Machines Corporation
New Orchard Road - MD 321
Armonk, NY 10504
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Alain J. P. Belda
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Director
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Managing Director, Warburg Pincus
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Warburg Pincus
450 Lexington Avenue
New York, NY 10022
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Cathleen Black
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Director
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Chairman, Hearst Magazines
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The Hearst Corporation
300 West 57th Street (43rd Floor)
New York, New York 10019
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William R. Brody
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Director
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President, Salk Institute for Biological Studies
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Office of the President
The Salk Institute for Biological Studies
10010 North Torrey Pines Road
La Jolla, CA 92037
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Kenneth I. Chenault
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Director
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Chairman and Chief Executive Officer, American Express Company
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American Express Company
World Financial Center - 5104
200 Vesey Street
New York, NY 10285
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Michael L. Eskew
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Director
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Retired Chairman and Chief Executive Officer,
United Parcel Service, Inc.
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United Parcel Service, Inc.
55 Glenlake Parkway N.E.
Atlanta, GA 30328
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Shirley Ann Jackson
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Director
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President, Renssalaer Polytechnic Institute
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Rensselaer Polytechnic Institute
Troy Building, 3rd Floor
110 8th Street
Troy, NY 12180
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Andrew N. Liveris
(citizen of Australia)
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Director
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Chairman, President and Chief Executive Officer,
The Dow Chemical Company
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The Dow Chemical Company
2030 Dow Center
Midland, MI 48674
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W. James McNerney, Jr.
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Director
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Chairman, President and Chief Executive Officer,
The Boeing Company
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The Boeing Company
100 North Riverside, M/C 5003-6010
Chicago, IL 60606-1596
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James W. Owens
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Director
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Chairman, Caterpillar Inc.
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Caterpillar Inc.
300 Hamilton Blvd.
Suite 202 / Mail Drop LQ2850
Peoria, IL 61629-2850
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Name
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Position |
Present Principal Occupation
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Business Address |
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Joan E. Spero
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Director
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Former Visiting Fellow, Foundation Center
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International Business Machines Corporation
One New Orchard Road
Armonk, NY 10504
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Sidney Taurel
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Director
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Chairman Emeritus, Eli Lilly and Company
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Eli Lilly and Company
Lilly Corporate Center
Indianapolis, IN 46285
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Lorenzo H. Zambrano
(citizen of Mexico)
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Director
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Chairman and Chief Executive Officer, CEMEX, S.A.B. de C.V.
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CEMEX, S.A.B. de C.V.
Corporate Headquarters
Ave. Ricardo Margain Zozaya #325
Col. Valle del Campestre
San Pedro Garza Garcia, N.L. 66265
Mexico
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Executive Officers of IBM
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Name
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Position
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Samuel J. Palmisano
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Chairman of the Board of Directors, President and Chief Executive Officer
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Rodney C. Adkins
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Senior Vice President, Systems and Technology
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Colleen Arnold
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Senior Vice President, Application Management Services, IBM Global Business Services
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Michael E. Daniels
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Senior Vice President, Global Technology Services, IBM Global Services
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Jon C. Iwata
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Senior Vice President, Marketing and Communications
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James J. Kavanaugh
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Vice President and Controller
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Dr. John E. Kelly, III
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Senior Vice President and Director of IBM Research
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R. Frankin Kern
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Senior Vice President, IBM Global Business Services
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Robert LeBlanc
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Senior Vice President, Software Middleware Group
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Mark Loughridge
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Senior Vice President and Chief Financial Officer
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J. Randall MacDonald
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Senior Vice President, Human Resources
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Steven A. Mills
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Senior Vice President and Group Executive, IBM Software Group
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Michael D. Rhodin
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Senior Vice President, IBM Software Solutions Group
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Virginia M. Rometty
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Senior Vice President, IBM Global Sales and Distribution
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Linda S. Sanford
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Senior Vice President, Enterprise On Demand Transformation & Information Technology
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Timothy S. Shaughnessy
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Senior Vice President, Services Delivery
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Robert C. Weber
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Senior Vice President, Legal and Regulatory Affairs, and General Counsel
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