KYNDRYL HOLDINGS, INC. Item 1.01. Entry into a Material Definitive Agreement.
On
On
· a Separation and Distribution Agreement;
· a Transition Services Agreement;
· a Tax Matters Agreement;
· an Employee Matters Agreement;
· an Intellectual Property Agreement;
· a Real Estate Matters Agreement;
· an IBM International Client Relationship Agreement;
· a Master Subcontracting Framework Agreement; and
· a Stockholder and Registration Rights Agreement.
The descriptions included below of the Separation and Distribution Agreement, Tax Matters Agreement, Transition Services Agreement, Employee Matters Agreement, Intellectual Property Agreement, Real Estate Matters Agreement, IBM International Client Relationship Agreement, Master Subcontracting Framework Agreement and Stockholder and Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements, which are filed as Exhibits 2.1, 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 10.7 and 10.8, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
Separation and Distribution Agreement
We entered into a Separation and Distribution Agreement with IBM in advance of the Distribution. The Separation and Distribution Agreement sets forth our agreements with IBM regarding the principal actions to be taken in connection with the Spin-Off. It also sets forth other agreements that govern aspects of our relationship with IBM following the Spin-Off.
Transfer of Assets and Assumption of Liabilities
The Separation and Distribution Agreement identifies certain transfers of assets and assumptions of liabilities that were necessary in advance of our separation from IBM so that we and IBM retain the assets of, and the liabilities associated with, our respective businesses. The Separation and Distribution Agreement generally provides that the assets comprising our business consist of those exclusively related to our current business and operations (except for intellectual property assets, which are allocated as further described below under Intellectual Property Agreements or otherwise allocated to the business through a process of dividing shared assets). The liabilities assumed in connection with the Spin-Off generally consist of those related to the assets comprising our business or to the past and future operations of our business, including our locations used in our current operations. The Separation and Distribution Agreement also provides for the settlement or extinguishment of certain liabilities and other obligations between us and IBM. . . .
Item 2.03. Creation of a Direct Financial Obligation or Obligation under an Off-Balance Sheet Arrangement of a Registrant.
As previously reported, on
The description of the Term Loan Credit Agreement is set forth under Item 1.01
in the Company's Current Report on Form 8-K filed on
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth under Item 5.03 below is incorporated into this Item 3.03 by reference.
Item 5.01. Changes in Control of Registrant.
The information set forth under Item 1.01 above is incorporated into this Item 5.01 by reference.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Director and Officer Appointments
As previously reported in the Information Statement, on or prior to
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Name Age Committee Appointment Class
Dominic J. Caruso 64 Audit Committee (Chair) III
John D. Harris II 60 Nominating and Governance Committee II
Stephen A. M. Hester 60 Nominating and Governance Committee (Chair) III
Shirley Ann Jackson 75 Nominating and Governance Committee III
Janina Kugel 51 Compensation Committee I
Denis Machuel 57 Audit Committee I
Rahul N. Merchant 65 Audit Committee I
Jana Schreuder 63 Compensation Committee (Chair) II
Martin Schroeter 57 None III
Howard I. Ungerleider 53 Compensation Committee II
As previously reported in the Information Statement, effective on
Name Age Position(s)
Maryjo Charbonnier 51 Chief Human Resources Officer
Elly Keinan 57 Group President
Vineet Khurana 48 Vice President and Controller
Martin Schroeter 57 Chief Executive Officer
Edward Sebold 56 General Counsel and Secretary
David Wyshner 54 Chief Financial Officer and Treasurer
Information regarding the background of the directors and executive officers of the Company is included in the Information Statement under the caption " Management ," on pages 96 through 102, which pages are incorporated herein by reference.
2021 Long-Term Performance Plan and the Kyndryl Excess Plan
The Company has adopted the 2021 Long-Term Performance Plan (the "LTPP"), which
became effective as of immediately prior to the Distribution, and the Kyndryl
Excess Plan (the "Excess Plan"), which will be effective as of
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
In connection with the Distribution, the Company filed an Amended and Restated
Certificate of Incorporation ("Charter") with the Secretary of State of the
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A summary of the material provisions of the Charter and Bylaws can be found in the section titled "Description of Our Capital Stock" on pages 127 through 131 of the Information Statement, which pages are incorporated herein by reference. This summary does not purport to be complete and is qualified in its entirety by reference to the full text of the Charter and Bylaws, which are filed as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K, and incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1 Separation and Distribution Agreement, datedNovember 2, 2021 , between International Business Machines Corporation andKyndryl Holdings, Inc.
3.1 Amended and Restated Certificate of Incorporation
3.2 Amended and Restated Bylaws
10.1 Transition Services Agreement, dated as of
International Business Machines Corporation and Kyndryl Holdings, Inc.
*
10.2 Tax Matters Agreement, dated as of
International Business Machines Corporation and Kyndryl
Holdings, Inc. 10.3 Employee Matters Agreement, dated as of
International Business Machines Corporation and Kyndryl
Holdings, Inc. 10.4 Intellectual Property Agreement, dated as of
between International Business Machines Corporation and Kyndryl, Inc. 10.5 Real Estate Matters Agreement, dated as of
International Business Machines Corporation and Kyndryl
Holdings, Inc. 10.6 IBM International Client Relationship Agreement, dated as of
November 2, 2021 , between International Business Machines Corporation andKyndryl, Inc. *
10.7 Master Subcontracting Framework Agreement, dated as of
2021, between International Business Machines Corporation and
Kyndryl , Inc. *
10.8 Stockholder and Registration Rights Agreement, dated as of
November 2, 2021 , between International Business Machines Corporation andKyndryl Holdings, Inc.
10.9
10.10 Forms of LTPP equity award agreements for (i) stock options,
restricted stock, restricted stock units, cash-settled restricted stock
units and (ii) retention restricted stock unit awards
10.11 Form of LTPP equity award agreement for performance share units
10.12 Form of Terms and Conditions of LTPP equity award agreements
10.13 Kyndryl Excess Plan
99.1 Press Release, dated November 4, 2021 , issued by the Company
* Certain portions of this exhibit have been redacted pursuant to Item
601(b)(10)(iv) of Regulation S-K.
an unredacted copy of the exhibit to the Commission upon its request.
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