As Filed with the Securities and Exchange Commission on January 31, 2003
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
of incorporation or organization) Identification No.)
NEW ORCHARD ROAD
ARMONK, NEW YORK 10504
(Address of Principal Executive Offices)
IBM PWCC ACQUISITION LONG-TERM PERFORMANCE PLAN
(Full Title of the Plan)
Andrew Bonzani, Esq.
Assistant Secretary and Associate General Counsel
International Business Machines Corporation
Corporate Legal Department
New Orchard Road
ARMONK, NEW YORK 10504
(Name and Address of Agent For Service)
(914) 499-1900
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
Title of
Each Class Amount Proposed Maximum Proposed Maximum
of Securities to be Offering Price Aggregate Amount of
to be Registered Registered Per Unit Offering Price Registration Fee
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IBM Common Stock
$0.20 par value 41,000,000 shares $78.56** $3,220,960,000** $296,328,32 (1)
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** Estimated solely for the purpose of determining the registration fee in
accordance with Rules 457 (c) and (h) under the Securities Act of 1933, on the
basis of the average of the highest and lowest prices of IBM Common Stock
reported on the New York Stock Exchange Composite Tape on January 27, 2003.
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.
(1) Pursuant to Rule 457(p) of the Rules and Regulations of the Securities and
Exchange Commission under the Securities Act of 1933, and Securities Act Release
No. 7943, dated January 26, 2001, International Business Machines Corporation,
as the parent and 100% owner of IBM Credit LLC, formerly IBM Credit Corporation,
CIK number 353524 ("IBMCR"), is properly sourcing the full amount of the
registration fee for the common stock we are now registering on this Form
S-8 ($302,061.76) from the registration fees previously paid and still remaining
available for use under IBMCR's Form S-3 shelf registration statement (SEC File
No. 333-86615), which Form S-3 IBMCR filed with the SEC on September 7, 1999,
and which was declared effective on October 6, 1999.
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 International Business Machines Corporation ("IBM") on
Form 10-K for the fiscal year ended December 31, 2001, 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, 2001.
(c) The description of IBM's common stock, contained in IBM's registration
statements filed pursuant to Section 12 of the Exchange Act, including 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 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 the date hereof, 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
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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 8. Exhibits.
Exhibit
Number Description
------ ------------
4 IBM PWCC Acquisition Long-Term Performance Plan
5 Opinion of Andrew Bonzani, Esq.,
Assistant Secretary and Associate General Counsel of IBM
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
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
of 1933, 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; and
(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.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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
of 1933 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 Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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, the undersigned,
thereunto duly authorized, in the town of North Castle, State of New York, on
the 31st day of January, 2003.
INTERNATIONAL BUSINESS MACHINES CORPORATION
BY: /S/ ANDREW BONZANI
-------------------------------
(ANDREW BONZANI, ESQ., 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 27th day of January, 2003.
Signature Title
--------- -----
*
---------------------- President and Chief Executive Officer
Samuel J. Palmisano (Principal Executive Officer)
*
---------------------- Senior Vice President and Chief Financial
John R. Joyce Officer (Principal Financial Officer)
*
---------------------- Vice President and Controller
Robert F. Woods (Principal Accounting Officer)
*
---------------------- Director
Cathleen Black
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*
--------------------- Director
Kenneth I. Chenault
*
-------------------- Director
Nannerl O. Keohane
*
---------------------- Director
Charles F. Knight
*
---------------------- Director
Minoru Makihara
*
---------------------- Director
Lucio A. Noto
*
---------------------- Director
John B. Slaughter
*
---------------------- 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 exhibits to this
Registration Statement.
BY: /S/ ANDREW BONZANI
---------------------------
ANDREW BONZANI, ESQ.
ATTORNEY-IN-FACT
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EXHIBIT INDEX
EXHIBIT NO.
4 IBM PWCC Acquisition Long-Term Performance Plan.
5 Opinion of Andrew Bonzani, Esq.,
Assistant Secretary and Associate General Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
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
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