As filed with the Securities and Exchange Commission on December 24, 2002
Registration No. 333-101034
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INTERNATIONAL BUSINESS MACHINES CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK
13-0871985
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
ARMONK, NEW YORK 10504
(914) 499-1900
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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ANDREW BONZANI
ASSISTANT SECRETARY AND ASSOCIATE GENERAL COUNSEL
INTERNATIONAL BUSINESS MACHINES CORPORATION
ARMONK, NEW YORK 10504
(914) 499-1900
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement. [ ]
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are being offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
-------------------------- --------------- --------------------- ---------------------- -------------------
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Amount to be Aggregate Price Aggregate Offering Amount of
Registered Registered Per Unit Price Registration Fee
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Capital Stock 25,327,676 $78.965 (a) $2,000,000,000 (a) $184,000 (a) (b)
($0.20 par value) shares
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(a) The shares of capital stock are to be offered at prices which are not
presently determinable. The offering price is estimated pursuant to Rule
457(c) solely for purposes of calculating the registration fee on the basis of
the average of the high and low prices of IBM capital stock reported on the
New York Stock Exchange Composite Tape on December 18, 2002.
(b) $138,000 of the amount of the registration fee was previously paid in
connection with the initial filing of the S-3 registration statement. The
remaining $46,000 is available in the registrant's SEC account.
Pursuant to Rule 416 under the Securities Act of 1933, to the extent
additional shares of IBM capital 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 capital stock.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
SUBJECT TO COMPLETION
DECEMBER 24, 2002
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
INTERNATIONAL BUSINESS MACHINES CORPORATION
New Orchard Road
Armonk, New York 10504
(914) 499-1900
25,327,676 Shares
CAPITAL STOCK
YOU SHOULD READ THIS PROSPECTUS CAREFULLY BEFORE YOU INVEST.
This Prospectus relates to the resale, from time to time, by the IBM
Personal Pension Plan Trust (the "Trust"), of up to 25,327,676 shares of
capital stock, $0.20 par value, of International Business Machines Corporation
proposed to be contributed from time to time by IBM to the Trust. IBM will
receive none of the proceeds from the sale of the shares by the Trust.
The shares may be sold from time to time through public or private
transactions on or off the United States exchanges on which the capital stock
is traded, and at prevailing market prices or other prices negotiated by the
managers, all as more fully described under the "Plan of Distribution".
The capital stock of IBM is listed on the New York Stock Exchange and
trades under the symbol IBM.
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These securities have not been approved by the Securities and Exchange
Commission or any state securities commission, nor have these organizations
determined that this prospectus is accurate or complete. Any representation to
the contrary is a criminal offense.
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The date of this prospectus is December __, 2002.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference room in Washington, D.C. Please call the SEC at
1-800-SEC-0330 for further information on their public reference room. Our SEC
filings are also available to the public at the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with it. This means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
later information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until our offering is
completed:
i. Annual Report on Form 10-K for the year ended December 31, 2001;
ii. Quarterly Reports on Form 10-Q for the quarters ended March 31, 2002,
June 30, 2002, and September 30, 2002; and
iii. Current Reports on Form 8-K, filed on January 17, 2002, January 29,
2002, April 8, 2002, April 17, 2002, May 9, 2002, June 4, 2002,
July 1, 2002, July 9, 2002, July 17, 2002, July 30, 2002, August 13,
2002, August 28, 2002, September 9, 2002, October 16, 2002,
October 29, 2002, November 4, 2002, November 14, 2002,
November 26, 2002, and December 4, 2002.
We encourage you to read our periodic and current reports. Not only do we
think these items are interesting reading, we think these reports provide
additional information about our company which prudent investors find
important. You may request a copy of these filings at no cost, by writing to
or telephoning our transfer agent at the following address:
Equiserve Trust Company, N.A.
P.O. Box 43072
Providence, RI 02940
(781) 575-2727
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or
any prospectus supplement is accurate as of any date other than the date on
the front of the document.
DESCRIPTION OF THE COMPANY
We were originally incorporated in the State of New York on June 16,
1911, as the Computing-Tabulating-Recording Co. (C-T-R). C-T-R was a
consolidation of the Computing Scale Co. of America, the Tabulating Machine
Co., and The International Time Recording Co. of
New York. In 1924, C-T-R adopted the name International Business Machines
Corporation, also known more simply as IBM.
We use advanced information technology to provide customer solutions. We
operate primarily in a single industry using several segments that create
value by offering a variety of solutions that include, either singularly or in
some combination, technologies, systems, products, services, software and
financing.
Organizationally, our major operations comprise a Global Services
segment; three hardware product segments--Enterprise Systems, Personal and
Printing Systems and Technology; a Software segment; a Global Financing
segment and an Enterprise Investment segment. The segments are determined
based on several factors, including customer base, homogeneity of products,
technology and delivery channels.
We offer our products through our global sales and distribution
organization. The sales and distribution organization has both a geographic
focus (in the Americas, Europe/Middle East/Africa, and Asia Pacific) and a
specialized and global industry focus. In addition, these organizations
include a global sales and distribution effort devoted exclusively to small
and medium businesses. We also offer our products through a variety of third
party distributors and resellers, as well as through our on-line channels.
USE OF PROCEEDS
The shares being offered are for the account of the Trust. IBM will not
receive any proceeds from the sale of the shares offered.
DESCRIPTION OF THE CAPITAL STOCK
As of the date of this prospectus, we are authorized to issue up to
4,687,500,000 shares of capital stock, $0.20 par value per share. As of
November 30, 2002, 1,920,365,350 shares of capital stock were issued and
1,696,342,538 were outstanding.
DIVIDENDS.
Holders of capital stock are entitled to receive dividends, in cash,
securities, or property, as may from time to time be declared by our Board of
Directors, subject to the rights of the holders of the preferred stock.
VOTING.
Each holder of capital stock is entitled to one vote per share on all
matters requiring a vote of the stockholders.
RIGHTS UPON LIQUIDATION.
In the event of our voluntary or involuntary liquidation, dissolution, or
winding up, the holders of capital stock will be entitled to share equally in
our assets available for distribution
after payment in full of all debts and after the holders of preferred stock
have received their liquidation preferences in full.
MISCELLANEOUS.
Shares of capital stock are not redeemable and have no subscription,
conversion or preemptive rights.
SELLING SHAREHOLDER
The Trust is the trust formed to hold the assets of IBM's defined benefit
pension plan known as the IBM Personal Pension Plan, covering substantially
all of IBM's U.S. employees. The Plan and the Trust are intended to be
tax-qualified within the meanings of Sections 401(a) and 501(a) of the
Internal Revenue Code. The Trust is funded by IBM contributions held for the
sole benefit of Plan participants and beneficiaries, and to pay proper
expenses of Plan administration.
As of November 30, 2002, the Trust owned 1,850,109 shares of capital
stock (representing approximately 0.42% of the total assets of the Trust and
approximately 0.11% of the outstanding shares of capital stock). Assuming all
the 25,327,676 shares in this offering were contributed to the Trust and none
of the shares now held by the Trust had been sold, the Trust would own
27,177,785 shares of capital stock (representing approximately 6.24% of the
total assets of the Trust and approximately 1.58% of the outstanding shares of
capital stock).
It is contemplated that the shares contributed to the Trust will be
managed by investment managers designated in accordance with procedures
established by the IBM Retirement Plans Committee. Each investment manager is
responsible in its sole judgment and discretion for making any decision to
sell from time to time any of or all the shares under its control, subject to
the terms of investment management arrangements with the manager.
PLAN OF DISTRIBUTION
The Trust, at the direction of an investment manager, may sell shares on
the markets in which the capital stock is traded, through underwriters, in
private transactions or otherwise.
Market sales may be effected from time to time in one or more
transactions, including block transactions, (i) on any of the U.S. securities
exchanges on which the capital stock is listed, including the New York Stock
Exchange, the Chicago Stock Exchange and the Pacific Stock Exchange, in
transactions that may include special offerings, exchange distributions
pursuant to and in accordance with the rules of such exchanges, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or in the over-the-counter market or (iv) in a combination of any
such transactions. Such transactions may be effected by the Trust at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, at negotiated prices or at fixed prices. The Trust may effect
such transactions by selling shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts or
commissions from the Trust and may receive commissions from the purchasers of
shares for whom they may act as agent.
LEGAL OPINIONS
The legality of the shares in this offering will be passed upon by Mr.
David S. Hershberg, our Vice President and Assistant General Counsel. Mr.
Hershberg, together with members of his family, owns, has options to purchase
and has other interests in shares of our capital stock.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Current Report on Form 8-K dated November 4, 2002 have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement sets forth the estimated amounts of expenses,
other than underwriting discounts, to be borne by us in connection with the
offerings described in this Registration Statement:
Securities and Exchange Commission
Registration Fee............................................ $184,000
Printing and Engraving Expenses................................ 25,000
Accounting Fees and Expenses................................... 15,000
Legal Fees and Expenses........................................ 70,000
Listing Fees................................................... 0
Miscellaneous Expenses......................................... 15,000
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Total Expenses............................................ $309,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our By-Laws (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 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."
Our Certificate of Incorporation (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, we maintain directors' and officers' liability insurance
policies.
ITEM 16. EXHIBITS.
(4) Certificate of Incorporation.***
(5) Opinion of IBM Legal Counsel (David S. Hershberg, Esq.).**
(23) (a) Consent of Independent Accountants.*
(23) (b) Consent of Counsel (included in Exhibit (5)).**
(24) (a) Powers of Attorney.**
(24) (b) Certified copy of a resolution adopted by our Board of
Directors authorizing execution of the registration statement
by power of attorney.**
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* Filed herewith.
** Previously filed in connection with this Registration Statement.
*** Incorporated by reference to Exhibit 3(i) of our Form 8-K filed April 28,
1999.
ITEM 17. UNDERTAKINGS.
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 (other than as
provided in the proviso and instructions to Item 512(a) of Regulation S-K) (i)
to include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
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.
(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.
(4) 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 Securities Exchange Act of 1934 that is
incorporated by reference in the 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.
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 provisions described in Item 15 above, 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 Act 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 in the successful defense of any action, suit or
proceeding) is asserted by such officer, director 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 of
whether or not such indemnification by it is against public policy as
expressed in the Act 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-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, on the 24th day of December, 2002.
INTERNATIONAL BUSINESS MACHINES
CORPORATION
By: *
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Name: Louis V. Gerstner, Jr.
Title: Chairman of the
Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
* Chairman of the Board December 24, 2002
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Louis V. Gerstner, Jr.
* President and Chief Executive December 24, 2002
-------------------------------------- Officer
Samuel J. Palmisano
* Chief Financial Officer December 24, 2002
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John R. Joyce
* Vice President and Controller December 24, 2002
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Robert F. Woods
* Director December 24, 2002
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Cathleen Black
* Director December 24, 2002
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Kenneth I. Chenault
* Director December 24, 2002
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Nannerl O. Keohane
* Director December 24, 2002
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Charles F. Knight
* Director December 24, 2002
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Minoru Makihara
* Director December 24, 2002
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Lucio A. Noto
* Director December 24, 2002
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John B. Slaughter
* Director December 24, 2002
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Sidney Taurel
* Director December 24, 2002
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Alex Trotman
* Director December 24, 2002
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Charles M. Vest
*By: /s/ ANDREW BONZANI
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Andrew Bonzani
ATTORNEY-IN-FACT
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 17, 2002, except for Note w,
as to which the date is June 3, 2002, relating to the financial statements
which appears in the Current Report on Form 8-K dated November 4, 2002. We
also consent to the incorporation by reference of our report dated January 17,
2002 relating to the financial statement schedule, which appears in
International Business Machines Corporation's Annual Report on Form 10-K for
the year ended December 31, 2001. We also consent to the reference to us under
the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
New York, New York
December 20, 2002