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ORIGINAL ELECTRONICALLY TRANSMITTED TO THE SECURITIES AND EXCHANGE COMMISSION ON
DECEMBER 9, 1994
REGISTRATION NO. 33-54375(2)
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
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)
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NEW YORK
(State or other jurisdiction of
incorporation or organization)
13-0871985
(I.R.S. employer identification number)
ARMONK, NEW YORK 10504
(914) 765-1900
(Address, including zip code, and telephone number, including area code of
registrant's principal executive offices)
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JOHN E. HICKEY
SECRETARY
INTERNATIONAL BUSINESS MACHINES CORPORATION
ARMONK, NEW YORK 10504
(914) 765-1900
(Name, address, including zip code, and telephone number, including area code of
agent for service)
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COPY TO:
ROBERT ROSENMAN
CRAVATH, SWAINE & MOORE
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
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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.
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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 to be 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, please check the following box: /X/
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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.
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(1) Pursuant to Rule 429 of the Rules and Regulations of the Securities and
Exchange Commission under the Securities Act of 1933, the Prospectus included in
this Registration Statement also relates to up to 671,030 shares of Capital
Stock previously registered under the registrant's Registration Statement on
Form S-3 (Registration No. 33-50095), less the amount of any such shares offered
on or after the date hereof and prior to the date this Registration Statement
shall be declared effective.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
All of the expenses in connection with the offering described in this
Registration Statement other than those listed below will be borne by the
Selling Shareholder. The following sets forth the estimated amounts of such
expenses to be borne by the Company:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............ $175,512
Printing and Engraving Expenses................................ 20,000
Accounting Fees and Expenses................................... 10,000
Legal Fees and Expenses........................................ 20,000
Listing Fees................................................... 33,000
Miscellaneous Expenses......................................... 1,488
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Total Expenses............................................ $260,000
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</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721-726 of the New York Business Corporation Law ("NYBCL") contain
non-exclusive provisions for indemnification of officers and directors of a
corporation under certain specified conditions, including, in part: (a)
indemnification against judgments, fines, amounts paid in settlement of, and
reasonable expenses incurred as a result of, an action or proceeding, whether
civil or criminal, threatened or brought against such person (other than by one
bringing an action by or in the right of the corporation, but including an
action by or in the right of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such person served in any
capacity at the request of the corporation) if such person acted in good faith,
for a purpose which he reasonably believed to be in, or, in the case of service
for any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, not opposed to, the best interests of the corporation,
and, in criminal actions or proceedings, in addition, had no reasonable cause to
believe that his conduct was unlawful; (b) indemnification against amounts paid
in settlement and reasonable expenses incurred by such person in connection with
the defense or settlement of an action by or in the right of the corporation of
such director or officer acted, in good faith, for a purpose which he reasonably
believed to be in, or, in the case of service of any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of (1) a threatened action, or a
pending action which is settled or otherwise disposed of, or (2) any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the corporation, unless and only to the extent that the court, or if no action
was brought, a court of competent jurisdiction, determines the person is fairly
and reasonably entitled to indemnification; and (c) notwithstanding the failure
of a corporation to provide indemnification, indemnification pursuant to court
order.
Article Eleven of the Company's Restated Certificate of Incorporation
provides that pursuant to Section 402(b) of the NYBCL, the liability of the
Company's directors to the Company or its stockholders for damages for breach of
duty as a director shall be eliminated to the fullest extent permitted by the
NYBCL, as it exists or as it may be amended. No amendment or repeal of Article
Eleven shall apply to or have any effect on the liability of any director of the
Company for or with respect to any acts or omissions of such director occurring
prior to such amendment or repeal.
The By-laws of the Company provide that the Company 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 Company 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 Company served in any
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capacity at the request of the Company), by reason of the fact that such person
or such person's testator or intestate was a director or officer of the Company,
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 attorney's fees
actually and necessarily incurred as a result of such action or proceeding, or
any appeal therein.
The Company's Directors' and Officers' Liability Insurance Policy provides
for indemnification of the directors and officers of the Company against certain
liabilities.
ITEM 16. EXHIBITS.
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<CAPTION>
EXHIBIT
NUMBER
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(4)(a) Restated Certificate of Incorporation of the Company (incorporated by reference
to Exhibit VI of the Company's Form 10-K for the year ended December 31, 1992).
(4)(b) Certificate of Amendment to the Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 4.1 of the Current Report of the Company
on Form 8-K dated May 28, 1993).
(4)(c) By-laws of the Company (incorporated by reference to Exhibit V of the Company's
Form 10-K for the year ended December 31, 1993).
(5) Opinion of Robert S. Stone, Esq.*
(23)(a) Consent of Independent Accountants.
(23)(b) Consent of Counsel (included in Exhibit 5).
(24)(a) Powers of Attorney (incorporated by reference to Exhibit 24(a) of the Company's
Registration Statement on Form S-3 (Registration No. 33-50095) electronically
transmitted to the Securities and Exchange Commission on August 26, 1993, as
amended by Amendment No. 1 electronically transmitted to the Securities and
Exchange Commission on October 6, 1993).
(24)(b) Certified copy of a resolution adopted by the Company's Board of Directors
authorizing execution of the registration statement by power of attorney.*
</TABLE>
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* Filed electronically with the initial filing.
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.
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(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, on the 9th day of
December, 1994.
INTERNATIONAL BUSINESS MACHINES
CORPORATION
By: /s/ JEROME B. YORK
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Jerome B. York
Senior Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
* Chairman of the Board and Chief December 9, 1994
- --------------------------------- Executive Officer (Principal Executive
Louis V. Gerstner, Jr. Officer)
Senior Vice President and Chief December 9, 1994
- --------------------------------- Financial Officer (Principal Financial
Jerome B. York Officer)
Controller (Principal Accounting December 9, 1994
- --------------------------------- Officer)
Richard F. Wallman
* Director December 9, 1994
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Harold Brown
* Director December 9, 1994
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James E. Burke
* Director December 9, 1994
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Fritz Gerber
* Director December 9, 1994
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Nannerl O. Keohane
Director
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Charles F. Knight
* Director December 9, 1994
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Thomas S. Murphy
* Vice Chairman of the Board December 9, 1994
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Paul J. Rizzo
* Director December 9, 1994
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John B. Slaughter
Director
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Charles M. Vest
* Director December 9, 1994
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L.C. van Wachem
* Director December 9, 1994
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Edgar S. Woolard, Jr.
*By: /s/ JOHN E. HICKEY
John E. Hickey
Attorney-in-Fact
</TABLE>
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DESCRIPTION OF EXHIBITS
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
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(4)(a) Restated Certificate of Incorporation of the Company (incorporated by reference
to Exhibit VI of the Company's Form 10-K for the year ended December 31, 1992).
(4)(b) Certificate of Amendment to the Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 4.1 of the Current Report of the Company
on Form 8-K dated May 28, 1993).
(4)(c) By-laws of the Company (incorporated by reference to Exhibit V of the Company's
Form 10-K for the year ended December 31, 1993).
(5) Opinion of Robert S. Stone, Esq.*
(23)(a) Consent of Independent Accountants.
(23)(b) Consent of Counsel (included in Exhibit 5).
(24)(a) Powers of Attorney (incorporated by reference to Exhibit 24(a) of the Company's
Registration Statement on Form S-3 (Registration No. 33-50095) electronically
transmitted to the Securities and Exchange Commission on August 26, 1993, as
amended by Amendment No. 1 electronically transmitted to the Securities and
Exchange Commission on October 6, 1993).
(24)(b) Certified copy of a resolution adopted by the Company's Board of Directors
authorizing execution of the registration statement by power of attorney.*
</TABLE>
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* Filed with the initial filing.
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EXHIBIT (23)(A)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 16, 1994, which appears on page 19 of the 1993 Annual Report to
Stockholders of International Business Machines Corporation, which is
incorporated by reference in International Business Machines Corporation's
Annual Report on Form 10-K for the year ended December 31, 1993. We also consent
to the incorporation by reference of our report on the Financial Statement
Schedules, which appears on page 7 of such Annual Report on Form 10-K and to the
reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE L.L.P.
1177 Avenue of the Americas
New York, NY 10036
December 9, 1994
