Registration No. 33-
===============================================================================
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)
State of New York 13-0871985
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Armonk, New York 10504
- ------------------------------- -------------------
(Address of Principal Executive (Zip Code)
Offices)
IBM Non-Employee Directors Stock Option Plan
--------------------------------------
(Full title of the plan)
John E. Hickey, Secretary
International Business Machines Corporation
Armonk, New York 10504
(914) 765-1900
-----------------------------
(Name, address and telephone number
of agent for service)
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered: registered: share: price: fee:
- ----------- ----------- ---------- --------- ------------
Capital Stock
($1.25 Par 200,000 shares $89.125* $17,825,000* $6,146.55
Value)
*Estimated solely for the purpose of calculating the registration fee
and based on the average of the highest and lowest prices at which
shares of Capital Stock of the Corporation were sold on June 9, 1995
(NYSE-Composite Transactions)
================================================================================
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating directors as specified by
Rule 428(b)(1) under the Securities Act of 1933, as amended (the
"Act"). These documents and the documents incorporated by reference
into this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Act.
Capitalized terms used but not defined herein shall have the same
meanings ascribed to them in the IBM Non-Employee Directors Stock
Option Plan (the "Plan").
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Annual Report of International Business Machines Corporation
("IBM") on Form 10-K for the fiscal year ended December 31, 1994 is
incorporated herein by reference. All other reports filed since
December 31, 1994 by IBM pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") are also
incorporated by reference. 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.
None.
<PAGE>
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 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 any time."
The Certificate of Incorporation of IBM (Article ELEVENTH) 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
<PAGE>
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 Reference
- -------------- ---------
(4) Instruments defining the rights of security
holders, including indentures.................................None
(5) Opinion re: legality
The opinion, dated June 14, 1995, of Peter M. Acton,
duly admitted to practice in the State of New York and
Associate General Counsel of IBM, as to the legality of
the securities being registered..........................Exhibit 5
(15) Letter re: unaudited interim financial information..........None
(23) Consents of experts and counsel
(a) the consent of Price Waterhouse LLP.............Exhibit 23(a)
(b) the consent of Peter M. Acton (included in Exhibit 5)
(24) Powers of attorney (filed with Registration Statement
No. 33-60225, dated June 14, 1995)
(28) Information from reports furnished to state insurance
regulatory authorities....................................None
(99) Additional Exhibits...........................................None
<PAGE>
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 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; 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.
(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 and each filing of the Plan's annual
report pursuant to section 15(d) of the Exchange Act 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.
(h) 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 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 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 Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. 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, thereunto duly authorized, in the town of
North Castle, State of New York, on the 14th day of June, 1995.
INTERNATIONAL BUSINESS MACHINES CORPORATION
By
/s/ JOHN E. HICKEY
-------------------------------------------
(John E. Hickey, Secretary)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- ----------------------------------------------------------------------
Louis V. Gerstner, Jr. Chairman of the Board )
of Directors and Chief )
Executive Officer )
(Principal Executive )
Officer) )
)
Jerome B. York Director and )
Senior Vice President ) By:
and Chief Financial ) /s/JOHN E. HICKEY
Officer (Principal ) -----------------
Financial Officer) ) (John E. Hickey,
) Attorney-in-Fact)
Jerome B. York Acting Controller ) June 14, 1995
(Principal Accounting )
Officer) )
)
Harold Brown Director )
Fritz Gerber Director )
Nannerl O. Keohane Director )
Charles F. Knight Director )
Lucio A. Noto Director )
John B. Slaughter Director )
Alex Trotman Director )
Lodewijk C. van Wachem Director )
Charles M. Vest Director )
<PAGE>
EXHIBIT INDEX
EXHIBIT NO.
- -----------
5 Opinion of Peter M. Acton, Associate General Counsel
23(a) Consent of Independent Accountants
23(b) Consent of Counsel (included in Exhibit 5)
24 Powers of Attorney (filed with Registration Statement
No. 33-60225, dated June 14, 1995
<PAGE>
EXHIBIT 5
June 14, 1995
International Business Machines Corporation
Old Orchard Road
Armonk, NY 10504
Dear Sirs:
As Associate General Counsel of International Business Machines
Corporation (herein called the "Corporation") and an attorney duly
admitted to practice in the State of New York, I am familiar with the
proceedings by which it was organized, the proceedings by which its
Certificate of Incorporation has from time to time been amended, the
proceedings by which the IBM Non-Employee Directors Stock Option Plan
(herein called the "Plan") was adopted by the Board of Directors and
the stockholders of the Corporation at their meetings on February 28,
1995 and April 25, 1995, respectively, and authorized to issue the
Corporation's Capital Stock requiring this registration.
I have also reviewed such documents and records as I have deemed
necessary to enable me to express an informed opinion with respect to
the matters covered hereby.
Based upon the foregoing, I am of the opinion that:
1. The Corporation has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of New
York; and,
2. The Plan has been duly and validly authorized and adopted, and the
shares of the Corporation's capital stock, par value $1.25, being
registered hereunder that may be issued to its participants, when
issued or sold in accordance with the Plan, will be validly issued,
fully paid and non-assessable, and no personal liability will attach
to the holders thereof under the laws of the State of New York, in
which the Corporation is incorporated and in which its principal place
of business is located.
I hereby consent to the use of my name in the Registration Statement
as counsel who has passed upon the legality of the Capital Stock that
may be offered under this registration, and to the use of this opinion
as a part of the Registration Statement as required by Section 7 of
the Securities Act of 1933, as amended.
Very truly yours,
/s/ PETER M. ACTON
------------------------
Peter M. Acton
Associate General Counsel
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 20,
1995 appearing on page 35 of the 1994 Annual Report to Shareholders 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, 1994.
Furthermore, we consent to the incorporation by reference of our
report on the Financial Statement Schedule which appears on page 7 of
such Annual Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
----------------------
PRICE WATERHOUSE LLP
New York, N.Y.
June 13, 1995
