Registration No. 333-[ ]
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
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International Business Machines Corporation
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(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.)
Old Orchard Road, Armonk, New York 10504
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(Address of Principal Executive (Zip Code)
Offices)
Tivoli Systems Inc. 1994 Stock Option Plan
Tivoli Systems Inc. 1990 Stock Option Plan
(collectively, the "Tivoli Plans")
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(Full title of the plan)
John E. Hickey, Vice President and Secretary
International Business Machines Corporation
Old Orchard Road
Armonk, New York 10504
(914) 765-1900
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(Name, address and telephone number
of agent for service)
CALCULATION OF REGISTRATION FEE
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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 692,343 $32.00* $22,154,976* $7,640
($1.25 Par Value) shares
*Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rule 457(h), based on a weighted average of the exercise prices
of Tivoli Systems Inc. options issued under the Tivoli Plans outstanding as
of the date hereof multiplied by a conversion factor to reflect the price
at which such options could be exercised to purchase shares of Capital
Stock of IBM on the date hereof pursuant to the Merger Agreement.
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<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 have been or will be sent or given to participating
employees as specified by Rule 428(b)(1) under the Securities Act
of 1933 (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.
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,
and the description of IBM's Common Stock set forth in IBM's
Registration Statements filed pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and any amendments or reports filed for the purpose of updating
such description, are incorporated herein by reference. All other
reports filed since December 31, 1994, by IBM pursuant to Section
13(a) or 15(d) of 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 4. Description of Securities.
Pursuant to the Agreement and Plan of Merger dated as of January
30, 1996 (the "Merger Agreement"), among IBM, Topaz Acquisition
Corp. and Tivoli Systems Inc. ("Tivoli"), IBM agreed to assume
all outstanding stock options of Tivoli (the "Tivoli Options")
issued pursuant to Tivoli's stock option plans (the "Tivoli
Plans") as of the Effective Time (as defined in the Merger
Agreement) of the merger contemplated therein. Under the Merger
Agreement, except as set forth below, each Tivoli Option will be
exercisable under the same terms and conditions as under the
applicable
<PAGE>
Tivoli Plan except that both the number of shares of Capital
Stock of IBM for which such option will be exercisable as well as
the exercise price of such option will be adjusted pursuant to
the Merger Agreement. In addition, in accordance with the Merger
Agreement, Tivoli has accelerated the exercisability of 50% of
the unexercisable installments of Tivoli Options outstanding as
of the date of the Merger Agreement, such acceleration having
been applied first to those options that were to become
exercisable the latest in time by their original terms.
Item 5. Interests of Named Experts and Counsel.
None.
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 the
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
<PAGE>
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 the
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 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Reference
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(4) Instruments defining the rights of security
holders, including indentures
(a) Tivoli Systems Inc. 1990 Stock Option
Plan .............................................. Exhibit 4(a)
(b) Tivoli Systems Inc. 1994 Stock Option
Plan .............................................. Exhibit 4(b)
(15) Letter re: unaudited interim financial information..... None
(23) Consents of experts and counsel
The consent of Price Waterhouse LLP..................... Exhibit 23(a)
(24) Powers of attorney...................................... Exhibit 24
(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:
(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. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in the registration statment or any material
change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are
incorporated by reference 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.
<PAGE>
(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
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 this 4th day of
March, 1996.
INTERNATIONAL BUSINESS MACHINES CORPORATION
By
/s/ G. Richard Thoman
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Name: G. Richard Thoman
Title: Senior Vice President and
Chief Financial Officer
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
- --------------------------------------------------------------------------
/s/ G. Richard Thoman Senior Vice President March 4, 1996
- --------------------- and Chief Financial
G. Richard Thoman Officer (Principal
Financial Officer)
Louis V. Gerstner, Jr. Chairman of the Board )
of Directors and Chief )
Executive Officer )
(Principal Executive )
Officer) )
James M. Alic Vice President and )
Controller (Principal )
Accounting Officer) )By:
Cathleen Black Director ) /s/ G. Richard Thoman
Harold Brown Director ) ----------------------
Juergen Dormann Director ) (Attorney-in-fact)
Nannerl O. Keohane Director )
Charles F. Knight Director ) March 4, 1996
Lucio A. Noto Director )
John B. Slaughter Director )
Alex Trotman Director )
Charles M. Vest Director )
<PAGE>
EXHIBIT INDEX
EXHIBIT NO.
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4(a) Tivoli Systems Inc. 1990 Stock Option Plan
4(b) Tivoli Systems Inc. 1994 Stock Option Plan
23(a) Consent of Independent Accountants
24 Powers of Attorney
<PAGE>
Exhibit 4(a)
TIVOLI SYSTEMS INC.
1990 STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Stock Option Plan
are to attract and retain the best available personnel for
positions of substantial responsibility, to provide
additional incentive to the Employees and Consultants of the
Company and to promote the success of the Company's
business.
Options granted hereunder may be either "incentive stock
options", as defined in Section 422A of the Internal Revenue
Code of 1986, as amended, or "nonstatutory stock options",
at the discretion of the Board and as reflected in the terms
of the written option agreement.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Board" shall mean the Committee, if one has been
appointed, or the Board of Directors of the Company, if
no Committee is appointed.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" shall mean the Common Stock of the
Company.
(d) "Company" shall mean TIVOLI Systems Inc., a Texas
corporation.
(e) "Committee" shall mean the Committee appointed by the
Board of Directors in accordance with paragraph (a) of
Section 4 of the Plan, if one is appointed.
(f) "Consultant" shall mean any person who is engaged by
the Company or any subsidiary to render consulting
services and is compensated for such consulting
services, and any director of the Company whether
compensated for such services or not; provided that if
and in the event the Company registers any class of any
equity security pursuant to Section 12 of the
Securities Exchange
<PAGE>
Act of 1934, as amended (the "Exchange Act"), the term
Consultant shall thereafter not include directors who
are not compensated for their services or are paid only
a director's fee by the Company.
(g) "Continuous Status as an Employee or Consultant" shall
mean the absence of any interruption or termination of
service as an Employee or Consultant. Continuous Status
as an Employee or Consultant shall not be considered
interrupted in the case of sick leave, military leave,
or any other leave of absence approved by the Board;
provided that such leave is for a period of not more
than 90 days or reemployment upon the expiration of
such leave is guaranteed by contract or statute.
(h) "Employee" shall mean any person, including officers
and directors, employed by the Company or any Parent or
Subsidiary of the Company. The payment of a director's
fee by the Company shall not be sufficient to
constitute "employment" by the Company.
(i) "Incentive Stock Option" shall mean an Option intended
to qualify as an incentive stock option within the
meaning of Section 422A of the Code.
(j) "Option" shall mean a stock option granted pursuant to
the Plan.
(k) "Optioned Stock" shall mean the Common Stock subject to
an Option.
(l) "Optionee" shall mean an Employee or Consultant who
receives an Option.
(m) "Parent" shall mean a "parent corporation", whether now
or hereafter existing, as defined in Section 425(e) of
the Code.
(n) "Plan" shall mean this 1990 Incentive Stock Option
Plan.
(o) "Share" shall mean a share of the Common Stock, as
adjusted in accordance with Section 11 of the Plan.
<PAGE>
(p) "Subsidiary" shall mean a "subsidiary corporation"
whether now or hereafter existing, as defined in
Section 425(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of
shares which may be optioned and sold under the Plan is
13,201,040 shares of Common Stock. The Shares may be
authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any
reason without having been exercised in full, the
unpurchased Shares which were subject thereto shall, unless
the Plan shall have been terminated, become available for
future grant under the Plan.
4. Administration of the Plan.
(a) Procedure. The plan shall be administered by the Board
of Directors of the Company.
(i) Subject to subparagraph (ii), the Board of
Directors may appoint a Committee consisting of
not less than two members of the Board of
Directors to administer the Plan on behalf of the
Board of Directors, subject to such terms and
conditions as the Board of Directors may
prescribe. Once appointed, the Committee shall
continue to serve until otherwise directed by the
Board of Directors. From time to time the Board of
Directors may increase the size of the Committee
and appoint additional members thereof, remove
members (with or without cause) and appoint new
members in substitution therefor, fill vacancies
however caused, or remove all members of the
Committee and thereafter directly administer the
Plan.
Members of the Board who are either eligible for
Options or have been granted Options may vote on
any matters affecting the administration of the
Plan or the grant of any Options pursuant to the
Plan, except that no such member shall act upon
the granting of an Option to himself, but any such
member may be counted in determining the existence
of a
<PAGE>
quorum at any meeting of the Board during which
action is taken with respect to the granting of
Options to him.
(ii) Notwithstanding the foregoing subparagraph (i), if
and in any event the Company registers any class
of any equity security pursuant to Section 12 of
the Exchange Act, from the effective date of such
registration until six months after the
termination of such registration, any grants of
options to officers or directors shall only be
made by the Board of Directors; provided, however,
that if a majority of the Board of Directors is
eligible to participate in this Plan or any other
stock option or other stock plan of the Company or
any of its affiliates, or has been eligible at any
time with the preceding year, any grants of
options to directors must be made by, or only in
accordance with the recommendation of, a Committee
consisting of three or more persons, who may but
need not be directors or employees of the Company,
appointed by the Board of Directors and having
full authority to act in the matter, none of whom
is eligible to participate in this Plan or any
other stock option or other stock plan of the
Company or any of its affiliates, or has been
eligible at any time within the preceding year.
Any Committee administering the Plan with respect
to grants to officers who are not also directors
shall conform to the requirements of the preceding
sentence. Once appointed, the Committee shall
continue to serve until otherwise directed by the
Board of Directors. Subject to the foregoing, from
time to time the Board of Directors may increase
the size of the Committee and appoint additional
members thereof, remove members (with or without
cause) and appoint new members in substitution
therefor, fill vacancies however caused, or remove
all members of the Committee and thereafter
directly administer the Plan.
(b) Powers of the Board. Subject to the provisions of the
Plan, the Board shall have the authority, in
<PAGE>
its discretion: (i) to grant incentive Stock Options,
in accordance with Section 422A of the Code, or
nonstatutory stock options; (ii) to determine, upon
review of relevant information and in accordance with
Section 8(b) of the Plan, the fair market value of the
Common Stock; (iii) to determine the exercise price per
share of Options to be granted, which exercise price
shall be determined in accordance with Section 8(a) of
the Plan; (iv) to determine the Employees or
Consultants to whom, and the time or times at which,
Options shall be granted and the number of shares to be
represented by each Option; (v) to interpret the Plan;
(vi) to prescribe, amend and rescind rules and
regulations relating to the Plan; (vii) to determine
the terms and provisions of each Option granted (which
need not be identical) and, with the consent of the
holder thereof, modify or amend each Option; (viii) to
accelerate or defer (with the consent of the Optionee)
the exercise date of any Option, consistent with the
provisions of Section 5 of the Plan; (ix) to authorize
any person to execute on behalf of the Company any
instrument required to effectuate the grant of an
Option previously granted by the Board; and (x) to make
all other determinations deemed necessary or advisable
for the administration of the Plan.
(c) Effect of Board's Decision. All decisions,
determinations and interpretations of the Board shall
be final and binding on all Optionees and any other
holders of any Options granted under the Plan.
5. Eligibility.
(a) Nonstatutory Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted
only to Employees. An Employee or Consultant who has
been granted an Option may, if he is otherwise
eligible, be granted an additional Option or Options.
(b) No Incentive Stock Option may be granted to an Employee
which, when aggregated with all other Incentive Stock
Options granted to such Employee by the Company or any
Parent or Subsidiary, would
<PAGE>
result in Shares having an aggregate fair market value
(determined for each Share as of the date of grant of
the Option covering such Share) in excess of $100,000
becoming first available for purchase upon exercise of
one or more Incentive Stock Options during any calendar
year.
(c) Section 5(b) of the Plan shall apply only to an
Incentive Stock Option evidenced by an "Incentive Stock
Option Agreement" which sets forth the intention of the
Company and the Optionee that such Option shall qualify
as an Incentive Stock Option. Section 5(b) of the Plan
shall not apply to any Option evidenced by a
"Nonstatutory Stock Option Agreement" which sets forth
the intention of the Company and the Optionee that such
Option shall be a nonstatutory stock option.
(d) The Plan shall not confer upon any Optionee right with
respect to continuation of employment or consulting
relationship with the Company, nor shall it interfere
in any way with his right or the Company's right to
terminate his employment or consulting relationship at
any time.
6. Term of Plan. The Plan shall become effective upon the
earlier to occur of its adoption by the Board of Directors
or its approval by the shareholders of the Company as
described in Section 17 of the Plan. It shall continue in
effect for a term of ten (10) years unless sooner terminated
under Section 13 of the Plan.
7. Term of Option. The term of each Incentive Stock Option or
Nonstatutory Option shall be ten (10) years from the date of
grant thereof or such shorter term as may be provided in the
Stock Option Agreement. However, in the case of an Option
granted to an Optionee who, at the time the Option is
granted, owns stock representing more than ten percent (10%)
of the combined voting power of all classes of stock of the
Company or any Parent or Subsidiary, if the Option is an
Incentive Stock Option, the term of the Option shall be five
(5) years from the date of grant thereof or such shorter
time as may be provided in the Stock Option Agreement.
<PAGE>
8. Exercise Price and Consideration.
(a) The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be such
price as is determined by the Board, but shall be
subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of
the grant of such Incentive Stock Option,
owns stock representing more than ten percent
(10%) of the combined voting power of all
classes of stock of the Company or any Parent
or Subsidiary, the per Share exercise price
shall be no less than 110% of the fair market
value per Share on the date of grant.
(B) granted to any Employee, the per Share
exercise price shall be no less than 100% of
the fair market value per Share on the date
of grant.
(ii) In the case of a nonstatutory stock option
(A) granted to a person who at the time of the
grant of such Option, owns stock representing
more than ten percent (10%) of the voting
power of all classes of stock of the Company
or any Parent or Subsidiary, the per Share
exercise price shall be no less than 110% of
the fair market value per Share on the date
of the grant.
(B) granted to a person, the per Share exercise
price shall be no less than 100% of the fair
market value per Share on the date of grant.
(iii) In the case of an Option granted on or after the
effective date of registration of any class of
equity security of the Company pursuant to Section
12 of the Exchange Act and prior to six months
after the termination of such registration, the
per Share exercise price shall be no less than
100% of the fair
<PAGE>
market value per Share on the date of the grant.
(b) The fair market value shall be determined by the
Board in its discretion, except where there is a
public market for the Common Stock, the fair
market value per Share shall be the mean of the
bid and asked prices of the Common Stock for the
date of grant, as reported in the Wall Street
Journal (or if not so reported, as otherwise
reported by the National Association of Securities
Dealers Automated Quotation (NASDAQ) System) or,
in the event of the Common Stock is listed on a
stock exchange, the fair market value per Share
shall be the closing price on such exchange on the
date of grant of the Option, as reported in the
Wall Street Journal.
(c) The consideration to be paid for the Shares to be
issued upon exercise of an Option, including the
method of payment, shall be determined by the
Board and may consist entirely of cash, check,
promissory note, other Shares of Common Stock
having a fair market value on the date of
surrender equal to the aggregate exercise price of
the Shares as to which said option shall be
exercised, or any combination of such methods of
payment, or such other consideration and method of
payment for the issuance of Shares to the extent
permitted under the Texas Business Corporation
Act.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder.
Any Option granted hereunder shall be exercisable
at such times and under such conditions as
determined by the Board, including performance
criteria with respect to the Company and/or the
Optionee, and as shall be permissible under the
terms of the Plan.
An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed to be exercised when
written notice of such exercise has been given to
the Company in accordance with the terms of the
<PAGE>
Option by the person entitled to exercise the
Option and full payment for the Shares with
respect to which the Option is exercised has been
received by the Company. Full payment may, as
authorized by the Board, consist of any
consideration and method of payment allowable
under Section 8(c) of the Plan. The shares
delivered in connection with the exercise of an
option shall be deemed issued on the exercise
date. All rights as a shareholder, including the
right to vote or receive dividends, shall exist
with respect to the optioned stock on such
exercise date.
Exercise of an Option in any manner shall result
in a decrease in the number of Shares which
thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the
number of Shares as to which the Option is
exercised.
(b) Termination of Status as an Employee or
Consultant. If an Employee or Consultant ceases to
serve as an Employee or Consultant he may, but
only within thirty (30) days (or such other period
of time not exceeding three (3) months as is
determined by the Board at the time of grant of
the Option) after the date he ceases to be an
Employee or Consultant of the Company, exercise
his Incentive Stock Option or Nonstatutory Stock
Option to the extent that he was entitled to
exercise it at the date of such termination. To
the extent that he was not entitled to exercise
the Incentive Stock Option or Nonstatutory Stock
Option at the date of such termination, or if he
does not exercise such Incentive Stock Option or
Nonstatutory Stock Option (which he was entitled
to exercise) within the time specified herein, the
Option shall terminate.
(c) Disability of Optionee. Notwithstanding the
provisions of Section 9(b) above, in the event an
Employee is unable to continue his employment
relationship with the Company as a result of his
total and permanent disability (as defined in
Section 22(e)(3) of the Code), he may, but only
within six (6) months (or such other period of
time not exceeding twelve (12) months as is
<PAGE>
determined by the Board at the time of grant of
the Option) from date of termination. To the
extent that he was entitled to exercise the Option
at the date of termination, or if he does not
exercise his Incentive Stock Option or
Nonstatutory Stock Option to the extent he was
entitled to exercise it at the date of such
termination, or if he does not exercise an
Incentive Stock Option or Nonstatutory Stock
Option (which he was entitled to exercise) within
the time specified herein, the Option shall
terminate.
(d) Death of Optionee. In the event of the death of an
Optionee:
(i) during the term of the Incentive Stock
Option, or Nonstatutory Stock Option who is
at the time of his death an Employee of the
Company and who shall have been in Continuous
Status as an Employee since the date of grant
of the Incentive Stock Option or Nonstatutory
Stock Option, as applicable, the Option may
be exercised at any time within six (6)
months following the date of death, by the
Optionee's estate or by a person who acquired
the right to exercise the Incentive Stock
Option or Nonstatutory Stock Option by
bequest or inheritance, but only to the
extent of the right to exercise that had
accrued at the date of death; or
(ii) within thirty (30) days or such other period
of time not exceeding three (3) months as is
determined by the Board at the time of grant
of the Incentive Stock Option or Nonstatutory
Stock Option after the termination of
Continuous Status as an Employee, the
Incentive Stock Option or Nonstatutory Stock
Option may be exercised, at any time within
six (6) months following the date of death,
by the Optionee's estate or by a person who
acquired the right to exercise the Incentive
Stock Option or Nonstatutory Stock Option by
bequest or inheritance, but only to the
extent of the right to exercise that had
accrued at the date of termination.
<PAGE>
(e) Limitation on Term. Notwithstanding the foregoing,
no stock options may be exercisable on a date
greater than the date which is ten years from the
grant of such options.
10. Non-Transferability of Optionee. The Option may not be sold,
pledged, assigned, hypothecated, transferred, or disposed in
any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of
the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger.
Subject to any required action by the shareholders of the
Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common
Stock which have been authorized for issuance under the Plan
but as to which no Options have yet been granted or which
have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall
be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any
other increase or decrease in the number of issued shares of
Common Stock effected without receipt of consideration by
the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration". Such
adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect,
and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock
subject to an Option.
In the event of the proposed dissolution or liquidation of
the Company, the Option will terminate immediately prior to
the consummation of such proposed action, unless otherwise
provided by the Board. The Board may, in the exercise of its
sole discretion, in such instances, declare that any Option
shall terminate as of a date fixed by the Board and give
each Optionee the
<PAGE>
right to exercise his Option as to all or any part of the
Optioned Stock, including Shares as to which the Option
would not otherwise be exercisable. In the event of a
proposed sale of all or substantially all of the assets of
the Company, or the merger of the Company with or into
another corporation, the Option shall be assumed or an
equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of each successor
corporation, unless the Board determines, in the exercise of
its sole discretion and in lieu of such assumption or
substitution, that the Optionee shall have the right to
exercise the Option as to all of the Optioned Stock,
including Shares as to which the Option would not otherwise
be exercisable. If the Board makes an Option fully
exercisable in lieu of assumption or substitution in the
event of a merger or sale of assets, the Board shall notify
the Optionee that the Option shall be fully exercisable for
a period of thirty (30) days from the date of such notice,
and the Option will terminate upon the expiration of such
period.
12. Time of Granting Options. The date of an Option shall, for
all purposes, be the date on which the Board makes the
determination granting such Option. Notice of the
determination shall be given to each Employee or Consultant
to whom an Option is so granted within a reasonable time
after the date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respects
as the Board may deem advisable; provided that the
following revisions or amendments shall require
approval of the shareholders of the Company in the
manner described in Section 17 of the Plan:
(i) any increase in the number of Shares subject to
the Plan, other than in connection with an
adjustment under Section 11 of the Plan;
(ii) any change in the designation of the class of
employee or consultants eligible to be granted
Options; or
<PAGE>
(iii) if the Company has a class of equity security
registered under Section 12 of the Exchange Act at
the time of such revision or amendment, any
material increase in the benefits accruing to
participants under the Plan.
(b) Shareholder Approval. If any amendment requiring
shareholder approval under Section 13(a) of the Plan is
made subsequent to the first registration of any class
of equity security by the Company under Section 12 of
the Exchange Act, such shareholder approval shall be
solicited as described in Section 17(a) of the Plan.
(c) Effect of Amendment or Termination. Any such amendment
or termination of the Plan shall not affect the Options
already granted and such Options shall remain in full
force and effect as if this Plan had not been amended
or terminated, unless mutually agreed otherwise between
the Optionee and the Board, which agreement must be in
writing and signed by the Optionee and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be
issued pursuant to the exercise of an Option unless the
exercise of such Option and the issuance and delivery of
such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the
rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the Shares may
then be listed, and shall be further subject to the approval
of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and
warrant at the time of any such exercise that the Shares are
being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is
required by any of the aforementioned relevant provisions of
law.
15. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available
<PAGE>
such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
Inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the
failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained.
16. Option Agreement. Option shall be evidenced by written
option agreements in such form as the Board shall approve.
17. Shareholder Approval. Continuance of the Plan shall be
subject to approval by the shareholders of the Company
within twelve (12) months before or after the date the Plan
is adopted. If such shareholder approval is obtained at a
duly held shareholders' meeting, it may be obtained by the
affirmative vote of the holders of a majority of the
outstanding shares of the Company, such holders being
present or represented and entitled to vote thereon. If and
in the event that the Company registers any class of any
equity security pursuant to Section 12 of the Exchange Act,
the approval of such shareholders of the Company shall be:
(a) (1) solicited substantially in accordance with Section
14(a) of the Exchange Act and the rules and regulations
promulgated thereunder, or (2) solicited after the
Company has furnished in writing to the holders
entitled to vote substantially the same information
concerning the Plan as that which would be required by
the rules and regulations in effect under Section 14(a)
of the Exchange Act at the time such information is
furnished; and
(b) obtained at or prior to the first annual meeting of
shareholders held subsequent to the first registration
of any class of equity securities of the Company under
Section 12 of the Exchange Act.
18. Information to Optionees. The Company shall make available
to each Optionee, during the period for which such Optionee
has one or more Options outstanding, copies of all annual
reports and other information
<PAGE>
which are provided to all shareholders of the Company. The
Company shall not be required to provide such information if
the issuance of Options under the Plan is limited to key
employees whose duties in connection with the Company assure
their access to equivalent information.
<PAGE>
Exhibit 4(b)
TIVOLI SYSTEMS INC.
1994 STOCK OPTION PLAN
(as amended January 12, 1995)
ARTICLE ONE
General Provisions
I. PURPOSES OF THE PLAN
A. The 1994 Stock Option Plan ("Plan") was adopted effective
January 16, 1994 ("Effective Date") to promote the interests of Tivoli
Systems Inc., a Texas corporation ("Corporation"), by providing
eligible individuals with the opportunity to acquire a proprietary
interest, or otherwise increase their proprietary interest, in the
Corporation as an incentive for them to remain in the service of the
Corporation (or its parent or subsidiary corporations).
B. This Plan serves as the successor to the Corporation's
1990 Stock Option Plan ("1990 Plan"), and no further option grants
shall be made under the 1990 Plan from and after the Effective Date.
All options outstanding under the 1990 Plan on such Effective Date are
hereby incorporated into this Plan and shall accordingly be treated as
outstanding options under this Plan. However, each outstanding option
so incorporated shall continue to be governed solely by the express
terms and conditions of the instrument evidencing such grant, and no
provision of this Plan shall be deemed to affect or otherwise modify
the rights or obligations of the holders of such incorporated options
with respect to their acquisition of shares of the Corporation's
common stock thereunder or their exercise of any outstanding stock
appreciation rights thereunder.
II. DEFINITIONS
A. For purposes of the Plan, the following definitions shall
be in effect:
Board: the Corporation's Board of Directors.
Code: the Internal Revenue Code of 1986, as amended.
<PAGE>
Committee: the committee of two (2) or more Board members
appointed by the Board to administer the Plan.
Common Stock: shares of the Corporation's common stock.
Change in Control: a change in ownership or control of the
Corporation effected through either of the following transactions:
a. any person or related group of persons (other than the
Corporation or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Corporation)
directly or indirectly acquires beneficial ownership (within the
meaning of Rule 13d-3 of the 1934 Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities pursuant to a tender or exchange
offer made directly to the Corporation's stockholders which the Board
does not recommend such stockholders to accept; or
b. there is a change in the composition of the Board over a
period of thirty-six (36) consecutive months or less such that a
majority of the Board members (rounded up to the next whole number)
ceases, by reason of one or more proxy contests for the election of
Board members, to be comprised of individuals who either (A) have been
Board members continuously since the beginning of such period or (B)
have been elected or nominated for election as Board members during
such period by at least a majority of the Board members described in
clause (A) who were still in office at the time such election or
nomination was approved by the Board.
Corporate Transaction: any of the following
stockholder-approved transactions to which the Corporation is a party:
a. a merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of
the Corporation's outstanding securities are transferred to a person
or persons different from the persons who held those securities
immediately prior to such transaction, or
<PAGE>
b. the sale, transfer or other disposition of all or
substantially all of the Corporation's assets in complete liquidation
or dissolution of the Corporation.
Employee: an individual who performs services while in the
employ of the Corporation or one or more parent or subsidiary
corporations, subject to the control and direction of the employer
entity not only as to the work to be performed but also as to the
manner and method of performance.
Fair Market Value: the fair market value per share of Common
Stock determined in accordance with the following provisions:
a. If the Common Stock is not at the time listed or admitted
to trading on any national stock exchange but is traded on the Nasdaq
National Market, the Fair Market Value shall be the closing selling
price per share on the date in question, as such price is reported by
the National Association of Securities Dealers through the Nasdaq
National Market or any successor system. If there is no reported
closing selling price for the Common Stock on the date in question,
then the closing selling price on the last preceding date for which
such quotation exists shall be determinative of Fair Market Value.
b. If the Common Stock is at the time listed or admitted to
trading on any national stock exchange, then the Fair Market Value
shall be the closing selling price per share on the date in question
on the exchange determined by the Committee to be the primary market
for the Common Stock, as such price is officially quoted in the
composite tape of transactions on such change. If there is no reported
sale of Common Stock on such exchange on the date in question, then
the Fair Market Value shall be the closing selling price on the
exchange on the last preceding date for which such quotation exists.
c. If the Common Stock is at the time neither listed nor
admitted to trading on any Stock Exchange nor traded on the Nasdaq
National Market, then Fair Market Value shall be determined by the
Plan Administrator after taking into account such factors as the Plan
Administrator shall deem appropriate.
<PAGE>
Hostile Take-Over: a change in ownership of the Corporation
effected through the following transaction:
a. any person or related group of persons (other than the
Corporation or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Corporation)
directly or indirectly acquires beneficial ownership (within the
meaning of Rule 13d-3 of the 1934 Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities pursuant to a tender or exchange
offer made directly to the Corporation's stockholders which the Board
does not recommend such stockholders to accept, and
b. more than fifty percent (50%) of the securities so
acquired in such tender or exchange offer are accepted from holders
other than the officers and directors of the Corporation subject to
the short-swing profit restrictions of Section 16 of the 1934 Act.
IPO Effective Date: the date the Common Stock is registered
under Section 12(g) of the 1934 Act.
1934 Act: the Securities Exchange Act of 1934, as amended
from time to time.
Optionee: a person to whom an option is granted under the
Plan.
Permanent Disability or Permanently Disabled: the inability
of the Optionee to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
expected to result in death or to be of continuous duration of twelve
(12) months or more.
Plan Administrator: either the Board or the Committee, to
the extent the Committee is at the time responsible for the
administration of the Plan.
Service: the performance of services on a periodic basis for
the Corporation (or any parent or subsidiary corporation) in the
capacity of an Employee, a non-employee member of the board of
directors or an independent consultant or advisor, except to the
extent otherwise specifically provided in the applicable stock option
agreement.
<PAGE>
Take-Over Price: the greater of (a) the Fair Market Value
per share of Common Stock on the date the option is surrendered to the
Corporation in connection with a Hostile Take-Over or (b) the highest
reported price per share of Common Stock paid by the tender offeror in
effecting such Hostile Take-Over. However, if the surrendered option
is an incentive stock option under the Federal tax laws, the Take-Over
Price shall not exceed the clause (a) price per share.
B. The following provisions shall be applicable in
determining the parent and subsidiary corporations of the Corporation:
Any corporation (other than the Corporation) in an unbroken
chain of corporations ending with the Corporation shall be
considered to be a parent corporation of the Corporation,
provided each such corporation in the unbroken chain (other than
the Corporation) owns, at the time of the determination, stock
possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
Each corporation (other than the Corporation) in an unbroken
chain of corporations beginning with the Corporation shall be
considered to be a subsidiary of the Corporation, provided each
such corporation (other than the last corporation) in the
unbroken chain owns, at the time of the determination, stock
possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
III. ADMINISTRATION OF THE PLAN
A. The Plan shall be administered by the Board. However, any
or all administrative functions otherwise exercisable by the Board may
be delegated to the Committee.
B. From and after the IPO Effective Date, the Plan shall be
administered by the Committee; no Board member shall be eligible to
serve on the Committee if such individual has, within the twelve
(12)-month period immediately preceding the date he or she is to be
appointed to the Committee or, if shorter, the period commencing on
the IPO Effective Date and ending with the date of his or her
appointment to the Committee, received an option grant
<PAGE>
or stock issuance under this Plan or any other stock plan of the
Corporation (or any parent or subsidiary corporation). Members of the
Committee shall serve for such period of time as the Board may
determine and shall be subject to removal by the Board at any time.
C. The Plan Administrator shall have full power and
authority (subject to the express provisions of the Plan) to establish
such rules and regulations as it may deem appropriate for the proper
administration of the Plan and to make such determinations and
interpretations concerning such program and any outstanding option
under the Plan as it may deem necessary or advisable. Decisions of the
Plan Administrator shall be final and binding on all parties with an
interest in any outstanding option under the Plan.
IV. ELIGIBILITY FOR OPTION GRANTS
A. The persons eligible to participate in the Plan shall be
limited to the following:
(i) officers and other employees of the Corporation (or its
parent or subsidiary corporations) who render services which
contribute to the management, growth and financial success of the
Corporation (or its parent or subsidiary corporations); and
(ii) those consultants or independent contractors who
provide valuable services to the Corporation (or its parent or
subsidiary corporations); and
(iii) non-employee members of the board of directors of the
Corporation (or its parent or subsidiary corporations).
B. Non-employee members of the Board shall not be eligible
to participate in the Plan or in any other stock option, stock
purchase, stock bonus or other stock plan of the Corporation (or its
parent or subsidiary corporations) after the IPO Effective Date.
C. The Plan Administrator shall have full authority to
determine which eligible individuals are to receive option grants
under the Plan, the number of shares to be covered by each such grant,
whether the granted option is to be an incentive stock option
("Incentive Option") which satisfies the requirements of Section 422
of the Code or a non-statutory option not intended to meet such
<PAGE>
requirements, the time or times at which each such option is to become
exercisable, and the maximum term for which the option is to remain
outstanding.
V. STOCK SUBJECT TO THE PLAN
A. Shares of the Corporation common stock , par value $0.01
pr share ("Common Stock") shall be available for issuance under the
Plan and shall be drawn from either the Corporation's authorized but
unissued shares of Common Stock or from reacquired shares of Common
Stock, including shares repurchased by the Corporation on the open
market. The aggregate number of shares available for issuance under
the Plan from and after the Effective Date, including the
2,000,000-share increase approved by the Board on January 12, 1995,
shall not exceed 14,543,482 shares of Common Stock, subject to
adjustment from time to time in accordance with the provisions of this
Section V. To the extent one or more outstanding options under the
1990 plan which have been incorporated into this Plan are subsequently
exercised, the number of shares issued with respect to each such
option shall reduce, on a share-for-share basis, the number of shares
available for issuance under this Plan. In no event may any one
officer of the Corporation acquire shares of Common Stock under the
Plan in excess of thirty- five percent (35%) of the total share
reserve available for issuance under the Plan. The foregoing
limitation shall not be applicable to options granted on or before
December 31, 1993.
B. Should one or more outstanding options under this Plan
(including any outstanding options under the 1990 Plan incorporated
into this Plan) expire or terminate for any reason prior to exercise
in full (including any option cancelled in accordance with the
cancellation-regrant provisions of Section IV or Article Two of the
Plan), the shares subject to the portion of the option not so
exercised shall be available for subsequent option grant under the
Plan. Shares subject to any option or portion thereof surrendered or
cancelled in accordance with Section V of Article Two and shares
repurchased by the Corporation pursuant to its repurchase rights under
the Plan shall not be available for subsequent option grant under the
Plan. Should the option price of an outstanding option under the Plan
(including any option incorporated from the 1990 Plan) be paid with
shares of Common Stock or should shares of Common Stock otherwise
issuable under the Plan be withheld by the Corporation in satisfaction
of the withholding taxes
<PAGE>
incurred in connection with the exercise of an outstanding option
under the Plan, then the number of shares available for issuance under
the Plan shall be reduced by the gross number of shares for which the
option is exercised, and not by the net number of shares of Common
Stock issued to the option holder.
C. In the event any change is made to the Common Stock
issuable under the Plan by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other
change affecting the outstanding Common Stock as a class without
receipt of consideration, then appropriate adjustments shall be made
to (i) the number and/or class of shares issuable under the Plan; (ii)
the number and/or class of shares and price per share in effect under
reach outstanding option under the Plan (including each outstanding
option incorporated into this Plan from the 1990 Plan), and (iii) the
maximum number and/or class of shares issuable to any one officer of
the Corporation under the Plan. The purpose of such adjustments to the
outstanding options shall be to preclude the enlargement or dilution
of rights and benefits under such options. The adjustments determined
by the Plan Administrator shall be final, binding and conclusive.
ARTICLE TWO
OPTION GRANTS
I. TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to this Article Two shall be
authorized by action of the Plan Administrator and may, at the Plan
Administrator's discretion, be either Incentive Options or
non-statutory options. Individuals who are not Employees may only be
granted non-statutory options. Each option granted shall be evidenced
by one or more instruments in the form approved by the Plan
Administrator. Each such instrument shall, however, comply with the
terms and conditions specified below, and each instrument evidencing
an Incentive Option shall, in addition, be subject to the applicable
provisions of Section II of this Article Two.
A. Option Price.
1. The option price per share shall be fixed by the Plan
Administrator, but in no event shall the option
<PAGE>
price per share on the date of the option grant be less than (i) the
Fair Market Value per share of Common Stock in the case of an
Incentive Option and (ii) 85% of the Fair Market Value per share of
Common Stock in the case of a non- statutory option.
2. The option price shall become immediately due upon
exercise of the option and, subject to the provisions of Section VI of
this Article Two and the instrument evidencing the grant, shall be
payable in one of the following alternative forms:
- cash or check made payable to the Corporation's order;
- shares of Common Stock held by the Optionee for the
requisite period necessary to avoid a charge to the Corporation's
earnings for financial reporting purposes and valued at Fair
Market Value on the Exercise Date (as such term is defined
below); or
- through a broker-dealer sale and remittance procedure
pursuant to which the Optionee shall provide irrevocable written
instructions (I) to a Corporation- designated brokerage firm to
effect the immediate sale of the purchased shares and remit to
the Corporation, out of the sale proceeds available on the
settlement date, sufficient funds to cover the aggregate option
price payable for the purchased shares plus all applicable
Federal and state income and employment taxes required to be
withheld by the Corporation in connection with such purchase and
(II) to the Corporation to deliver the certificates for the
purchased shares directly to such brokerage firm in order to
complete the sale transaction.
For purposes of this Section I.A.2, the Exercise Date shall
be the date on which written notice of the option exercise is
delivered to the Corporation. Except to the extent the sale and
remittance procedure is used in connection with the exercise of the
option, payment of the option price for the purchased shares must
accompany such notice.
B. Term and Exercise of Options. Each option granted under
this Article Two shall be exercisable at such time or times, during
such period, and for such number of shares as shall be determined by
the Plan Administrator and
<PAGE>
set forth in the instrument evidencing the option grant. No such
option, however, shall have a maximum term in excess of ten (10) years
from the grant date. During the lifetime of the Optionee, the option
shall be exercisable only by the Optionee and shall not be assignable
or transferable by the Optionee otherwise than by will or by the laws
of descent and distribution following the Optionee's death.
C. Termination of Service.
1. The following provisions shall govern the exercise period
applicable to any options held by the Optionee at the time of
cessation of Service or death.
- Should the Optionee cease to remain in Service for any
reason other than death or permanent disability, then the period
for which each outstanding option held by such Optionee is to
remain exercisable shall be limited to the three (3)-month period
following the date of such cessation of Service.
- In the event such Service terminates by reason of
permanent disability (as defined in Section 22(e)(3) of the
Internal Revenue Code), then the period for which each
outstanding option held by the Optionee is to remain exercisable
shall be limited to the twelve (12)-month period following the
date of such cessation of Service.
- Should the Optionee die while in Service or during the
three (3)-month period following his or her cessation of Service,
then the period for which each of his or her outstanding options
is to remain exercisable shall be limited to the twelve
(12)-month period following the date of the Optionee's cessation
of Service. During such limited period, the option may be
exercised by the personal representative of the Optionee's estate
or by the person or persons to whom the option is transferred
pursuant to the Optionee's will or in accordance with the laws of
descent and distribution.
- Under no circumstances, however, shall any option be
exercisable after the specified expiration date of the option
term.
- Each such option shall, during such limited exercise
period, be exercisable for any or all of the
<PAGE>
shares for which the option is exercisable on the date of the
Optionee's cessation of Service. Upon the expiration of such
limited exercise period or (if earlier) upon the expiration of
the option term, the option shall terminate and cease to be
exercisable.
2. The Plan Administrator shall have discretion, exercisable
either at the time the option is granted or at any time while the
option remains outstanding, to permit one or more options held by the
Optionee under this Article Two to be exercised, during the limited
period of exercisability provided under Section I.C.1 above, not only
with respect to the number of shares for which each such option is
exercisable at the time of the Optionee's cessation of Service but
also with respect to one or more subsequent installments of
purchasable shares for which the option would otherwise have become
exercisable had such cessation of Service not occurred.
The Plan Administrator shall have discretion to extend the
period of time for which any option granted under this Article Two is
to remain exercisable following the Optionee's cessation of Service or
death from the limited period in effect under Section I.C.1 of this
Article Two to such greater period of time as the Plan Administrator
shall deem appropriate; provided, however, that in no event shall such
option be exercisable after the specified expiration date of the
option term.
D. Stockholder Rights. An Optionee shall have no stockholder
rights with respect to any shares covered by the option until such
individual shall have exercised the option and paid the option price
for the purchased shares.
E. Repurchase Rights. the shares of Common Stock acquired
upon the exercise of any Article Two option grant may be subject to
repurchase by the Corporation in accordance with the following
provisions:
1. The Plan Administrator shall have the discretion to
authorize the issuance of unvested shares of Common Stock under this
Article Two. Should the Optionee cease Service while holding such
unvested shares, the Corporation shall have the right to repurchase
any or all of those unvested shares at the option price paid per
share. The terms and conditions upon which such repurchase right shall
be exercisable (including the period and procedure for exercise and
the appropriate vesting schedule for the
<PAGE>
purchased shares) shall be established by the Plan Administrator and
set forth in the instrument evidencing such repurchase right. Should
the Optionee cease to remain in Service while holding one or more
unvested shares of Common Stock under the Plan, then those shares
shall be immediately surrendered to the Corporation for cancellation,
and the Optionee shall have no further stockholder rights with respect
to those shares, unless the Corporation waives its right of repurchase
in a writing delivered to the Optionee. The Corporation shall repay to
the Optionee the cash consideration paid for the surrendered shares
and shall cancel the principal balance of any outstanding purchase-
money note of the Optionee to the extent attributable to such
surrendered shares.
2. All of the Corporation's outstanding repurchase rights
under this Article Two shall automatically terminate, and all shares
subject to such terminated rights shall immediately vest in full, upon
the occurrence of a Corporate Transaction, except to the extent: (i)
any such repurchase right is expressly assigned to the successor
corporation (or parent thereof) in connection with the Corporate
Transaction or (ii) such termination is precluded by other limitations
imposed by the Plan Administrator at the time the repurchase right is
issued.
3. The Plan Administrator shall have the discretionary
authority, exercisable either before or after the Optionee's cessation
of Service, to cancel the Corporation's outstanding repurchase rights
with respect to one or more shares purchased or purchasable by the
Optionee under the Plan and thereby accelerate the vesting of such
shares in whole or in part at any time.
II. INCENTIVE OPTIONS
The terms and conditions specified below shall be applicable
to all Incentive Options granted under this Article Two. Incentive
Options may only be granted to individuals who are Employees. Options
which are specifically designated as "non-statutory" options when
issued under the Plan shall not be subject to such terms and
conditions.
A. Dollar Limitation. The aggregate Fair Market Value
(determined as of the respective date or dates of grant) of the Common
Stock for which one or more options granted to any Employee under this
Plan (or any other Option
<PAGE>
plan of the Corporation or its parent or subsidiary corporations) may
for the first time become exercisable as incentive stock options under
the Federal tax laws during any one calendar year shall not exceed the
sum of One Hundred Thousand Dollars ($100,000). To the extent the
Employee holds two or more such options which become exercisable for
the first time in the same calendar year, the foregoing limitation on
the exercisability of such options as incentive stock options under
the Federal tax laws shall be applied on the basis of the order in
which such options are granted.
B. 10% Stockholder. If any individual to whom an Incentive
Option is granted is the owner of stock (as determined under Section
424(d) of the Code) possessing 10% or more of the total combined
voting power of all classes of stock of the Corporation or any one of
its parent or subsidiary corporations ("10% Stockholder"), then the
option price per share shall not be less than one hundred and ten
percent (110%) of the Fair Market Value per share of Common Stock on
the grant date, and the option term shall not exceed five (5) years
measured from the grant date.
Except as modified by the preceding provisions of this
Section II, the provisions of the Plan shall apply to all Incentive
Options granted hereunder.
III. CORPORATE TRANSACTION/CHANGE IN CONTROL
A. In the event of any Corporate Transaction, each option
which is at the time outstanding under this Article Two shall
automatically accelerate so that each such option shall, immediately
prior to the specified effective date for the Corporate Transaction
become fully exercisable with respect to the total number of shares of
Common Stock at the time subject to such option and may be exercised
for all or any portion of such shares. However, an outstanding option
under this Article Two shall not so accelerate upon a Corporate
Transaction if and to the extent such option is, in connection with
the Corporate Transaction, either to be assumed by the successor
corporation or parent thereof or be replaced with a comparable option
to purchase shares of the capital stock of the successor corporation
or parent thereof. The determination of comparability shall be made by
the Plan Administrator, and its determination shall be final and
binding.
<PAGE>
B. Upon the consummation of the Corporate Transaction, all
outstanding options under the Plan shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation
or its parent company.
C. Each outstanding option under this Article Two which is
assumed in connection with the Corporate Transaction or is otherwise
to continue in effect shall be appropriately adjusted, immediately
after such Corporate Transaction, to apply and pertain to the number
and class of securities which would have been issued to the option
holder, in consummation of such Corporate Transaction, had such person
exercised the option immediately prior to such Corporate Transaction.
Appropriate adjustments shall also be made to the option price payable
per share, provided the aggregate option price payable for such
securities shall remain the same. In addition, the class and number of
securities available for issuance under the Plan following the
consummation of the Corporate Transaction shall be appropriately
adjusted.
D. The Plan Administrator shall have the discretion,
exercisable either in advance of a Corporate Transaction or at the
time of a Corporate Transaction, to provide (upon such terms as it may
deem appropriate) for (i) the automatic acceleration of one or more
outstanding options granted under the Plan which are assumed or
replaced in the Corporate Transaction and do not otherwise accelerate
at that time and/or (ii) the subsequent termination of one or more of
the Corporation's outstanding repurchase rights which are assigned in
connection with the Corporate Transaction and do not otherwise
terminate at that time, in the event Optionee's Service should
subsequently terminate following a Corporate Transaction.
E. The Plan Administrator shall have the discretionary
authority, exercisable either in advance of a Change in Control or at
the time of a Change in Control, to provide for the acceleration of
one or more outstanding options under the Plan (including one or more
options incorporated from the 1990 Plan) and the immediate termination
of one or more of the Corporation's outstanding repurchase rights
under this Article Two upon the occurrence of the Change in Control.
The Plan Administrator shall also have full power and authority to
condition any such option acceleration (and the termination of any
outstanding repurchase rights) upon the subsequent termination of the
<PAGE>
Optionee's Service within a specified period following the Change in
Control.
F. Any options accelerated in connection with the Change in
Control shall remain fully exercisable until the expiration or sooner
termination of the option term.
G. The grant of option under this Article Two shall in no
way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to
merge, consolidate, dissolve, liquidate or sell or transfer all or any
part of its business or assets.
H. The exercisability as incentive stock options under the
Federal tax laws of any options accelerated under this Section III in
connection with a Corporate Transaction or Change in Control shall
remain subject to the dollar limitation of Section II of this Article
Two. To the extent such dollar limitation is exceeded, the accelerated
option shall be exercisable as a non-statutory option under the
Federal tax laws.
IV. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect,
at any time and from time to time, with the consent of the affected
Optionees, the cancellation of any or all outstanding options under
this Article Two and to grant in substitution new options under the
Plan covering the same or different numbers of shares of Common Stock
but having an option price per share not less than 85% of the Fair
Market Value of the Common Stock on the new grant date (or 100% of
such Fair Market Value in the case of an Incentive Option and 110% of
such Fair Market Value in the case of an Incentive Option granted to a
10% Stockholder).
V. STOCK APPRECIATION RIGHTS
A. Each officer of the Corporation subject to the
short-swing profit restrictions of the Federal securities laws shall
be granted limited stock appreciation rights in tandem with their
outstanding options under this Article Two. Upon the occurrence of a
Hostile Take-Over, each outstanding option with such a limited stock
appreciation right in effect for at least six (6) months shall
automatically be cancelled and the Optionee shall in return be
entitled to a cash distribution from the
<PAGE>
Corporation in an amount equal to the excess of (i) the Take-Over
Price of the shares of Common Stock at the time subject to the
cancelled option (whether or not the option is otherwise at the time
exercisable for such shares) over (ii) the aggregate option price
payable for such shares. The cash distribution payable upon such
cancellation shall be made within five (5) days following the
consummation of the Hostile Take-Over. Neither the approval of the
Plan Administrator nor the consent of the Board shall be required in
connection with such option cancellation and cash distribution.
B. The shares of Common Stock subject to any option
surrendered or cancelled for an appreciation distribution pursuant to
this Section V shall not be available for subsequent option grant
under the Plan.
VI. LOANS OR INSTALLMENT PAYMENTS
The Plan Administrator may assist any Optionee (including
any officer) in the exercise of one or more outstanding options under
this Article Two, including the satisfaction of any Federal and state
income and employment tax obligations arising therefrom, by (a)
authorizing the extension of a loan to such Optionee from the
Corporation or (b) permitting the Optionee to pay the option price for
the purchased Common Stock in installments over a period of years. The
terms of any loan or installment method of payment(including the
interest rate and terms of repayment) will be established by the Plan
Administrator in its sole discretion. Loans and installment payments
may be granted with or without security or collateral (other than to
Optionees who are consultants or independent contractors, in which
event the loan must be adequately secured by collateral other than the
purchased shares), but the maximum credit available to the Optionee
shall not exceed the sum of (i) the aggregate option price (less par
value) of the purchased shares plus (ii) any Federal and state income
and employment tax liability incurred by the Optionee in connection
with the exercise of the option.
<PAGE>
ARTICLE THREE
MISCELLANEOUS
I. AMENDMENT OF THE PLAN
The Board shall have complete and exclusive power and
authority to amend or modify the Plan in any or all respects
whatsoever. However, no such amendment or modification shall, without
the consent of the holders, adversely affect rights and obligations
with respect to options at the time outstanding under the Plan. In
addition, the Board shall not, without the approval of the
Corporation's stockholders, (i) materially increase the maximum number
of shares issuable under the Plan, except for permissible adjustments
under Section V.C of Article One, (ii) materially modify the
eligibility requirements for the grant of options under the Plan or
(iii) otherwise materially increase the benefits accruing to
participants under the Plan.
II. TAX WITHHOLDING
A. The Corporation's obligation to deliver shares or cash
upon the exercise of stock options or stock appreciation rights
granted under the Plan shall be subject to the satisfaction of all
applicable Federal, state and local income and employment tax
withholding requirements.
B. The Plan Administrator may, in its discretion and upon
such terms and conditions as it may deem appropriate (including the
applicable safe-harbor provisions of Rule 16b-3 of the 1934 Act)
provide any or all holders of outstanding option grants under Article
Two with the election to have the Corporation withhold, from the
shares of Common Stock otherwise issuable upon the exercise of such
options, one or more of such shares with an aggregate Fair Market
Value equal to the designated percentage (any multiple of 5% specified
by the Optionee) of the Federal and state income and employment taxes
("Taxes") incurred in connection with the acquisition of such shares.
In lieu of such direct withholding, one or more Optionees may also be
granted the right to deliver shares of Common Stock to the Corporation
in satisfaction of such Taxes. The withheld or delivered shares shall
be valued at the Fair Market Value on the applicable determination
date for such Taxes or such other date required by the applicable
safe-harbor provisions of SEC Rule 16b-3.
<PAGE>
III. EFFECTIVE DATE AND TERM OF PLAN
A. This Plan, as successor to the Corporation's 1990 Plan,
became effective as of the January 16, 1994 Effective Date. The Plan
was subsequently amended on January 12, 1995 to increase the number of
shares of Common Stock issuable thereunder. No stock options granted
under the Plan shall become exercisable unless and until the Plan, as
amended, is approved by the stockholders on or before January 15,
1995, provided that options may be exercised as long as the shares are
held in escrow until stockholder approval is obtained for the Plan.
Should such stockholder approval not be obtained, then all stock
options granted and shares issued under this Plan shall terminate and
cease to remain outstanding, and no further stock option grants shall
be made under the Plan. Subject to the foregoing limitations, options
may be granted under this Plan at any time from and after the
Effective Date and before the date fixed herein for termination of
this Plan.
B. The provisions of the Plan shall apply only to options
granted under the Plan from and after the Effective Date. Except as
set forth below, each option issued and outstanding under the 1990
Plan immediately prior to the Effective Date shall be incorporated
into this Plan and treated as an outstanding option under this Plan,
but each such option shall continue to be governed solely by the terms
and conditions of the instrument evidencing such grant, and nothing in
this Plan shall be deemed to affect or otherwise modify the rights or
obligations of the holders of such options with respect to their
acquisition of shares of Common Stock thereunder or their exercise of
outstanding stock appreciation rights thereunder.
C. The option/vesting acceleration provisions of Section III
of Article Two relating to Corporation Transactions and Changes in
Control and stock appreciation right provisions of Section V may, in
the Plan Administrator's discretion, be extended to one or more stock
options or unvested share issuances which are outstanding under the
1990 Plan on the Effective Date but which do not otherwise provide for
such acceleration or appreciation right.
D. The sale and remittance procedure authorized for the
exercise of outstanding options shall be available for all options
granted under the Plan and for all non- statutory options outstanding
under the 1990 Plan on the
<PAGE>
Effective Date. The Plan Administrator may also allow such procedure
to be used in connection with one or more disqualifying dispositions
of Incentive Option shares effected after such date.
E. The Plan shall terminate upon the earlier of (i) January
15, 2004 or (ii) the date on which all shares available for issuance
under the Plan have been issued pursuant to the exercise of options
granted under Article Two. If the date of termination is determined
under clause (i) above, then no options outstanding on such date shall
be affected by the termination of the Plan, and such securities shall
thereafter continue to have force and effect in accordance with the
provisions of the instruments evidencing such options.
F. Options may be granted under this Plan to purchase shares
of Common Stock in excess of the number of shares then available for
issuance under the Plan, provided each option granted is not to become
exercisable, in whole or in part, at any time prior to stockholder
approval of an amendment authorizing a sufficient increase in the
number of shares issuable under the Plan.
IV. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale
of shares pursuant to options granted under the Plan shall be used for
general corporate purposes.
V. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any
option hereunder, and the issuance of stock upon the exercise or
surrender of any such option shall be subject to the procurement by
the Corporation of all approvals and permits required by regulatory
authorities having jurisdiction over the Plan, the options granted
under it and the stock issued pursuant to it.
B. No shares of Common Stock or other assets shall be issued
or delivered under the Plan unless and until there shall have been
compliance with all applicable requirements of Federal and state
securities laws, including the filing and effectiveness of a Form S-8
registration statement for the shares of Common Stock issuable under
the Plan, and all applicable listing requirements of any
<PAGE>
securities exchange on which stock of the same class is then listed.
VI. NO EMPLOYMENT/SERVICE RIGHTS
Neither the action of the Corporation in establishing the
Plan, nor any action taken by the Plan Administrator hereunder, nor
any provision of the Plan shall be construed so as to grant any
individual the right to remain in the employ or Service of the
Corporation (or any parent or subsidiary corporation) for any period
of specific duration, and the Corporation (or any parent or subsidiary
corporation retaining the services of such individual) may terminate
such individual's employment or Service at any time and for any
reason, with or without cause.
VII. MISCELLANEOUS PROVISIONS
A. The right to acquire Common Stock or other assets under
the Plan may not be assigned, encumbered or otherwise transferred by
any Optionee. The Optionee shall have full stockholder rights with
respect to any shares of Common Stock issued to him or her under the
Plan, whether or not his or her interest in those shares is vested. An
Optionee shall have no right to transfer any unvested shares of Common
Stock issued to him or her under the Plan. For purposes of this
restriction, the term "transfer" shall include (without limitation)
any sale, pledge, assignment, encumbrance, gift, or other disposition
of such shares, whether voluntary or involuntary. Upon any such
attempted transfer, the unvested shares shall immediately be
cancelled, and neither the Optionee nor the proposed transferee shall
have any rights with respect to those shares. However, the Optionee
shall have the right to make a gift of unvested shares acquired under
the Plan to his or her spouse or issue, including adopted children, or
to a trust established for such spouse or issue, provided the donee of
such shares delivers to the Corporation a written agreement to be
bound by all the provisions of the Plan and the purchase agreement
applicable to the gifted shares.
B. The provisions of the Plan shall be governed by the laws
of the state of Texas, as such laws are applied to contracts entered
into and performed in such state.
C. The provisions of the Plan shall inure to the benefit of,
and be binding upon, the Corporation and its
<PAGE>
successors or assigns, whether by Corporate Transaction or otherwise,
and the Optionees, the legal representatives of their respective
estates, their respective heirs or legatees and their permitted
assignees.
<PAGE>
EXHIBIT 23(a)
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.
March 4, 1996
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY OF LOUIS V. GERSTNER, JR.
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Chairman of the Board of Directors and Chief
Executive Officer of International Business Machines Corporation,
a New York corporation (the "Corporation"), which is to file with
the Securities and Exchange Commission (the "SEC") under the
provisions of the Securities Act of 1933 one or more Registration
Statements on Form S-8, or other appropriate Form, for shares of
capital stock of the Corporation or other interests issuable upon
the exercise or surrender of options assumed by the Corporation
that were issued by Tivoli Systems Inc., hereby constitute and
appoint Lawrence R. Ricciardi, G. Richard Thoman, James M. Alic,
John E. Hickey and Jeffrey D. Serkes, and each of them, my true
and lawful attorneys-in-fact and agents, with full power to act,
together or each without the others, for me and in my name, place
and stead, in any and all capacities, to sign, or cause to be
signed electronically, any and all of said Registration
Statements (which Registration Statements may constitute post-
effective amendments to registration statements previously filed
with the SEC) and any and all amendments to the aforementioned
Registration Statements and to file said Registration Statements
and amendments thereto so signed with all exhibits thereto, and
any and all other documents in connection therewith, with the
SEC, hereby granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform any and
all acts and things requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as I
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/LOUIS V. GERSTNER, JR.
---------------------------
Louis V. Gerstner, Jr.
Chairman of the Board of
Directors and Chief
Executive Officer
<PAGE>
POWER OF ATTORNEY OF JAMES M. ALIC
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Vice President and Controller of International
Business Machines Corporation, a New York corporation (the
"Corporation"), which is to file with the Securities and Exchange
Commission (the "SEC") under the provisions of the Securities Act
of 1933 one or more Registration Statements on Form S-8, or other
appropriate Form, for shares of capital stock of the Corporation
or other interests issuable upon the exercise or surrender of
options assumed by the Corporation that were issued by Tivoli
Systems Inc., hereby constitute and appoint Lawrence R.
Ricciardi, G. Richard Thoman, John E. Hickey and Jeffrey D.
Serkes, and each of them, my true and lawful attorneys-in-fact
and agents, with full power to act, together or each without the
others, for me and in my name, place and stead, in any and all
capacities, to sign, or cause to be signed electronically, any
and all of said Registration Statements (which Registration
Statements may constitute post-effective amendments to
registration statements previously filed with the SEC) and any
and all amendments to the aforementioned Registration Statements
and to file said Registration Statements and amendments thereto
so signed with all exhibits thereto, and any and all other
documents in connection therewith, with the SEC, hereby granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform any and all acts and things
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as I might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/JAMES M. ALIC
---------------------------
James M. Alic
Vice President and
Controller
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Director of International Business Machines
Corporation, a New York corporation (the "Corporation"), which is
to file with the Securities and Exchange Commission (the "SEC")
under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-8, or other appropriate Form,
for shares of capital stock of the Corporation or other interests
issuable upon the exercise or surrender of options assumed by the
Corporation that were issued by Tivoli Systems Inc., hereby
constitute and appoint Lawrence R. Ricciardi, G. Richard Thoman,
James M. Alic, John E. Hickey and Jeffrey D. Serkes, and each of
them, my true and lawful attorneys-in-fact and agents, with full
power to act, together or each without the others, for me and in
my name, place and stead, in any and all capacities, to sign, or
cause to be signed electronically, any and all of said
Registration Statements (which Registration Statements may
constitute post-effective amendments to registration statements
previously filed with the SEC) and any and all amendments to the
aforementioned Registration Statements and to file said
Registration Statements and amendments thereto so signed with all
exhibits thereto, and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/CATHLEEN BLACK
---------------------------
Director
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Director of International Business Machines
Corporation, a New York corporation (the "Corporation"), which is
to file with the Securities and Exchange Commission (the "SEC")
under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-8, or other appropriate Form,
for shares of capital stock of the Corporation or other interests
issuable upon the exercise or surrender of options assumed by the
Corporation that were issued by Tivoli Systems Inc., hereby
constitute and appoint Lawrence R. Ricciardi, G. Richard Thoman,
James M. Alic, John E. Hickey and Jeffrey D. Serkes, and each of
them, my true and lawful attorneys-in-fact and agents, with full
power to act, together or each without the others, for me and in
my name, place and stead, in any and all capacities, to sign, or
cause to be signed electronically, any and all of said
Registration Statements (which Registration Statements may
constitute post-effective amendments to registration statements
previously filed with the SEC) and any and all amendments to the
aforementioned Registration Statements and to file said
Registration Statements and amendments thereto so signed with all
exhibits thereto, and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/HAROLD BROWN
---------------------------
Director
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Director of International Business Machines
Corporation, a New York corporation (the "Corporation"), which is
to file with the Securities and Exchange Commission (the "SEC")
under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-8, or other appropriate Form,
for shares of capital stock of the Corporation or other interests
issuable upon the exercise or surrender of options assumed by the
Corporation that were issued by Tivoli Systems Inc., hereby
constitute and appoint Lawrence R. Ricciardi, G. Richard Thoman,
James M. Alic, John E. Hickey and Jeffrey D. Serkes, and each of
them, my true and lawful attorneys-in-fact and agents, with full
power to act, together or each without the others, for me and in
my name, place and stead, in any and all capacities, to sign, or
cause to be signed electronically, any and all of said
Registration Statements (which Registration Statements may
constitute post-effective amendments to registration statements
previously filed with the SEC) and any and all amendments to the
aforementioned Registration Statements and to file said
Registration Statements and amendments thereto so signed with all
exhibits thereto, and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/JUERGEN DORMANN
---------------------------
Director
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Director of International Business Machines
Corporation, a New York corporation (the "Corporation"), which is
to file with the Securities and Exchange Commission (the "SEC")
under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-8, or other appropriate Form,
for shares of capital stock of the Corporation or other interests
issuable upon the exercise or surrender of options assumed by the
Corporation that were issued by Tivoli Systems Inc., hereby
constitute and appoint Lawrence R. Ricciardi, G. Richard Thoman,
James M. Alic, John E. Hickey and Jeffrey D. Serkes, and each of
them, my true and lawful attorneys-in-fact and agents, with full
power to act, together or each without the others, for me and in
my name, place and stead, in any and all capacities, to sign, or
cause to be signed electronically, any and all of said
Registration Statements (which Registration Statements may
constitute post-effective amendments to registration statements
previously filed with the SEC) and any and all amendments to the
aforementioned Registration Statements and to file said
Registration Statements and amendments thereto so signed with all
exhibits thereto, and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/NANNERL O. KEOHANE
---------------------------
Director
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Director of International Business Machines
Corporation, a New York corporation (the "Corporation"), which is
to file with the Securities and Exchange Commission (the "SEC")
under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-8, or other appropriate Form,
for shares of capital stock of the Corporation or other interests
issuable upon the exercise or surrender of options assumed by the
Corporation that were issued by Tivoli Systems Inc., hereby
constitute and appoint Lawrence R. Ricciardi, G. Richard Thoman,
James M. Alic, John E. Hickey and Jeffrey D. Serkes, and each of
them, my true and lawful attorneys-in-fact and agents, with full
power to act, together or each without the others, for me and in
my name, place and stead, in any and all capacities, to sign, or
cause to be signed electronically, any and all of said
Registration Statements (which Registration Statements may
constitute post-effective amendments to registration statements
previously filed with the SEC) and any and all amendments to the
aforementioned Registration Statements and to file said
Registration Statements and amendments thereto so signed with all
exhibits thereto, and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/CHARLES F. KNIGHT
---------------------------
Director
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Director of International Business Machines
Corporation, a New York corporation (the "Corporation"), which is
to file with the Securities and Exchange Commission (the "SEC")
under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-8, or other appropriate Form,
for shares of capital stock of the Corporation or other interests
issuable upon the exercise or surrender of options assumed by the
Corporation that were issued by Tivoli Systems Inc., hereby
constitute and appoint Lawrence R. Ricciardi, G. Richard Thoman,
James M. Alic, John E. Hickey and Jeffrey D. Serkes, and each of
them, my true and lawful attorneys-in-fact and agents, with full
power to act, together or each without the others, for me and in
my name, place and stead, in any and all capacities, to sign, or
cause to be signed electronically, any and all of said
Registration Statements (which Registration Statements may
constitute post-effective amendments to registration statements
previously filed with the SEC) and any and all amendments to the
aforementioned Registration Statements and to file said
Registration Statements and amendments thereto so signed with all
exhibits thereto, and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/LUCIO A. NOTO
---------------------------
Director
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Director of International Business Machines
Corporation, a New York corporation (the "Corporation"), which is
to file with the Securities and Exchange Commission (the "SEC")
under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-8, or other appropriate Form,
for shares of capital stock of the Corporation or other interests
issuable upon the exercise or surrender of options assumed by the
Corporation that were issued by Tivoli Systems Inc., hereby
constitute and appoint Lawrence R. Ricciardi, G. Richard Thoman,
James M. Alic, John E. Hickey and Jeffrey D. Serkes, and each of
them, my true and lawful attorneys-in-fact and agents, with full
power to act, together or each without the others, for me and in
my name, place and stead, in any and all capacities, to sign, or
cause to be signed electronically, any and all of said
Registration Statements (which Registration Statements may
constitute post-effective amendments to registration statements
previously filed with the SEC) and any and all amendments to the
aforementioned Registration Statements and to file said
Registration Statements and amendments thereto so signed with all
exhibits thereto, and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/JOHN B. SLAUGHTER
---------------------------
Director
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Director of International Business Machines
Corporation, a New York corporation (the "Corporation"), which is
to file with the Securities and Exchange Commission (the "SEC")
under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-8, or other appropriate Form,
for shares of capital stock of the Corporation or other interests
issuable upon the exercise or surrender of options assumed by the
Corporation that were issued by Tivoli Systems Inc., hereby
constitute and appoint Lawrence R. Ricciardi, G. Richard Thoman,
James M. Alic, John E. Hickey and Jeffrey D. Serkes, and each of
them, my true and lawful attorneys-in-fact and agents, with full
power to act, together or each without the others, for me and in
my name, place and stead, in any and all capacities, to sign, or
cause to be signed electronically, any and all of said
Registration Statements (which Registration Statements may
constitute post-effective amendments to registration statements
previously filed with the SEC) and any and all amendments to the
aforementioned Registration Statements and to file said
Registration Statements and amendments thereto so signed with all
exhibits thereto, and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/ALEX TROTMAN
---------------------------
Director
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the
undersigned Director of International Business Machines
Corporation, a New York corporation (the "Corporation"), which is
to file with the Securities and Exchange Commission (the "SEC")
under the provisions of the Securities Act of 1933 one or more
Registration Statements on Form S-8, or other appropriate Form,
for shares of capital stock of the Corporation or other interests
issuable upon the exercise or surrender of options assumed by the
Corporation that were issued by Tivoli Systems Inc., hereby
constitute and appoint Lawrence R. Ricciardi, G. Richard Thoman,
James M. Alic, John E. Hickey and Jeffrey D. Serkes, and each of
them, my true and lawful attorneys-in-fact and agents, with full
power to act, together or each without the others, for me and in
my name, place and stead, in any and all capacities, to sign, or
cause to be signed electronically, any and all of said
Registration Statements (which Registration Statements may
constitute post-effective amendments to registration statements
previously filed with the SEC) and any and all amendments to the
aforementioned Registration Statements and to file said
Registration Statements and amendments thereto so signed with all
exhibits thereto, and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed
this Power of Attorney as of this 30th day of January, 1996.
/s/CHARLES M. VEST
---------------------------
Director
