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
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Armonk, New York 10504
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(Address of Principal Executive (Zip Code)
Offices)
IBM 1997 Long-Term Performance Plan
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(Full title of the plan)
John E. Hickey, Vice President and Secretary
International Business Machines Corporation
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 Amount
Title of maximum maximum of
securities Amount offering aggregate registration
to be to be price per offering fee:
registered: registered(1): share(2): price(2):
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IBM Capital 50,296,454 $96.50 $4,853,607,811 $1,470,791
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Stock, par value
$.50 per share
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(1) Reflects a two-for-one stock split of May 9, 1997.
(2) Estimated solely for the purpose of determining the registration fee.
Pursuant to Rule 457(h) and 457(c), the proposed maximum offering price per
share and the registration fee are based on the average of the high and low
prices for IBM Capital Stock, par value $.50 per share, on the New York Stock
Exchange on July 11, 1997.
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<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference herein and shall be deemed
a part hereof:
(a) The Annual Report of International Business Machines
Corporation ("IBM") on Form 10-K for the fiscal year ended December 31,
1996, filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act").
(b) All other reports filed by IBM pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1996.
(c) The description of IBM's Capital Stock, par value $.50 per
share, contained in IBM's Registration Statement No. 333-21073, as
filed with the Securities and Exchange Commission on February 4, 1997,
including any amendments or reports filed for purposes of updating such
description.
All documents filed by IBM pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act, after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
David S. Hershberg, Vice President and Assistant General Counsel of IBM, who has
passed upon the legality of the shares of Capital Stock, par value $.50 per
share, offered under the Plan, is eligible for participation in the Plan.
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
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time, indemnify any person made, or threatened to be made, a party to an action
or proceeding whether civil or criminal (including an action or proceeding by or
in the right of the Corporation or any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, for which any director or officer of the Corporation
served in any capacity at the request of the Corporation), by reason of the fact
that such person or such person's testator or intestate was a director or
officer of the Corporation, or served such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, amounts paid in settlement and reasonable expenses,
including attorneys' fees actually and necessarily incurred as a result of such
action or proceeding, or any appeal therein. Such indemnification shall be a
contract right and shall include the right to be paid advances of any expenses
incurred by such person in connection with such action, suit or proceeding,
consistent with the provisions of applicable law in effect at any time.
Indemnification shall be deemed to be 'permitted' within the meaning of the
first sentence hereof if it is not expressly prohibited by applicable law as in
effect at any time."
The Certificate of Incorporation of IBM (Article ELEVEN) provides the following:
"Pursuant to Section 402(b) of the Business Corporation Law of the
State of New York, the liability of the Corporation's directors to the
Corporation or its stockholders for damages for breach of duty as a director
shall be eliminated to the fullest extent permitted by the Business Corporation
Law of the State of New York, as it exists on the date hereof or as it may
hereafter be amended. No amendment to or repeal of this Article shall apply to
or have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal."
With certain limitations, Sections 721 through 726 of the New York Business
Corporation Law permit a corporation to indemnify a director or officer made a
party to an action (i) by a corporation or in its right in order to procure a
judgment in its favor unless he shall have breached his duties, or (ii) other
than an action by or in the right of the corporation in order to procure a
judgment in its favor, if such director or officer acted in good faith and in a
manner he reasonably believed to be in or, in certain cases not opposed to such
corporation's interest and additionally, in criminal actions, had no reasonable
cause to believe his conduct was unlawful.
In addition, IBM maintains directors' and officers' liability insurance
policies.
Item 8. Exhibits.
Exhibit Number Description
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5 The opinion, dated July 14, 1997, of David S.
Hershberg, Vice President and Assistant General
Counsel of IBM
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23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 Powers of attorney
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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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 the 14th day of
July 1997.
INTERNATIONAL BUSINESS MACHINES CORPORATION
By
/s/ JOHN E. HICKEY
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(John E. Hickey, Vice President and Secretary)
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities indicated
on the 14th day of July 1997.
Signature Title
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*
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Louis V. Gerstner, Jr. Chairman of the Board
of Directors and Chief
Executive Officer
(Principal Executive
Officer)
/s/ Lawrence R. Ricciardi
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Lawrence R. Ricciardi Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
*
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John R. Joyce Controller
(Principal Accounting Officer)
*
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Cathleen Black Director
*
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Harold Brown Director
*
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Juergen Dormann Director
*
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Nannerl O. Keohane Director
*
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Charles F. Knight Director
*
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Lucio A. Noto Director
*
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John B. Slaughter Director
*
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Alex Trotman Director
*
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Charles M. Vest Director
* By: /s/ John E. Hickey
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John E. Hickey
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EXHIBIT INDEX
EXHIBIT NO.
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5 Opinion of David S. Hershberg, Vice President and
Assistant General Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 Powers of Attorney
EXHIBIT 5
July 14, 1997
International Business Machines Corporation
Old Orchard Road
Armonk, NY 10504
Ladies and Gentlemen:
I am Vice President and Assistant General Counsel of International Business
Machines Corporation (herein called the "Corporation") and an attorney duly
admitted to practice in the State of New York. I am familiar with the
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933 (the "Securities Act") regarding 50,296,454 shares of
Capital Stock, par value $.50 per share, of IBM (the "Shares") to be issued
pursuant to the IBM 1997 Long-Term Performance Plan (the "Plan").
I have reviewed such documents and records as I have deemed necessary or
appropriate to enable me to express an informed opinion with respect to the
matters covered hereby.
Based upon the foregoing, I am of the opinion that when issued or sold in
accordance with the terms of the Plan the Shares will be validly issued, fully
paid and nonassessable.
I hereby consent to the use of my name in the Registration Statement as counsel
who has passed upon the legality of the Shares, and to the use of this opinion
as part of the Registration Statement as required by Section 7 of the Securities
Act.
Very truly yours,
/s/ David S. Hershberg
--------------------------------------------
David S. Hershberg
Vice President and Assistant General Counsel
EXHIBIT 23.1
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, 1997 appearing on page 43
of the 1996 Annual Report to Stockholders of International Business Machines
Corporation, which is incorporated by reference in International Business
Machines Corporation's Annual Report on Form 10-K for the year ended December
31, 1996. Furthermore, we consent to the incorporation by reference of our
report on the Financial Statement Schedule which appears on page 8 of such
Annual Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
------------------------
PRICE WATERHOUSE LLP
New York, N.Y.
July 14, 1997
Exhibit 24
POWER OF ATTORNEY OF LOUIS V. GERSTNER, JR.
KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned
Chairman of the Board 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"),
Washington, D.C., under the provisions of the Securities Act of 1933 one or
more Registration Statements on Form S-8, or other appropriate Form, for up
to 25,148,227 shares of capital stock of the Corporation or other interests
issuable under the IBM 1997 Long-Term Performance Plan, as such number may
be adjusted to reflect the proposed stock split, hereby constitute and
appoint G. Richard Thoman, Lawrence R. Ricciardi, Jeffrey D. Serkes, John
R. Joyce, and John E. Hickey, 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 25th day of February 1997.
/s/ Louis V. Gerstner, Jr.
--------------------------
Louis V. Gerstner, Jr.
Chairman of the Board and
Chief Executive Officer
<PAGE>
Exhibit 24
POWER OF ATTORNEY OF JOHN R. JOYCE
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"), Washington, D.C.,
under the provisions of the Securities Act of 1933 one or more Registration
Statements on Form S-8, or other appropriate Form, for up to 25,148,227
shares of capital stock of the Corporation or other interests issuable
under the IBM 1997 Long-Term Performance Plan, as such number may be
adjusted to reflect the proposed stock split, hereby constitute and appoint
Louis V. Gerstner, Jr., G. Richard Thoman, Lawrence R. Ricciardi, Jeffrey
D. Serkes, and John E. Hickey, 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 25th day of February 1997.
/s/ John R. Joyce
----------------------------
John R. Joyce
Vice President and Controller
<PAGE>
Exhibit 24
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"), Washington, D.C., under the provisions of
the Securities Act of 1933 one or more Registration Statements on Form S-8,
or other appropriate Form, for up to 25,148,227 shares of capital stock of
the Corporation or other interests issuable under the IBM 1997 Long-Term
Performance Plan, as such number may be adjusted to reflect the proposed
stock split, hereby constitute and appoint Louis V. Gerstner, Jr., G.
Richard Thoman, Lawrence R. Ricciardi, Jeffrey D. Serkes, John R. Joyce,
and John E. Hickey, 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 25th day of February 1997.
/s/ Cathleen Black
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Cathleen Black
/s/ Harold Brown
-------------------------
Harold Brown
/s/ Juergen Dormann
-------------------------
Juergen Dormann
/s/ Nannerl O. Keohane
-------------------------
Nannerl O. Keohane
/s/ Charles F. Knight
-------------------------
Charles F. Knight
/s/ Lucio A. Noto
-------------------------
Lucio A. Noto
/s/ John B. Slaughter
-------------------------
John B. Slaughter
/s/ Alex Trotman
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Alex Trotman
/s/ Charles M. Vest
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Charles M. Vest
