UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
F O R M 1 0 - Q
QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTER ENDED SEPTEMBER 30, 1998
1-2360
----------------------
(Commission file number)
INTERNATIONAL BUSINESS MACHINES CORPORATION
----------------------------------------------------
(Exact name of registrant as specified in its charter)
New York 13-0871985
---------------------- ----------------------------------
(State of incorporation) (IRS employer identification number)
Armonk, New York 10504
-------------------------------------- --------
(Address of principal executive offices) (Zip Code)
914-499-1900
-----------------------------
(Registrant's telephone number)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section l3 or l5(d) of the Securities Exchange Act of
1934 during the preceding l2 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES |X| NO |_|
The registrant has 922,851,792 shares of common stock outstanding at
September 30, 1998.
<PAGE>
INDEX
Page
----
Part I - Financial Information:
Item 1. Consolidated Financial Statements
Consolidated Statement of Earnings for the three and nine
months ended September 30, 1998 and 1997 ..................... 1
Consolidated Statement of Financial Position at
September 30, 1998 and December 31, 1997 ..................... 3
Consolidated Statement of Cash Flows for the nine months
ended September 30, 1998 and 1997 ............................ 5
Notes to Consolidated Financial Statements ..................... 6
Item 2. Management's Discussion and Analysis of
Results of Operations and Financial Condition ........... 6
Part II - Other Information .......................................... 16
<PAGE>
ITEM 1. INTERNATIONAL BUSINESS MACHINES CORPORATION
AND SUBSIDIARY COMPANIES
CONSOLIDATED STATEMENT OF EARNINGS
(UNAUDITED)
(Dollars in millions except Three Months Ended Nine Months Ended
per share amounts) September 30 September 30
------------------- --------------------
1998 1997 1998 1997
-------- -------- -------- --------
Revenue:
Hardware sales $ 8,700 $ 8,345 $ 23,343 $ 24,722
Services 5,771 4,709 16,382 13,416
Software 3,175 3,039 9,421 9,073
Maintenance 1,449 1,574 4,405 4,809
Rentals and financing 1,000 938 2,985 2,765
-------- -------- -------- --------
Total revenue 20,095 18,605 56,536 54,785
Cost:
Hardware sales 5,936 5,523 16,279 16,326
Services 4,541 3,756 12,871 10,717
Software 805 904 2,330 2,723
Maintenance 770 838 2,293 2,564
Rentals and financing 576 486 1,700 1,364
-------- -------- -------- --------
Total cost 12,628 11,507 35,473 33,694
-------- -------- -------- --------
Gross profit 7,467 7,098 21,063 21,091
Operating expenses:
Selling, general and 4,057 3,932 11,588 11,574
administrative
Research, development and
engineering 1,240 1,162 3,639 3,452
-------- -------- -------- --------
Total operating expenses 5,297 5,094 15,227 15,026
Operating income 2,170 2,004 5,836 6,065
Other income, principally interest 122 162 402 484
Interest expense 160 183 500 534
-------- -------- -------- --------
Earnings before income taxes 2,132 1,983 5,738 6,015
Income tax provision 638 624 1,756 2,015
-------- -------- -------- --------
Net earnings 1,494 1,359 3,982 4,000
Preferred stock dividends 5 5 15 15
-------- -------- -------- --------
Net earnings applicable to
common shareholders $ 1,489 $ 1,354 $ 3,967 $ 3,985
======== ======== ======== ========
-1-
<PAGE>
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND SUBSIDIARY COMPANIES
CONSOLIDATED STATEMENT OF EARNINGS - (continued)
(UNAUDITED)
Three Months Ended Nine Months Ended
September 30 September 30
------------------- --------------------
1998 1997 1998 1997
------------------- --------------------
Net earnings per share of
common stock - basic $ 1.60 $ 1.38 $ 4.22 $ 4.03
Net earnings per share of
common stock - assuming dilution $ 1.56 $ 1.35 $ 4.11 $ 3.91
Average number of common
shares outstanding: (millions)
Basic 928.4 978.0 939.4 989.4
Diluted 954.5 1,005.2 965.5 1,019.2
Cash dividends per common share $ .22 $ .20 $ .64 $ .575
(The accompanying notes are an integral part of the financial statements.)
-2-
<PAGE>
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND SUBSIDIARY COMPANIES
CONSOLIDATED STATEMENT OF FINANCIAL POSITION
(UNAUDITED)
ASSETS
<TABLE>
<CAPTION>
At September 30 At December 31
(Dollars in millions) 1998 1997*
--------------- --------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 5,553 $ 7,106
Marketable securities - at cost, which
approximates market 316 447
Notes and accounts receivable -
net of allowances 17,682 18,106
Sales-type leases receivable 5,869 5,720
Inventories, at lower of average cost or market
Finished goods 1,194 1,090
Work in process and raw materials 4,354 4,049
-------- --------
Total inventories 5,548 5,139
Prepaid expenses and other current assets 3,834 3,900
-------- --------
Total current assets 38,802 40,418
Plant, rental machines and other property 43,781 42,133
Less: Accumulated depreciation 24,776 23,786
-------- --------
Plant, rental machines and other property - net 19,005 18,347
Software, less accumulated
amortization (1998, $12,799; 1997, $12,610) 645 819
Investments and sundry assets 21,267 21,915
-------- --------
Total assets $ 79,719 $ 81,499
======== ========
</TABLE>
* Reclassified to conform to 1998 presentation.
(The accompanying notes are an integral part of the financial statements.)
-3-
<PAGE>
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND SUBSIDIARY COMPANIES
CONSOLIDATED STATEMENT OF FINANCIAL POSITION - (CONTINUED)
(UNAUDITED)
LIABILITIES AND STOCKHOLDERS' EQUITY
(Dollars in millions except At September 30 At December 31
per share amounts) 1998 1997*
--------------- --------------
Current liabilities:
Taxes $ 1,790 $ 2,381
Accounts payable and accruals 16,485 17,896
Short-term debt 13,237 13,230
-------- --------
Total current liabilities 31,512 33,507
Long-term debt 15,239 13,696
Other liabilities 12,889 12,993
Deferred income taxes 1,444 1,487
-------- --------
Total liabilities 61,084 61,683
Stockholders' equity:
Preferred stock - par value $.01 per share 252 252
Shares authorized: 150,000,000
Shares issued: 1998 - 2,597,261
1997 - 2,597,261
Common stock - par value $.50 per share 9,804 8,601
Shares authorized: 1,875,000,000
Shares issued: 1998 - 980,187,836
1997 - 969,015,351
Retained earnings 14,306 11,010
Treasury stock - at cost (5,778) (86)
Shares: 1998 - 47,336,044
1997 - 923,955
Employee benefits trust - at cost (860) (860)
Shares: 1998 - 10,000,000
1997 - 10,000,000
Gains and losses not affecting
retained earnings 911 899
-------- --------
Total stockholders' equity 18,635 19,816
-------- --------
Total liabilities and stockholders' equity $ 79,719 $ 81,499
======== ========
* Reclassified to conform to 1998 presentation.
(The accompanying notes are an integral part of the financial statements.)
-4-
<PAGE>
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND SUBSIDIARY COMPANIES
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30:
(UNAUDITED)
(Dollars in millions) 1998 1997
-------- -------
Cash flow from operating activities:
Net earnings $ 3,982 $ 4,000
Adjustments to reconcile net earnings to cash
provided from operating activities:
Effect of restructuring charges (257) (317)
Depreciation 3,246 2,818
Amortization of software 401 768
Gain on disposition of fixed and other assets (156) (163)
Changes in operating assets and liabilities (675) (2,015)
-------- -------
Net cash provided from operating activities 6,541 5,091
-------- -------
Cash flow from investing activities:
Payments for plant, rental machines
and other property, net of proceeds (3,975) (3,875)
Investment in software (180) (227)
Purchases of marketable securities and
other investments (1,532) (1,244)
Proceeds from marketable securities and
other investments 1,201 910
-------- -------
Net cash used in investment
activities (4,486) (4,436)
-------- -------
Cash flow from financing activities:
Proceeds from new debt 6,049 6,969
Payments to settle debt (4,053) (2,920)
Short-term borrowings less
than 90 days - net (246) (1,274)
Common stock transactions - net (4,830) (4,476)
Cash dividends paid (623) (584)
-------- -------
Net cash used in financing activities (3,703) (2,285)
-------- -------
Effect of exchange rate changes
on cash and cash equivalents 95 (131)
-------- -------
Net change in cash and cash equivalents (1,553) (1,761)
Cash and cash equivalents at January 1 7,106 7,687
-------- -------
Cash and cash equivalents at September 30 $ 5,553 $ 5,926
======== =======
(The accompanying notes are an integral part of the financial statements.)
-5-
<PAGE>
Notes to Consolidated Financial Statements
1. In the opinion of the management of International Business Machines
Corporation (the company), all adjustments necessary to a fair statement of the
results for the unaudited three and nine month periods have been made.
2. The gains and losses not affecting retained earnings line of stockholders'
equity is comprised of foreign currency translation adjustments and unrealized
gains and losses on marketable securities. Net earnings and gains and losses not
affecting retained earnings amounted to $1,704 million and $999 million for the
three month periods ended September 30, 1998 and 1997, respectively. The amounts
for the nine month periods ended September 30, 1998 and 1997 were $3,994 million
and $2,835 million, respectively.
3. In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards 133, "Accounting for Derivative Instruments and
Hedging Activities." This statement establishes accounting and reporting
standards for derivative instruments. It requires an entity to recognize all
derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. This statement is
effective for fiscal years beginning after June 15, 1999, although early
adoption is permitted. Management is in the process of determining the impacts
to the company's financial statements as a result of the adoption of this
standard.
4. Subsequent Event: On October 27, 1998, the Board of Directors authorized the
company to repurchase up to an additional $3.5 billion of IBM common stock
shares. The company plans to buy shares on the open market from time-to-time,
depending on market conditions.
ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1998
The company's third-quarter results indicate that its business has
accelerated significantly during the third quarter with strong revenue and
earnings growth across nearly all parts of its product line. There was revenue
growth across all server products, ongoing strength in services and software
businesses, good improvement in the personal computer unit and strong
performance in Europe and North America. The company continued to invest for
long-term growth through the implementation of new technologies like silicon
germanium and silicon on insulator that yield faster micro processor speeds at
lower costs and power requirements, and investments in capital expenditures for
strategic outsourcing and hard disk drive capacity. The company increased some
expenses to extend its leadership in e-business and its presence in important
software segments like system management, data management and data mining. At
the same time, the company's business was affected by continued weakness in
Asia/Pacific and Latin America, and its semiconductor business continued to be
impacted by a prolonged, industry-wide downturn in memory chip prices. The
company is exploring various alternatives to mitigate the impacts of this
downturn. These alternatives include among other actions, realigning alliance
structures, rebalancing sources of supply and redirecting product focus.
-6-
<PAGE>
While the company has momentum going into the fourth quarter, there are a
number of significant short-term challenges facing the company, including an
uncertain global economic environment, ongoing weakness in some parts of Asia
and Latin America, and continued price pressure in semiconductors. Over the
longer term, the company believes it is well positioned to meet its customers
demand for integrated products and services to solve their business needs. The
company is maintaining its focus on cost, expense, improving the competitiveness
of its products and delivering consistent financial results.
Results of Operations
(Dollars in millions Three Months Ended Nine Months Ended
except per share amounts) September 30 September 30
------------------- -------------------
1998 1997 1998 1997
-------- -------- -------- --------
Revenue $ 20,095 $ 18,605 $ 56,536 $ 54,785
Cost 12,628 11,507 35,473 33,694
-------- -------- -------- --------
Gross profit $ 7,467 $ 7,098 $ 21,063 $ 21,091
Gross profit margin 37.2% 38.2% 37.3% 38.5%
Net earnings $ 1,494 $ 1,359 $ 3,982 $ 4,000
Net earnings per diluted
common share $ 1.56 $ 1.35 $ 4.11 $ 3.91
As a result of the company's share repurchase program, the average number
of common shares outstanding were lower by 49.6 million to 928.4 million shares
in the third quarter and by 50.0 million to 939.4 million shares on a nine
months basis versus comparable periods in 1997.
Revenue for the three months ended September 30, 1998 increased 8.0
percent as reported and about 11 percent on a constant currency basis. Services
revenue growth remained strong while software continued to display improved year
to year growth dynamics. Hardware sales increased as a result of strong
acceptance of the new G5 models of System/390 and improved performance of
personal computers. These improvements were partially offset by falling revenue
from semiconductors, which will continue. For the nine months ended September
30, 1998, revenue increased 3.2 percent as reported and approximately 7 percent
on a constant currency basis versus last year. The increase was primarily due to
strong growth in services and higher revenue from software offerings, partially
offset by lower hardware sales revenue from personal computers.
On an as-reported basis, third-quarter revenue in the United States was
$9.2 billion, an increase of 15.1 percent from the same period of 1997. Revenue
from Europe/Middle East/Africa (EMEA) grew 16.4 percent to $6.1 billion and
revenue from Canada increased 9.2 percent to $821 million. Asia-Pacific revenue
was $3.2 billion, a decline of 15.6 percent. Revenue from Latin America totaled
$840 million, a decrease of 5.8 percent compared with the third quarter of 1997.
-7-
<PAGE>
Results of Operations - (continued)
Excluding the effects of currency translation, Asia-Pacific declined 2
percent, EMEA revenue grew 15 percent, Canada increased 19 percent and Latin
America declined 3 percent, versus third-quarter 1997.
The overall gross profit margin for the three months ended September 30,
1998 was 37.2 percent or 1.0 point lower than the comparable period last year.
The decline on a year-to-year basis is consistent with the first half of 1998
and continues to reflect the changing mix of the company's businesses which
tends to lower the overall gross profit margin. For the nine months ended
September 30, 1998, overall gross profit margin of 37.3 percent was down 1.2
points versus last year.
Total expenses increased 4.3 percent compared with last year's third
quarter. The company's expense-to-revenue ratio improved 1.0 point versus last
year.
The company's tax rate was 30.0 percent in the third quarter compared with
31.5 percent in the year-earlier period as the company continued to benefit from
increased profit generation in markets with lower effective tax rates.
Hardware Sales
(Dollars in millions) Three Months Ended Nine Months Ended
September 30 September 30
------------------- -------------------
1998 1997 1998 1997
-------- -------- -------- --------
Total revenue $ 8,700 $ 8,345 $ 23,343 $ 24,722
Total cost 5,936 5,523 16,279 16,326
-------- -------- -------- --------
Gross profit $ 2,764 $ 2,822 $ 7,064 $ 8,396
Gross profit margin 31.8% 33.8% 30.3% 34.0%
Revenue from hardware sales increased 4.2 percent and declined 5.6 percent
for the third quarter and first nine months of 1998, respectively, when compared
to the same periods in 1997. The third-quarter and first-nine months results
were negatively affected by approximately 2 and 3 percentage points,
respectively, from currency in 1998.
The hardware sales revenue increase was due to the strong performance of
the new G5 model of the System/390. MIPS (millions of instructions per second)
more than doubled over the third quarter of last year and revenue grew by double
digits despite weakness in Asia. In addition, AS/400 and RS/6000 server revenue
grew year over year, as the new Northstar PowerPC chip was introduced into both
platforms for improved performance. Personal computer revenue showed strong
growth versus the first and second quarters of 1998 and was flat when compared
to the third quarter of 1997. AS/400 revenue increased and personal computers,
RS/6000 and System/390 revenue decreased on a nine months basis when compared to
the same period of last year.
-8-
<PAGE>
Results of Operations - (continued)
Revenue from storage products increased on both a third-quarter and nine
months basis when compared with the year-earlier periods, due primarily to
strong sales of hard disk drives, partially offset by lower revenue for high-end
storage systems, which experienced a significant decline in Asia.
Semiconductor revenue declined in the third quarter and increased slightly
for the first nine months of 1998, when compared to the same periods in 1997.
The decline in the third quarter was primarily due to lower DRAM prices and an
Asian-related slow down in demand for ASICS products. The company expects this
trend to continue for the short term.
Hardware sales gross profit for the third quarter and first nine months of
1998 decreased 2.1 percent and 15.9 percent, respectively, from comparable
periods in 1997. The hardware gross profit margin decreased 2.0 points and 3.7
points, respectively, from the prior year. These decreases were primarily driven
by pricing pressures associated with personal computers, hard disk drive and
memory chip prices when compared to the same periods in 1997. These declines
were partially offset by improved margins for AS/400 and the mix of revenue to
more System/390 products which have a higher margin. In the third quarter of
1998 the personal computer margins improved over the same period in 1997.
Services Other Than Maintenance
(Dollars in millions) Three Months Ended Nine Months Ended
September 30 September 30
------------------- -------------------
1998 1997 1998 1997
-------- -------- -------- --------
Total revenue $ 5,771 $ 4,709 $ 16,382 $ 13,416
Total cost 4,541 3,756 12,871 10,717
-------- -------- -------- --------
Gross profit $ 1,230 $ 953 $ 3,511 $ 2,699
Gross profit margin 21.3% 20.3% 21.4% 20.1%
Services revenue increased 22.6 percent and 22.1 percent, respectively, in
the third quarter and first nine months of 1998, versus the same periods in
1997. On a constant currency basis, revenue was negatively affected by
approximately 3 and 4 percentage points, respectively, in the third quarter and
first nine months of 1998. The revenue increases were driven by continued strong
growth in all categories of service offerings. In the third quarter, new
contract signings amounted to $10.0 billion. Most of these contracts are for
strategic outsourcing agreements and involve a full spectrum of the company's
services and product offerings.
Services gross profit dollars increased in the third quarter and first
nine months of 1998 by 29.1 percent and 30.0 percent, respectively, when
compared to year-ago periods. The positive gross profit margin trend seen in the
first half of the year continued in the third quarter as margin improved 1.0
point versus last year due to improved utilization rates and contract
management, primarily in the United States.
-9-
<PAGE>
Results of Operations - (continued)
Software
(Dollars in millions) Three Months Ended Nine Months Ended
September 30 September 30
------------------- -------------------
1998 1997 1998 1997
-------- -------- -------- --------
Total revenue $ 3,175 $ 3,039 $ 9,421 $ 9,073
Total cost 805 904 2,330 2,723
-------- -------- -------- --------
Gross profit $ 2,370 $ 2,135 $ 7,091 $ 6,350
Gross profit margin 74.6% 70.3% 75.3% 70.0%
Revenue from software for the third quarter and first nine months of 1998
increased 4.5 percent and 3.8 percent, respectively, over comparable periods in
1997. The third-quarter and first-nine months results were negatively affected
by approximately 3 and 4 percentage points, respectively, from currency in 1998.
The revenue increases are being driven by growth in the company's middleware
products consisting of data management, transaction processing, Tivoli systems
management, and messaging and collaboration. In addition, operating systems
revenue also showed growth, primarily as a result of strong AS/400 revenue.
Software gross profit dollars for the third quarter and first nine months
of 1998 increased 11.0 and 11.7 percent, respectively, versus the same periods
in 1997. Software gross profit margins increased 4.3 percentage points and 5.3
percentage points, respectively, for the third quarter and first nine months of
1998, when compared to the same periods of last year. The company continues to
see an improved margin due to lower levels of amortization associated with
deferred development costs.
Maintenance
(Dollars in millions) Three Months Ended Nine Months Ended
September 30 September 30
------------------- ------------------
1998 1997 1998 1997
-------- -------- -------- -------
Total revenue $ 1,449 $ 1,574 $ 4,405 $ 4,809
Total cost 770 838 2,293 2,564
-------- -------- -------- -------
Gross profit $ 679 $ 736 $ 2,112 $ 2,245
Gross profit margin 46.8% 46.8% 47.9% 46.7%
Maintenance revenue for the third quarter and first nine months of 1998
decreased 8.0 percent and 8.4 percent, respectively, from comparable periods in
1997. The third-quarter and first-nine months revenue was negatively affected by
approximately 4 percentage points, respectively, from currency in 1998.
Maintenance gross profit dollars decreased 7.7 percent and 5.9 percent,
respectively, in the third quarter and first nine months of 1998, when compared
to the same periods of 1997. While maintenance revenue continues to be impacted
by aggressive pricing dynamics, the gross profit margin has displayed a positive
trend in the first half of 1998 and was flat in the third quarter versus the
same periods of 1997, due to effective cost management actions.
-10-
<PAGE>
Results of Operations - (continued)
Rentals and financing
(Dollars in millions) Three Months Ended Nine Months Ended
September 30 September 30
------------------- ------------------
1998 1997 1998 1997
-------- -------- -------- -------
Total revenue $ 1,000 $ 938 $ 2,985 $ 2,765
Total cost 576 486 1,700 1,364
-------- -------- -------- -------
Gross profit $ 424 $ 452 $ 1,285 $ 1,401
Gross profit margin 42.4% 48.2% 43.1% 50.7%
Revenue from rentals and financing increased 6.7 percent and 8.0 percent,
respectively, for the third quarter and first nine months of 1998, versus
comparable periods in 1997. The third-quarter and first-nine months revenue was
negatively affected by approximately 3 percentage points, respectively, from
currency in 1997. The increases in revenue were driven by higher levels of
operating leases on low-end products.
Rentals and financing gross profit dollars decreased 6.2 percent and 8.3
percent, respectively, for the third quarter and first nine months of 1998, when
compared to the same periods of the prior year. The decline in gross profit
dollars and margin were principally due to a trend towards financing a greater
amount of low-end products and faster growth in the more competitive U.S.
market.
Expenses
(Dollars in millions) Three Months Ended Nine Months Ended
September 30 September 30
------------------- ------------------
1998 1997 1998 1997
-------- -------- -------- -------
Selling, general and
administrative $ 4,057 $ 3,932 $ 11,588 $11,574
Percentage of revenue 20.2% 21.1% 20.5% 21.1%
Research, development and
engineering $ 1,240 $ 1,162 $ 3,639 $ 3,452
Percentage of revenue 6.2% 6.2% 6.4% 6.3%
Selling, general and administrative expense for the third quarter
increased 3.1 percent and was essentially flat for the first nine months of
1998, respectively, compared to the same periods in 1997. Currency had a benefit
of about 3 percentage points for the third quarter and first nine months of 1998
versus the same periods in 1997. The company continues to aggressively manage
infrastructure expense and its overall portfolio to allow for investment in
growth segments of the business.
-11-
<PAGE>
Results of Operations - (continued)
Research, development and engineering expense increased 6.7 percent and
5.4 percent, respectively, for the third quarter and first nine months of 1998,
when compared to the same periods of 1997. The increase in the third quarter
reflects the company's continued investments in high-growth opportunities like
e-business, Tivoli Systems, Java and hard disk drives. The increase in the first
nine months of 1998 was primarily due to the charges and operating expenses
associated with the acquisition of Software Artistry, Inc. and CommQuest
Technologies in the first quarter of 1998, as well as increased spending on
other high-growth opportunities.
Interest on total borrowings of the company and its subsidiaries, which
includes interest expense and interest costs associated with rentals and
financing, amounted to $377 million and $1,172 million for the third quarter and
first nine months of 1998, respectively. Of these amounts, $9 million for the
third quarter and $20 million for the first nine months were capitalized.
The effective tax rate for the quarter ended September 30, 1998, was 30.0
percent versus 31.5 percent for the same period in 1997. The decrease was
primarily the result of the source of earnings and corresponding weighting of
tax rates on a country-by-country basis, as the company continued to expand into
markets with lower effective tax rates.
The effective tax rate for the first nine months of 1998 was 30.6 percent,
versus 33.5 percent for the same period in 1997. The 2.9 points decrease from
the 1997 rate was a result of the same factors that impacted the third quarter
effective tax rate.
Financial Condition
During 1998, the company has continued to make significant investments to
fund its future growth and increase shareholder value. These include
expenditures of $4.0 billion for research, development and engineering, $4.6
billion in plant, rental machines and other property and $5.3 billion for the
repurchase of the company's common shares. The company had $5.9 billion in cash,
cash equivalents and marketable securities at September 30, 1998.
Cash Flow
(Dollars in millions) Nine Months Ended
September 30
------------------
1998 1997
------- -------
Net cash provided from (used in):
Operating activities $ 6,541 $ 5,091
Investing activities (4,486) (4,436)
Financing activities (3,703) (2,285)
Effect of exchange rate changes
on cash and cash equivalents 95 (131)
------- -------
Net change in cash and cash equivalents $(1,553) $(1,761)
-12-
<PAGE>
Financial Condition - (continued)
Working Capital
(Dollars in millions) At September 30 At December 31
1998 1997
--------------- --------------
Current assets $ 38,802 $ 40,418
Current liabilities 31,512 33,507
-------- --------
Working capital $ 7,290 $ 6,911
Current ratio 1.23:1 1.21:1
Current assets declined $1.6 billion from year-end 1997 with declines of
$1.7 billion in cash, cash equivalents and marketable securities, and $.3
billion in accounts receivable, offset by an increase of $.4 billion in
inventories. The decrease in cash, cash equivalents and marketable securities
resulted primarily from the stock repurchases and capital expenditures, offset
by cash generated from operations and debt financing. The decline in accounts
receivable was attributable to the collection of typically higher year-end
accounts receivable balances, while inventories have generally increased to meet
anticipated fourth-quarter demand.
Current liabilities declined $2.0 billion with declines of $1.4 billion in
accounts payable and accruals (resulting primarily from seasonal declines in
these balances from their normally higher year-end levels), and $.6 billion in
taxes.
Investments
During the first nine months of 1998, the company continued to invest in
its rapidly growing services business, primarily in the management of customers'
information technology, as well as in manufacturing capacity for hard disk
drives and microelectronics. The company's capital investment for plant, rental
machines and property was $4.6 billion during the first nine months of 1998, an
increase of $.1 billion from the comparable 1997 period.
In addition to software development expense included in research,
development and engineering expense, the company capitalized $.2 billion of
software costs during the first nine months of both 1998 and 1997. Amortization
of capitalized software costs amounted to $.4 billion during the first
nine-months of 1998, a decline of $.4 billion from the comparable 1997 period.
Investments and sundry assets were $21.3 billion at September 30, 1998, a
decrease of $.6 billion from year-end 1997, resulting primarily from a decrease
in non-current sales-type lease receivables and deferred tax assets.
-13-
<PAGE>
Financial Condition - (continued)
Debt and Equity
(Dollars in millions) At September 30 At December 31
1998 1997
--------------- --------------
"Core" debt $ 2,572 $ 3,102
Global financing debt 25,904 23,824
-------- --------
Total debt $ 28,476 $ 26,926
Stockholders' equity $ 18,635 $ 19,816
Debt/capitalization 60.4% 57.6%
"Core" debt/capitalization 14.9% 16.1%
Global financing debt/equity 6.5:1 6.5:1
Total debt increased $1.6 billion from year-end 1997, as debt in support
of growth in global financing assets increased $2.1 billion, and "core" debt
declined $.5 billion. Stockholders' equity declined $1.2 billion from December
31, 1997, as the increase in the company's retained earnings was more than
offset by the common share repurchases.
Liquidity
The company maintains a $10.0 billion committed global credit facility as
part of its ongoing efforts to ensure appropriate levels of liquidity. As of
September 30, 1998, $8.8 billion of this confirmed line of credit remained
unused and available for future use.
At September 30, 1998, the company had an outstanding balance of $1.1
billion in assets under management from the securitization of loans, leases and
trade receivables.
Year 2000
The "Year 2000 issue" arises because many computer hardware and software
systems use only two digits to represent the year. As a result, these systems
and programs may not process dates beyond 1999, which may cause errors in
information or systems failures. Assessments of the potential effects of the
Year 2000 issues vary markedly among different companies, governments,
consultants, economists and commentators, and it is not possible to predict what
the actual impact may be. Given this uncertainty, the company recognizes the
need to remain vigilant and is continuing its analysis, assessment and planning
for the various Year 2000 issues, across its business.
With respect to its internal systems, the potential Year 2000 impacts
extend beyond the company's information technology systems to its manufacturing
and development systems and physical facilities. The company has been addressing
these issues using the same five-part methodology it recommends to its
customers: (1) Assessment and Strategy; (2) Detailed Analysis and Planning; (3)
Implementation; (4) Clean Management (maintaining readiness of converted
systems); and (5) Project Office Management. The company expects to complete
most conversion and testing early in 1999,
-14-
<PAGE>
Year 2000 - (continued)
with extended system integration testing and contingency planning projects
scheduled throughout 1999. Although the company believes its efforts will be
successful, and does not not expect the costs of these efforts to be material,
any failure or delay could result in the disruption of business and in the
company incurring substantial expense. To minimize any such potential impact,
the company has initiated a global contingency planning effort designed to
support critical business operations.
As part of its ordinary course product development efforts, the company's
current product and service offerings have been designed to be Year 2000 ready.
The Year 2000 readiness of the company's customers varies, and the company is
actively encouraging its customers to prepare their own systems, making
available a broad array of product, service and educational offerings to assist
them (see the IBM Year 2000 Home Page at http://www.ibm.com/IBM/year2000/).
Efforts by customers to address Year 2000 issues may absorb a substantial part
of their information technology budgets in the near term, and customers may
either delay or accelerate the deployment and implementation of new applications
and systems. While this behavior may increase demand for certain of the
company's products and services, including its Year 2000 offerings, it could
also soften demand for other offerings. These events could affect the company's
revenues or change its revenue patterns.
The company is also in the process of assessing the Year 2000 readiness of
its key suppliers, subcontractors and business partners. This project has been
undertaken with a view toward assuring that the company has adequate resources
for required supplies, components and complementary offerings, and the company
expects to complete this project early in 1999. A failure of the company's
suppliers, subcontractors and business partners to address adequately their Year
2000 readiness could affect the company's business. As part of its contingency
planning efforts, the company is identifying alternate sources or strategies
where necessary if significant exposures are identified.
In addition, the company is aware of the potential for claims against it
and other companies for damages arising from products and services that were not
Year 2000 ready. The company continues to believe that any such claims against
it would be without merit.
Finally, the Year 2000 presents a number of other risks and uncertainties
that could affect the company, including utilities failures, competition for
personnel skilled in the resolution of Year 2000 issues, and the nature of
government responses to the issues, among others. While the company continues to
believe that the Year 2000 matters discussed above will not have a material
impact on its business, financial condition or results of operations, it remains
uncertain whether or to what extent the company may be affected.
-15-
<PAGE>
Forward Looking and Cautionary Statements
Except for the historical information and discussions contained herein,
statements contained in this Form 10-Q (including statements in the Year 2000
discussion above) may constitute 'forward looking statements' within the meaning
of the Private Securities Litigation Reform Act of 1995. These statements
involve a number of risks, uncertainties and other factors that could cause
actual results to differ materially, including the company's failure to continue
to develop and market new and innovative products and services and to keep pace
with technological change; competitive pressures; failure to obtain or protect
intellectual property rights; the ultimate impact of the various Year 2000
issues on the company's business, financial condition or results of operations;
quarterly fluctuations in revenues and volatility of stock prices; the company's
ability to attract and retain key personnel; currency and customer financing
risks; dependence on certain suppliers; changes in the financial or business
condition of the company's distributors or resellers; the company's ability to
successfully manage acquisitions and alliances; legal, political and economic
changes and other risks, uncertainties and factors discussed in the company's
other filings with the Securities and Exchange Commission, and in materials
incorporated therein by reference, including the company's Form 10-K filed on
March 30, 1998.
Part II - Other Information
ITEM 5. Other Information
Under the terms of the registrant's By-laws, stockholders who intend to
present an item of business at the 1999 annual meeting of stockholders (other
than a proposal submitted for inclusion in the registrant's proxy materials)
must provide notice of such business to the registrant no earlier than October
19, 1998 and no later than November 18, 1998, as set forth more fully in such
By-laws.
ITEM 6 (a). Exhibits
Exhibit Number
3 The By-laws of IBM as amended through October 27, 1998.
11 Statement re: computation of per share earnings.
12 Statement re: computation of ratios.
27 Financial Data Schedule.
ITEM 6 (b). Reports on Form 8-K
A Form 8-K dated July 20, 1998 was filed with respect to the company's
financial results for the period ended June 30, 1998 and included unaudited
consolidated financial statements for the period ended June 30, 1998.
-16-
<PAGE>
Part II - Other Information - (continued)
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
International Business Machines Corporation
-------------------------------------------
(Registrant)
Date: November 12, 1998
- -----------------------
By:
Mark Loughridge
-------------------------------------------
Mark Loughridge
Vice President and Controller
-17-
BY-LAWS
of
INTERNATIONAL BUSINESS MACHINES CORPORATION
Adopted April 29, 1958
As Amended Through
October 27, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE I PAGE
Definitions 1
ARTICLE II
MEETINGS OF STOCKHOLDERS
SEC. 1. Place of Meetings 1
SEC. 2. Annual Meetings 1
SEC. 3. Special Meetings 2
SEC. 4. Notice of Meetings 2
SEC. 5. Quorum 2
SEC. 6. Organization 3
SEC. 7. Items of Business 3
SEC. 8. Voting 4
SEC. 9. List of Stockholders 5
SEC. 10. Inspectors of Election 5
ARTICLE III
BOARD OF DIRECTORS
SEC. 1. General Powers 6
SEC. 2. Number; Qualifications;
Election; Term of Office 6
SEC. 3. Place of Meetings 6
SEC. 4. First Meeting 6
SEC. 5. Regular Meetings 6
SEC. 6. Special Meetings 6
SEC. 7. Notice of Meetings 6
SEC. 8. Quorum and Manner of Acting 7
SEC 9. Organization 7
SEC. 10. Resignations 7
SEC. 11. Vacancies 7
SEC. 12. Retirement of Directors 7
-i-
<PAGE>
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
SEC. 1. Executive Committee 8
SEC. 2. Powers of the Executive
Committee 8
SEC. 3. Meetings of the Executive
Committee 8
SEC. 4. Quorum and Manner of
Acting of the Executive
Committee 9
SEC. 5. Other Committees 9
SEC. 6. Changes in Committees;
Resignations; Removals;
Vacancies 10
ARTICLE V
OFFICERS
SEC. 1. Number and Qualifications 10
SEC. 2. Resignations 10
SEC. 3. Removal 11
SEC. 4. Vacancies 11
SEC. 5. Chairman of the Board 11
SEC. 6. Vice Chairman of the Board 11
SEC. 7. President 11
SEC. 8. Designated Officers 12
SEC. 9. Executive Vice
Presidents, Senior Vice
Presidents and Vice Presidents 12
SEC. 10. Treasurer 12
SEC. 11. Secretary 13
SEC. 12. Controller 14
SEC. 13. Compensation 14
ii
<PAGE>
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS,
BANK ACCOUNTS, ETC.
SEC. 1. Execution of Contracts 14
SEC. 2. Loans 14
SEC. 3. Checks, Drafts, etc 15
SEC. 4. Deposits 15
SEC. 5. General and Special Bank
Accounts 15
SEC. 6. Indemnification 15
ARTICLE VII
SHARES
SEC. 1. Stock Certificates 16
SEC. 2. Books of Account and Record of
Stockholders 16
SEC. 3. Transfers of Stock 16
SEC. 4. Regulations 17
SEC. 5. Fixing of Record Date 17
SEC. 6. Lost, Destroyed or Mutilated
Certificates 17
SEC. 7. Inspection of Records 18
SEC. 8. Auditors 18
ARTICLE VIII
OFFICES
SEC. 1. Principal Office 18
SEC. 2. Other Offices 18
ARTICLE IX
Waiver of Notice 18
- iii -
<PAGE>
ARTICLE X
Fiscal Year 19
ARTICLE XI
Seal 19
ARTICLE XII
Amendments 19
- iv -
<PAGE>
BY-LAWS
OF
INTERNATIONAL BUSINESS MACHINES CORPORATION
ARTICLE I
DEFINITIONS
In these By-laws, and for all purposes hereof, unless there be something
in the subject or context inconsistent therewith:
(a) 'Corporation' shall mean International Business Machines Corporation.
(b) 'Certificate of Incorporation' shall mean the restated Certificate of
Incorporation as filed on May 27, 1992, together with any and all amendments and
subsequent restatements thereto.
(c) 'Board' shall mean the Board of Directors of the Corporation.
(d) 'stockholders' shall mean the stockholders of the Corporation.
(e) 'Chairman of the Board', 'Vice Chairman of the Board', 'Chairman of
the Executive Committee', 'Chief Executive Officer,' 'Chief Financial Officer',
'Chief Accounting Officer', 'President', 'Executive Vice President', 'Senior
Vice President', 'Vice President', 'Treasurer', 'Secretary', or 'Controller', as
the case may be, shall mean the person at any given time occupying the
particular office with the Corporation.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. Meetings of the stockholders of the
Corporation shall be held at such place either within or outside the State of
New York as may from time to time be fixed by the Board or specified or fixed in
the notice of any such meeting.
SECTION 2. Annual Meetings. The annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held on the last
Tuesday of April of each year, if not a legal holiday, or, if such day shall be
a legal holiday, then on the next succeeding day not a legal holiday. If any
annual meeting shall not be held on the day designated herein, or if the
directors to be elected at such annual
<PAGE>
meeting shall not have been elected thereat or at any adjournment thereof, the
Board shall forthwith call a special meeting of the stockholders for the
election of directors to be held as soon thereafter as convenient and give
notice thereof as provided in these By-laws in respect of the notice of an
annual meeting of the stockholders. At such special meeting the stockholders may
elect the directors and transact other business with the same force and effect
as at an annual meeting of the stockholders duly called and held.
SECTION 3. Special Meetings. Special meetings of the stockholders, unless
otherwise provided by law, may be called at any time by the Chairman of the
Board or by the Board.
SECTION 4. Notice of Meetings. Notice of each meeting of the stockholders,
annual or special, shall be given in the name of the Chairman of the Board, a
Vice Chairman of the Board or the President or a Vice President or the
Secretary. Such notice shall state the purpose or purposes for which the meeting
is called and the date and hour when and the place where it is to be held. A
copy thereof shall be duly delivered or transmitted to all stockholders of
record entitled to vote at such meeting, and all stockholders of record who, by
reason of any action proposed to be taken at such meeting, would be entitled to
have their stock appraised if such action were taken, not less than ten or more
than sixty days before the day on which the meeting is called to be held. If
mailed, such copy shall be directed to each stockholder at the address listed on
the record of stockholders of the Corporation, or if the stockholder shall have
filed with the Secretary a written request that notices be mailed to some other
address, it shall be mailed to the address designated in such request.
Nevertheless, notice of any meeting of the stockholders shall not be required to
be given to any stockholder who shall waive notice thereof as hereinafter
provided in Article IX of these By-laws. Except when expressly required by law,
notice of any adjourned meeting of the stockholders need not be given nor shall
publication of notice of any annual or special meeting thereof be required.
SECTION 5. Quorum. Except as otherwise provided by law, at all meetings of
the stockholders, the presence of holders of record of a majority of the
outstanding shares of stock of the Corporation having voting power, in person or
represented by proxy and entitled to vote thereat, shall be necessary to
constitute a quorum for the transaction of business. In the absence of a quorum
at any such meeting or any adjournment or adjournments thereof, a majority in
voting interest of those present in person or represented by proxy and entitled
to vote thereat, or, in the absence of all the stockholders, any officer
entitled to preside at, or to act as secretary of, such meeting, may adjourn
such meeting from time to time without further notice, other than by
announcement at the meeting at which such adjournment shall be taken, until a
quorum shall be present thereat. At any adjourned meeting at which a quorum
shall be present any business may be transacted which might have been transacted
at the meeting as originally called.
<PAGE>
SECTION 6. Organization. At each meeting of the stockholders, the Chairman
of the Board, or in the absence of the Chairman of the Board, the President, or
in the absence of the Chairman of the Board and the President, a Vice Chairman
of the Board, or if the Chairman of the Board, the President, and all Vice
Chairmen of the Board shall be absent therefrom, an Executive Vice President, or
if the Chairman of the Board, the President, all Vice Chairmen of the Board and
all Executive Vice Presidents shall be absent therefrom, a Senior Vice President
shall act as chairman. The Secretary, or, if the Secretary shall be absent from
such meeting or unable to act, the person whom the Chairman of such meeting
shall appoint secretary of such meeting shall act as secretary of such meeting
and keep the minutes thereof.
SECTION 7. Items of Business. The items of business at all meetings of the
stockholders shall be, insofar as applicable, as follows:
-- Call to order.
-- Proof of notice of meeting or of waiver thereof.
-- Appointment of inspectors of election, if necessary.
-- A quorum being present.
-- Reports.
-- Election of directors.
-- Other business specified in the notice of the meeting.
-- Voting.
-- Adjournment.
Any items of business not referred to in the foregoing may be taken up at
the meeting as the chairman of the meeting shall determine.
No other business shall be transacted at any annual meeting of
stockholders, except business as may be: (i) specified in the notice of meeting
(including stockholder proposals included in the Corporation's proxy materials
under Rule 14a-8 of Regulation 14A under the Securities Exchange Act of 1934),
(ii) otherwise brought before the meeting by or at the direction of the Board of
Directors, or (iii) a proper subject for the meeting which is timely submitted
by a stockholder of the Corporation entitled to vote at such meeting who
complies fully with the notice requirements set forth below.
For business to be properly submitted by a stockholder before any annual
meeting under subparagraph (iii) above, a stockholder must give timely notice in
writing of such business to the Secretary of the Corporation. To be considered
timely, a stockholder's notice must be received by the Secretary at the
principal executive offices of the Corporation not less than 120 calendar days
nor more than 150 calendar days before the date of the Corporation's proxy
statement released to stockholders in connection with the prior year's annual
meeting.
However, if no annual meeting was held in the previous year, or if the
date of the applicable annual meeting has been changed by more than 30 days from
the date contemplated at the
<PAGE>
time of the previous year's proxy statement, a stockholder's notice must be
received by the Secretary not later than 60 days before the date the Corporation
commences mailing of its proxy materials in connection with the applicable
annual meeting.
A stockholder's notice to the Secretary to submit business to an annual
meeting of stockholders shall set forth: (i) the name and address of the
stockholder, (ii) the number of shares of stock held of record and beneficially
by such stockholder, (iii) the name in which all such shares of stock are
registered on the stock transfer books of the Corporation, (iv) a representation
that the stockholder intends to appear at the meeting in person or by proxy to
submit the business specified in such notice, (v) a brief description of the
business desired to be submitted to the annual meeting, including the complete
text of any resolutions intended to be presented at the annual meeting, and the
reasons for conducting such business at the annual meeting, (vi) any personal or
other material interest of the stockholder in the business to be submitted, and
(vii) all other information relating to the proposed business which may be
required to be disclosed under applicable law. In addition, a stockholder
seeking to submit such business at the meeting shall promptly provide any other
information reasonably requested by the Corporation.
The chairman of the meeting shall determine all matters relating to the
efficient conduct of the meeting, including, but not limited to, the items of
business, as well as the maintenance of order and decorum. The chairman shall,
if the facts warrant, determine and declare that any putative business was not
properly brought before the meeting in accordance with the procedures prescribed
by this Section 7, in which case such business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 7, a stockholder
who seeks to have any proposal included in the Corporation's proxy materials
shall comply with the requirements of Rule 14a-8 under Regulation 14A of the
Securities Exchange Act of 1934, as amended.
SECTION 8. Voting. Except as otherwise provided by law, each holder of
record of shares of stock of the Corporation having voting power shall be
entitled at each meeting of the stockholders to one vote for every share of such
stock standing in the stockholder's name on the record of stockholders of the
Corporation:
(a) on the date fixed pursuant to the provisions of Section 5 of Article
VII of these By-laws as the record date for the determination of the
stockholders who shall be entitled to vote at such meeting, or
<PAGE>
(b) if such record date shall not have been so fixed, then at the close of
business on the day next preceding the day on which notice of such meeting shall
have been given, or
(c) if such record date shall not have been so fixed and if no notice of
such meeting shall have been given, then at the time of the call to order of
such meeting.
Any vote on stock of the Corporation at any meeting of the stockholders
may be given by the stockholder of record entitled thereto in person or by proxy
appointed by such stockholder or by the stockholder's attorney thereunto duly
authorized and delivered or transmitted to the secretary of such meeting at or
prior to the time designated in the order of business for turning in proxies. At
all meetings of the stockholders at which a quorum shall be present, all matters
(except where otherwise provided by law, the Certificate of Incorporation or
these By-laws) shall be decided by the vote of a majority in voting interest of
the stockholders present in person or represented by proxy and entitled to vote
thereat. Unless required by law, or determined by the chairman of the meeting to
be advisable, the vote on any question need not be by ballot. On a vote by
ballot, each ballot shall be signed by the stockholder voting, or by the
stockholder's proxy as such, if there be such proxy.
SECTION 9. List of Stockholders. A list, certified by the Secretary, of
the stockholders of the Corporation entitled to vote shall be produced at any
meeting of the stockholders upon the request of any stockholder of the
Corporation pursuant to the provisions of applicable law, the Certificate of
Incorporation or these By-laws.
SECTION 10. Inspectors of Election. Prior to the holding of each annual or
special meeting of the stockholders, two inspectors of election to serve thereat
shall be appointed by the Board, or, if the Board shall not have made such
appointment, by the Chairman of the Board. If there shall be a failure to
appoint inspectors, or if, at any such meeting, any inspector so appointed shall
be absent or shall fail to act or the office shall become vacant, the chairman
of the meeting may, and at the request of a stockholder present in person and
entitled to vote at such meeting shall, appoint such inspector or inspectors of
election, as the case may be, to act thereat. The inspectors of election so
appointed to act at any meeting of the stockholders, before entering upon the
discharge of their duties, shall be sworn faithfully to execute the duties of
inspectors at such meeting, with strict impartiality and according to the best
of their ability, and the oath so taken shall be subscribed by them. Such
inspectors of election shall take charge of the polls, and, after the voting on
any question, shall make a certificate of the results of the vote taken. No
director or candidate for the office of director shall act as an inspector of an
election of directors. Inspectors need not be stockholders.
<PAGE>
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed by the Board. The Board may exercise all such authority and
powers of the Corporation and do all such lawful acts and things as are not by
law, the Certificate of Incorporation or these By-laws, directed or required to
be exercised or done by the stockholders.
SECTION 2. Number; Qualifications; Election; Term of Office. The number of
directors of the Corporation shall be twelve, but the number thereof may be
increased to not more than twenty-five, or decreased to not less than nine, by
amendment of these By-laws. The directors shall be elected at the annual meeting
of the stockholders. At each meeting of the stockholders for the election of
directors at which a quorum is present, the persons receiving a plurality of the
votes at such election shall be elected. Each director shall hold office until
the annual meeting of the stockholders which shall be held next after the
election of such director and until a successor shall have been duly elected and
qualified, or until death, or until the director shall have resigned as
hereinafter provided in Section 10 of this Article III.
SECTION 3. Place of Meetings. Meetings of the Board shall be held at such
place either within or outside State of New York as may from time to time be
fixed by the Board or specified or fixed in the notice of any such meeting.
SECTION 4. First Meeting. The Board shall meet for the purpose of
organization, the election of officers and the transaction of other business, on
the same day the annual meeting of stockholders is held. Notice of such meeting
need not be given. Such meeting may be held at any other time or place which
shall be specified in a notice thereof given as hereinafter provided in Section
7 of this Article III.
SECTION 5. Regular Meetings. Regular meetings of the Board shall be held
at times and dates fixed by the Board or at such other times and dates as the
Chairman of the Board shall determine and as shall be specified in the notice of
such meetings. Notice of regular meetings of the Board need not be given except
as otherwise required by law or these By-laws.
SECTION 6. Special Meetings. Special meetings of the Board may be called
by the Chairman of the Board.
SECTION 7. Notice of Meetings. Notice of each special meeting of the Board
(and of each regular meeting for which notice shall be required) shall be given
by the Secretary as hereinafter provided in this Section 7, in which notice
shall be stated the time, place and, if required by law or these By-laws, the
purposes of such meeting. Notice of each such meeting shall be mailed, postage
prepaid, to each director, by first-class mail, at least four days before the
day on which such meeting is to be held, or shall be sent by facsimile
transmission or comparable medium, or be delivered personally or by telephone,
at least twenty-four hours before the time at which such meeting is to be held.
Notice of any such meeting need not be given to any director who shall waive
notice thereof as provided in Article IX of these By-laws. Any meeting of the
Board shall be a legal meeting without notice thereof having been given, if all
the directors of the Corporation then holding office shall be present thereat.
<PAGE>
SECTION 8. Quorum and Manner of Acting. A majority of the Board shall be
present in person at any meeting of the Board in order to constitute a quorum
for the transaction of business at such meeting. Participation in a meeting by
means of a conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other shall constitute
presence in person at a meeting. Except as otherwise expressly required by law
or the Certificate of Incorporation and except also as specified in Section 1,
Section 5, and Section 6 of Article IV, in Section 3 of Article V and in Article
XII of these By-laws, the act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board. In the
absence of a quorum at any meeting of the Board, a majority of the directors
present thereat may adjourn such meeting from time to time until a quorum shall
be present thereat. Notice of any adjourned meeting need not be given. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called. The
directors shall act only as a Board and the individual directors shall have no
power as such.
SECTION 9. Organization. At each meeting of the Board, the Chairman of the
Board, or in the case of the Chairman's absence therefrom, the President, or in
the case of the President's absence therefrom, a Vice Chairman, or in the case
of the absence of all such persons, another director chosen by a majority of
directors present, shall act as chairman of the meeting and preside thereat. The
Secretary, or if the Secretary shall be absent from such meeting, any person
appointed by the chairman, shall act as secretary of the meeting and keep the
minutes thereof.
SECTION 10. Resignations. Any director of the Corporation may resign at
any time by giving written notice of resignation to the Board or the Chairman of
the Board or the Secretary. Any such resignation shall take effect at the time
specified therein, or if the time when it shall become effective shall not be
specified therein, then it shall take effect immediately upon its receipt; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 11. Vacancies. Any vacancy in the Board, whether arising from
death, resignation, an increase in the number of directors or any other cause,
may be filled by the Board.
SECTION 12. Retirement of Directors. The Board may prescribe a retirement
policy for directors on or after reaching a certain age, provided, however, that
such
<PAGE>
retirement shall not cut short the annual term for which any director shall have
been elected by the stockholders.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. Executive Committee. The Board, by resolution adopted by a
majority of the Board, may designate not less than four of the directors then in
office to constitute an Executive Committee, each member of which unless
otherwise determined by resolution adopted by a majority of the whole Board,
shall continue to be a member of such Committee until the annual meeting of the
stockholders which shall be held next after designation as a member of such
Committee or until the earlier termination as a director. The Chief Executive
Officer shall always be designated as a member of the Executive Committee. The
Board may by resolution appoint one member as the Chairman of the Executive
Committee who shall preside at all meetings of such Committee. In the absence of
said Chairman, the Chief Executive Officer shall preside at all such meetings.
In the absence of both the Chairman of the Executive Committee and the Chief
Executive Officer, the Chairman of the Board shall preside at all such meetings.
In the absence of the Chairman of the Executive Committee and the Chief
Executive Officer and the Chairman of the Board, the President shall preside at
all such meetings. In the absence of all such persons, a majority of the members
of the Executive Committee present shall choose a chairman to preside at such
meetings. The Secretary, or if the Secretary shall be absent from such meeting,
any person appointed by the chairman, shall act as secretary of the meeting and
keep the minutes thereof.
SECTION 2. Powers of the Executive Committee. To the extent permitted by
law, the Executive Committee may exercise all the powers of the Board in the
management of specified matters where such authority is delegated to it by the
Board, and also, to the extent permitted by law, the Executive Committee shall
have, and may exercise, all the powers of the Board in the management of the
business and affairs of the Corporation (including the power to authorize the
seal of the Corporation to be affixed to all papers which may require it; but
excluding the power to appoint a member of the Executive Committee) in such
manner as the Executive Committee shall deem to be in the best interests of the
Corporation and not inconsistent with any prior specific action of the Board. An
act of the Executive Committee taken within the scope of its authority shall be
an act of the Board. The Executive Committee shall render in the form of minutes
a report of its several acts at each regular meeting of the Board and at any
other time when so directed by the Board.
SECTION 3. Meetings of the Executive Committee. Regular meetings of the
Executive Committee shall be held at such times, on such dates and at such
places as shall be fixed by resolution adopted by a majority of the Executive
Committee,
<PAGE>
of which regular meetings notice need not be given, or as shall be fixed by the
Chairman of the Executive Committee or in the absence of the Chairman of the
Executive Committee the Chief Executive Officer and specified in the notice of
such meeting. Special meetings of the Executive Committee may be called by the
Chairman of the Executive Committee or by the Chief Executive Officer. Notice of
each such special meeting of the Executive Committee (and of each regular
meeting for which notice shall be required), stating the time and place thereof
shall be mailed, postage prepaid, to each member of the Executive Committee, by
first-class mail, at least four days before the day on which such meeting is to
be held, or shall be sent by facsimile transmission or comparable medium, or be
delivered personally or by telephone, at least twenty-four hours before the time
at which such meeting is to be held; but notice need not be given to a member of
the Executive Committee who shall waive notice thereof as provided in Article IX
of these By-laws, and any meeting of the Executive Committee shall be a legal
meeting without any notice thereof having been given, if all the members of such
Committee shall be present thereat.
SECTION 4. Quorum and Manner of Acting of the Executive Committee. Four
members of the Executive Committee shall constitute a quorum for the transaction
of business, and the act of a majority of the members of the Executive Committee
present at a meeting at which a quorum shall be present shall be the act of the
Executive Committee. Participating in a meeting by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other shall constitute presence at a meeting of the
Executive Committee. The members of the Executive Committee shall act only as a
committee and individual members shall have no power as such.
SECTION 5. Other Committees. The Board may, by resolution adopted by a
majority of the Board, designate members of the Board to constitute other
committees, which shall have, and may exercise, such powers as the Board may by
resolution delegate to them, and shall in each case consist of such number of
directors as the Board may determine; provided, however, that each such
committee shall have at least three directors as members thereof. Such a
committee may either be constituted for a specified term or may be constituted
as a standing committee which does not require annual or periodic
reconstitution. A majority of all the members of any such committee may
determine its action and its quorum requirements and may fix the time and place
of its meetings, unless the Board shall otherwise provide. Participating in a
meeting by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other shall
constitute presence at a meeting of such other committees.
In addition to the foregoing, the Board may, by resolution adopted by a
majority of the Board, create a committee of indeterminate membership and
duration and not subject to the limitations as to the membership, quorum and
manner of meeting and acting prescribed in these By-laws, which committee, in
the event of a major disaster or catastrophe or national emergency which renders
the Board
<PAGE>
incapable of action by reason of the death, physical incapacity or inability to
meet of some or all of its members, shall have, and may exercise all the powers
of the Board in the management of the business and affairs of the Corporation
(including, without limitation, the power to authorize the seal of the
Corporation to be affixed to all papers which may require it and the power to
fill vacancies in the Board). An act of such committee taken within the scope of
its authority shall be an act of the Board.
SECTION 6. Changes in Committees; Resignations; Removals; Vacancies. The
Board shall have power, by resolution adopted by a majority of the Board, at any
time to change or remove the members of, to fill vacancies in, and to discharge
any committee created pursuant to these By-laws, either with or without cause.
Any member of any such committee may resign at any time by giving written notice
to the Board or the Chairman of the Board or the Secretary. Such resignation
shall take effect upon receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, acceptance of such resignation
shall not be necessary to make it effective. Any vacancy in any committee,
whether arising from death, resignation, an increase in the number of committee
members or any other cause, shall be filled by the Board in the manner
prescribed in these By-laws for the original appointment of the members of such
committee.
ARTICLE V
OFFICERS
SECTION 1. Number and Qualifications. The officers of the Corporation
shall include the Chairman of the Board, and may include one or more Vice
Chairmen of the Board, the President, one or more Vice Presidents (one or more
of whom may be designated as Executive Vice Presidents or as Senior Vice
Presidents or by other designations), the Treasurer, the Secretary and the
Controller. Officers shall be elected from time to time by the Board, each to
hold office until a successor shall have been duly elected and shall have
qualified, or until death, or until resignation as hereinafter provided in
Section 2 of this Article V, or until removed as hereinafter provided in Section
3 of this Article V.
SECTION 2. Resignations. Any officer of the Corporation may resign at any
time by giving written notice of resignation to the Board, the Chairman of the
Board, the Chief Executive Officer or the Secretary. Any such resignation shall
take effect at the time specified therein, or, if the time when it shall become
effective shall not be specified therein, then it shall become effective upon
its receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
<PAGE>
SECTION 3. Removal. Any officer of the Corporation may be removed, either
with or without cause, at any time, by a resolution adopted by a majority of the
Board at any meeting of the Board.
SECTION 4. Vacancies. A vacancy in any office, whether arising from death,
resignation, removal or any other cause, may be filled for the unexpired portion
of the term of office which shall be vacant, in the manner prescribed in these
By-laws for the regular election or appointment to such office.
SECTION 5. Chairman of the Board. The Chairman of the Board shall, if
present, preside at each meeting of the stockholders and of the Board and shall
perform such other duties as may from time to time be assigned by the Board. The
Chairman may sign certificates representing shares of the stock of the
Corporation pursuant to the provisions of Section 1 of Article VII of these
By-laws; sign, execute and deliver in the name of the Corporation all deeds,
mortgages, bonds, contracts or other instruments authorized by the Board, except
in cases where the signing, execution or delivery thereof shall be expressly
delegated by the Board or these By-laws to some other officer or agent of the
Corporation or where they shall be required by law otherwise to be signed,
executed and delivered; and affix the seal of the Corporation to any instrument
which shall require it. The Chairman of the Board, when there is no President or
in the absence or incapacity of the President, shall perform all the duties and
functions and exercise all the powers of the President.
SECTION 6. Vice Chairman of the Board. Each Vice Chairman of the Board
shall assist the Chairman of the Board and have such other duties as may be
assigned by the Board or the Chairman of the Board. The Vice Chairman may sign
certificates representing shares of the stock of the Corporation pursuant to the
provisions of Section 1 of Article VII of these By-laws; sign, execute and
deliver in the name of the Corporation all deeds, mortgages, bonds, contracts or
other instruments authorized by the Board, except in cases where the signing,
execution or delivery thereof shall be expressly delegated by the Board or these
By-laws to some officer or agent of the Corporation or where they shall be
required by law otherwise to be signed, executed and delivered; and affix the
seal of the Corporation to any instrument which shall require it.
SECTION 7. President. The President shall perform all such duties as from
time to time may be assigned by the Board or the Chairman of the Board. The
President may sign certificates representing shares of the stock of the
Corporation pursuant to the provisions of Section 1 of Article VII of these
By-laws; sign, execute and deliver in the name of the Corporation all deeds
mortgages, bonds, contracts or other instruments authorized by the Board, except
in cases where the signing, execution or delivery thereof shall be expressly
delegated by the Board or these By-laws to some other officer or agent of the
Corporation or where they shall be required by law otherwise to be signed,
executed and delivered, and affix the seal of the Corporation to any instrument
which shall require it; and, in general, perform all duties incident to the
office of President. The President shall in the absence or incapacity of the
Chairman of the Board, perform all the duties and functions and exercise all the
powers of the Chairman of the Board.
<PAGE>
SECTION 8. Designated Officers. (a) Chief Executive Officer. Either the
Chairman of the Board, or the President, as the Board of Directors may
designate, shall be the Chief Executive Officer of the Corporation. The officer
so designated shall have, in addition to the powers and duties applicable to the
office set forth in Section 5 or 7 of this Article V, general and active
supervision over the business and affairs of the Corporation and over its
several officers, agents, and employees, subject, however, to the control of the
Board. The Chief Executive Officer shall see that all orders and resolutions of
the Board are carried into effect, be an ex officio member of all committees of
the Board (except the Audit Committee, the Directors and Corporate Governance
Committee, and committees specifically empowered to fix or approve the Chief
Executive Officer's compensation or to grant or administer bonus, option or
other similar plans in which the Chief Executive Officer is eligible to
participate), and, in general, shall perform all duties incident to the position
of Chief Executive Officer and such other duties as may from time to time be
assigned by the Board. (b) Other Designated Officers. The Board of Directors may
designate officers to serve as Chief Financial Officer, Chief Accounting Officer
and other such designated positions and to fulfill the responsibilities of such
designated positions in addition to their duties as officers as set forth in
this Article V.
SECTION 9. Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents. Each Executive and Senior Vice President shall perform all such
duties as from time to time may be assigned by the Board or the Chairman of the
Board or a Vice Chairman of the Board or the President. Each Vice President
shall perform all such duties as from time to time may be assigned by the Board
or the Chairman of the Board or a Vice Chairman of the Board or the President or
an Executive or a Senior Vice President. Any Vice President may sign
certificates representing shares of stock of the Corporation pursuant to the
provisions of Section 1 of Article VII of these By-laws.
SECTION 10. Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all the funds and
securities of the Corporation, and may invest the same in any securities, may
open, maintain and close accounts for effecting any and all purchase, sale,
investment and lending transactions in securities of any and all kinds for and
on behalf of the Corporation or any employee pension or benefit plan fund or
other fund established by the Corporation, as may be permitted by law;
(b) keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation;
<PAGE>
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositaries as may be designated by the Board or the
Executive Committee;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the investment of
its funds, taking proper vouchers therefor;
(f) render to the Board, whenever the Board may require, an account of all
transactions as Treasurer; and
(g) in general, perform all the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned by the Board or the
Chairman of the Board or a Vice Chairman of the Board or the President or an
Executive or Senior Vice President.
SECTION 11. Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board, the Executive Committee and
other committees of the Board and the stockholders;
(b) see that all notices are duly given in accordance with the provisions
of these By-laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and affix
and attest the seal to all stock certificates of the Corporation and affix and
attest the seal to all other documents to be executed on behalf of the
Corporation under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept and
filed; and
(e) in general, perform all the duties incident to the office of Secretary
and such other duties as from time to time may be assigned by the Board or the
Chairman of the Board or a Vice Chairman of the Board or the President or an
Executive or Senior Vice President.
<PAGE>
SECTION 12. Controller. The Controller shall:
(a) have control of all the books of account of the Corporation;
(b) keep a true and accurate record of all property owned by it, of its
debts and of its revenues and expenses;
(c) keep all accounting records of the Corporation (other than the
accounts of receipts and disbursements and those relating to the deposits of
money and other valuables of the Corporation, which shall be kept by the
Treasurer);
(d) render to the Board, whenever the Board may require, an account of the
financial condition of the Corporation; and
(e) in general, perform all the duties incident to the office of
Controller and such other duties as from time to time may be assigned by the
Board or the Chairman of the Board or a Vice Chairman of the Board or the
President or an Executive or Senior Vice President.
SECTION 13. Compensation. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board; provided, however,
that the Board may delegate to a committee the power to fix or approve the
compensation of any officers. An officer of the Corporation shall not be
prevented from receiving compensation by reason of being also a director of the
Corporation; but any such officer who shall also be a director shall not have
any vote in the determination of the amount of compensation paid to such
officer.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Execution of Contracts. Except as otherwise required by law or
these By-laws, any contract or other instrument may be executed and delivered in
the name and on behalf of the Corporation by any officer (including any
assistant officer) of the Corporation. The Board or the Executive Committee may
authorize any agent or employee to execute and deliver any contract or other
instrument in the name and on behalf of the Corporation, and such authority may
be general or confined to specific instances as the Board or such Committee, as
the case may be, may by resolution determine.
SECTION 2. Loans. Unless the Board shall otherwise determine, the Chairman
of the Board or a Vice Chairman of the Board or the President or any Vice
President, acting together with the Treasurer or the Secretary, may effect loans
and advances at any time for the Corporation from any bank, trust company or
other
<PAGE>
institution, or from any firm, corporation or individual, and for such loans and
advances may make, execute and deliver promissory notes, bonds or other
certificates or evidences of indebtedness of the Corporation, but in making such
loans or advances no officer or officers shall mortgage, pledge, hypothecate or
transfer any securities or other property of the Corporation, except when
authorized by resolution adopted by the Board.
SECTION 3. Checks, Drafts, etc. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such persons and in such manner
as shall from time to time be authorized by the Board or the Executive Committee
or authorized by the Treasurer acting together with either the General Manager
of an operating unit or a nonfinancial Vice President of the Corporation, which
authorization may be general or confined to specific instances.
SECTION 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositaries as the Board or the Executive
Committee may from time to time designate or as may be designated by any officer
or officers of the Corporation to whom such power of designation may from time
to time be delegated by the Board or the Executive Committee. For the purpose of
deposit and for the purpose of collection for the account of the Corporation,
checks, drafts and other orders for the payment of money which are payable to
the order of the Corporation may be endorsed, assigned and delivered by any
officer, employee or agent of the Corporation.
SECTION 5. General and Special Bank Accounts. The Board or the Executive
Committee may from time to time authorize the opening and keeping of general and
special bank accounts with such banks, trust companies or other depositaries as
the Board or the Executive Committee may designate or as may be designated by
any officer or officers of the Corporation to whom such power of designation may
from time to time be delegated by the Board or the Executive Committee. The
Board or the Executive Committee may make such special rules and regulations
with respect to such bank accounts, not inconsistent with the provisions of
these By-laws, as it may deem expedient.
SECTION 6. Indemnification. 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
<PAGE>
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.
ARTICLE VII
SHARES
SECTION 1. Stock Certificates. The shares of the Corporation shall be
represented by certificates, or shall be uncertificated shares. Each owner of
stock of the Corporation shall be entitled to have a certificate, in such form
as shall be approved by the Board, certifying the number of shares of stock of
the Corporation owned. To the extent that shares are represented by
certificates, such certificates of stock shall be signed in the name of the
Corporation by the Chairman of the Board or a Vice Chairman of the Board or the
President or a Vice President and by the Secretary and sealed with the seal of
the Corporation (which seal may be a facsimile, engraved or printed); provided,
however, that where any such certificate is signed by a registrar, other than
the Corporation or its employee, the signatures of the Chairman of the Board, a
Vice Chairman of the Board, the President, the Secretary, and transfer agent or
a transfer clerk acting on behalf of the Corporation upon such certificates may
be facsimiles, engraved or printed. In case any officer, transfer agent or
transfer clerk acting on behalf of the Corporation ceases to be such officer,
transfer agent, or transfer clerk before such certificates shall be issued, they
may nevertheless be issued by the Corporation with the same effect as if they
were still such officer, transfer agent or transfer clerk at the date of their
issue.
SECTION 2. Books of Account and Record of Stockholders. There shall be
kept at the office of the Corporation correct books of account of all its
business and transactions, minutes of the proceedings of stockholders, Board,
and Executive Committee, and a book to be known as the record of stockholders,
containing the names and addresses of all persons who are stockholders, the
number of shares of stock held, and the date when the stockholder became the
owner of record thereof.
SECTION 3. Transfers of Stock. Transfers of shares of stock of the
Corporation shall be made on the record of stockholders of the Corporation only
upon authorization by the registered holder thereof, or by an attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed, provided such shares are
represented by a certificate, or accompanied by a duly executed stock transfer
power and the payment of all taxes thereon. The person in whose names shares of
stock shall stand on the
<PAGE>
record of stockholders of the Corporation shall be deemed the owner thereof for
all purposes as regards the Corporation. Whenever any transfers of shares shall
be made for collateral security and not absolutely and written notice thereof
shall be given to the Secretary or to such transfer agent or transfer clerk,
such fact shall be stated in the entry of the transfer.
SECTION 4. Regulations. The Board may make such additional rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificated or
uncertificated shares of stock of the Corporation. It may appoint, or authorize
any officer or officers to appoint, one or more transfer agents or one or more
transfer clerks and one or more registrars and may require all certificates of
stock to bear the signature or signatures of any of them.
SECTION 5. Fixing of Record Date. The Board shall fix a time not exceeding
sixty nor less than ten days prior to the date then fixed for the holding of any
meeting of the stockholders or prior to the last day on which the consent or
dissent of the stockholders may be effectively expressed for any purpose without
a meeting, as the time as of which the stockholders entitled to notice of and to
vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who
were holders of record of voting stock at such time, and no others, shall be
entitled to notice of and to vote at such meeting or to express their consent or
dissent, as the case may be. The Board may fix a time not exceeding sixty days
preceding the date fixed for the payment of any dividend or the making of any
distribution or the allotment of rights to subscribe for securities of the
Corporation, or for the delivery of evidences of rights or evidences of
interests arising out of any change, conversion or exchange of capital stock or
other securities, as the record date for the determination of the stockholders
entitled to receive any such dividend, distribution, allotment, rights or
interests, and in such case only the stockholders of record at the time so fixed
shall be entitled to receive such dividend, distribution, allotment, rights or
interests.
SECTION 6. Lost, Destroyed or Mutilated Certificates. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it which the owner thereof shall
allege to have been lost or destroyed or which shall have been mutilated, and
the Corporation may, in its discretion, require such owner or the owner's legal
representatives to give to the Corporation a bond in such sum, limited or
unlimited, and in such form and with such surety or sureties as the Board in its
absolute discretion shall determine, to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss or destruction
of any such certificate, or the issuance of such new certificate. Anything to
the contrary notwithstanding, the Corporation, in its absolute discretion, may
refuse to issue any such new certificate, except pursuant to legal proceedings
under the laws of the State of New York.
<PAGE>
SECTION 7. Inspection of Records. The record of stockholders and minutes
of the proceedings of stockholders shall be available for inspection, within the
limits and subject to the conditions and restrictions prescribed by applicable
law.
SECTION 8. Auditors. The Board shall employ an independent public or
certified public accountant or firm of such accountants who shall act as
auditors in making examinations of the consolidated financial statements of the
Corporation and its subsidiaries in accordance with generally accepted auditing
standards. The auditors shall certify that the annual financial statements are
prepared in accordance with generally accepted accounting principles, and shall
report on such financial statements to the stockholders and directors of the
Corporation. The Board's selection of auditors shall be presented for
ratification by the stockholders at the annual meeting. Directors and officers,
when acting in good faith, may rely upon financial statements of the Corporation
represented to them to be correct by the officer of the Corporation having
charge of its books of account, or stated in a written report by the auditors
fairly to reflect the financial condition of the Corporation.
ARTICLE VIII
OFFICES
SECTION 1. Principal Office. The principal office of the Corporation shall
be at such place in the Town of North Castle, County of Westchester and State of
New York as the Board shall from time to time determine.
SECTION 2. Other Offices. The Corporation may also have an office or
offices other than said principal office at such place or places as the Board
shall from time to time determine or the business of the Corporation may
require.
ARTICLE IX
WAIVER OF NOTICE
Whenever under the provisions of any law of the State of New York, the
Certificate of Incorporation or these By-laws or any resolution of the Board or
any committee thereof, the Corporation or the Board or any committee thereof is
authorized to take any action after notice to the stockholders, directors or
members of any such committee, or after the lapse of a prescribed period of
time, such action may be taken without notice and without the lapse of any
period of time, if, at any time before or after such action shall be completed,
such notice or lapse of time shall be waived by the person or persons entitled
to said notice or entitled to participate in
<PAGE>
the action to be taken, or, in the case of a stockholder, by an attorney
thereunto authorized. Attendance at a meeting requiring notice by any person or,
in the case of a stockholder, by the stockholder's attorney, agent or proxy,
shall constitute a waiver of such notice on the part of the person so attending,
or by such stockholder, as the case may be.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall end on the thirty-first day of
December in each year.
ARTICLE XI
SEAL
The Seal of the Corporation shall consist of two concentric circles with
the IBM logotype appearing in bold face type within the inner circle and the
words 'International Business Machines Corporation' appearing within the outer
circle.
ARTICLE XII
AMENDMENTS
These By-laws may be amended or repealed or new By-laws may be adopted by
the stockholders at any annual or special meeting, if the notice thereof
mentions that amendment or repeal or the adoption of new By-laws is one of the
purposes of such meeting. These By-laws, subject to the laws of the State of New
York, may also be amended or repealed or new By-laws may be adopted by the
affirmative vote of a majority of the Board given at any meeting, if the notice
thereof mentions that amendment or repeal or the adoption of new By-laws is one
of the purposes of such meeting.
<PAGE>
INTERNATIONAL BUSINESS MACHINES CORPORATION
The undersigned does hereby certify that the foregoing is a true and
complete copy of the By-laws of International Business Machines Corporation,
including all amendments thereto, and the same is in force at the date hereof.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of said Corporation, this day of 19 .
----------------------------
Title:
----------------------------
EXHIBIT 11
COMPUTATION OF BASIC AND DILUTED EARNINGS PER SHARE
(UNAUDITED)
For Quarter Ended
--------------------------------------
September 30, 1998 September 30, 1997
------------------ ------------------
Number of shares on which basic
earnings per share is calculated:
Average outstanding during period 928,427,862 978,021,313
Add - Incremental shares under stock
compensation plans 26,070,264 27,186,769
------------ --------------
Number of shares on which diluted
earnings per share is based 954,498,126 1,005,208,082
============ ==============
Net earnings applicable to common
shareholders (millions) $ 1,489 $ 1,354
------------ --------------
Net earnings on which diluted
earnings per share is based (millions) $ 1,489 $ 1,354
============ ==============
Basic earnings per share $ 1.60 $ 1.38
Diluted earnings per share $ 1.56 $ 1.35
Stock options to purchase 13,800 shares in 1998 were outstanding, but were not
included in the computation of diluted earnings because the options' exercise
price was greater than the average market price of the common shares, and
therefore, the effect would be antidilutive. Net earnings applicable to common
shareholders excludes preferred stock dividends of $5 million for the periods
ended September 30, 1998 and 1997.
-1-
<PAGE>
COMPUTATION OF BASIC AND DILUTED EARNINGS PER SHARE - (CONTINUED)
(UNAUDITED)
For Nine Months Ended
--------------------------------------
September 30, 1998 September 30, 1997
------------------ ------------------
Number of shares on which basic
earnings per share is based:
Average outstanding during period ........ 939,416,635 989,436,333
Add - Incremental shares under
stock compensation plans ................. 26,096,394 29,727,625
-------------- --------------
Number of shares on which diluted
earnings per share is calculated ......... 965,513,029 1,019,163,958
============== ==============
Net earnings applicable to common
shareholders (millions) .................. $ 3,967 $ 3,985
-------------- --------------
Net earnings on which diluted
earnings per share
is based (millions) ...................... $ 3,967 $ 3,985
============== ==============
Basic earnings per share ................. $ 4.22 $ 4.03
Diluted earnings per share ............... $ 4.11 $ 3.91
Stock options to purchase 188,850 shares in 1998 were outstanding, but were not
included in the computation of diluted earnings because the options' exercise
price was greater than the average market price of the common shares, and
therefore, the effect would be antidilutive. Net earnings applicable to common
shareholders excludes preferred stock dividends of $15 million for the periods
ended September 30, 1998 and 1997.
-2-
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
FOR NINE MONTHS ENDED SEPTEMBER 30:
(UNAUDITED)
(Dollars in millions)
1998 1997
-------- --------
Earnings before income taxes(1) $ 5,720 $ 6,035
Add:
Fixed charges, excluding capitalized interest 1,512 1,449
-------- --------
Earnings as adjusted $ 7,232 $ 7,484
======== ========
Fixed charges:
Interest expense 1,154 1,157
Capitalized interest 20 26
Portion of rental expense representative of
interest 358 292
-------- --------
Total fixed charges $ 1,532 $ 1,475
======== ========
Preferred stock dividends(2) 21 22
-------- --------
Combined fixed charges and preferred stock
dividends $ 1,553 $ 1,497
======== ========
Ratio of earnings to fixed charges 4.72 5.07
Ratio of earnings to combined fixed charges and
preferred stock dividends 4.66 5.00
(1) Earnings before income taxes excludes the company's share in the income
and losses of less-than-fifty percent-owned affiliates.
(2) Included in the ratio computation are preferred stock dividends of $15
million for the first nine months of 1998 and 1997, or $21 million and $22
million, respectively, representing the pre-tax earnings which would be
required to cover such dividend requirements based on the company's
effective tax rate for the nine months ended September 30, 1998 and 1997.
-1-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
IBM CORPORATION'S FINANCIAL STATEMENTS FOR THE NINE MONTHS ENDED
SEPTEMBER 30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 5,553
<SECURITIES> 316
<RECEIVABLES> 17,682
<ALLOWANCES> 0
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0
252
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</TABLE>
