<PAGE>
As Filed with the Securities and Exchange Commission
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------
INTERNATIONAL BUSINESS MACHINES CORPORATION
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(Exact name of registrant as specified in its charter)
New York 13-0871985
- -------------------------- --------------
(State or other jurisdiction (I.R.S. Employer of
incorporation or organization) Identification No.)
One New Orchard Road
Armonk, New York 10504
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(Address of Principal Executive Offices)
IBM 2000 Employees Stock Purchase Plan
- --------------------------------------------------------------------------------
(Full Title of the Plan)
Andrew Bonzani, Esq.
Assistant Secretary and Senior Counsel
International Business Machines Corporation
One New Orchard Road
Armonk, New York 10504
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(Name and Address of Agent For Service)
(914) 499-1900
--------------
(Telephone Number, Including Area Code, of Agent For
Service)
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CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------
Title of Each Amount to be Proposed Proposed Amount of
Class of registered: maximum maximum Registration
Securities to offering aggregate fee:
be Registered: price per offering
share: price:
- ---------------------------------------------------------------------------
IBM Common 1 share ** $91.96* $91.96* $0.03
Stock ($0.20
par value per
share)
- ---------------------------------------------------------------------------
*Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h)(1) under the Securities Act of 1933, based upon 85%
of the highest and lowest prices of IBM Common Stock reported on the New York
Stock Exchange Composite Tape on May 4, 2000.
** Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus for the
IBM 2000 Employees Stock Purchase Plan also relates to an aggregate of
29,999,999 split-adjusted common shares of IBM Common Stock, which shares were
originally registered with the Commission on Form S-8, SEC File No. 33-60225. A
filing fee of $326,551.72 was originally paid at the time of the filing of such
registration statement. This Registration Statement also constitutes Post
Effective Amendment No. 1 with respect to the Registrant's Registration
Statement on Form S-8 (SEC File No. 33-60225). Additional details relating to
the carry forward by the Company of these 29,999,999 split-adjusted common
shares are set forth in the Company's Form 8-K dated May 5, 2000, as filed with
the Commission.
Pursuant to Rule 416 under the Securities Act of 1933, to the extent
additional shares of IBM Common Stock may be issued or issuable as a result of
stock splits or other distributions declared at any time by the IBM Board of
Directors while this registration statement is in effect, this registration
statement is hereby deemed to cover all of such additional common stock.
- -------------------------------------------------------
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities and Exchange
Commission are incorporated by reference herein and shall be deemed a part
hereof:
(a) The Annual Report of International Business Machines Corporation
("IBM") on Form 10-K for the fiscal year ended December 31, 1999, filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act").
(b) All other reports filed by IBM pursuant to Section 13(a) or 15(d)
of the Exchange Act since December 31, 1999.
(c) The description of IBM's common stock, contained in IBM's
registration statements filed pursuant to Section 12 of the Exchange Act, and
any amendment or report filed for the purpose of updating any such description.
All documents filed by IBM pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act, after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
The validity of the IBM common stock, par value $.20 per share,
offered hereby has been passed upon by David S. Hershberg, Esq., Vice President
and Assistant General Counsel of IBM. As of this date, Mr. Hershberg
beneficially
<PAGE>
owns shares of IBM common stock, par value $.20 per share, and also
has options to purchase additional shares of IBM common stock, par value $.20
per share.
Item 6. Indemnification of Directors and Officers.
The By-Laws of IBM (Article VI, Section 6) provide the following:
"The Corporation shall, to the fullest extent permitted by applicable
law as in effect at any time, indemnify any person made, or threatened to be
made, a party to an action or proceeding whether civil or criminal (including an
action or proceeding by or in the right of the Corporation or any other
corporation of any type or kind, domestic or foreign, or any partnership, joint
venture, trust, employee benefit plan or other enterprise, for which any
director or officer of the Corporation served in any capacity at the request of
the Corporation), by reason of the fact that such person or such person's
testator or intestate was a director or officer of the Corporation, or served
such other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise in any capacity, against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred as a result of such action or proceeding, or any appeal
therein. Such indemnification shall be a contract right and shall include the
right to be paid advances of any expenses incurred by such person in connection
with such action, suit or proceeding, consistent with the provisions of
applicable law in effect at any time. Indemnification shall be deemed to be
`permitted' within the meaning of the first sentence hereof if it is not
expressly prohibited by applicable law as in effect at the time."
The Certificate of Incorporation of IBM (Article Eleven) provides the following:
"Pursuant to Section 402(b) of the Business Corporation Law of the
State of New York, the liability of the Corporation's directors to the
Corporation or its stockholders for damages for breach of duty as a director
shall be eliminated to the fullest extent permitted by the Business Corporation
Law of the State of New York, as it exists on the date hereof or as it may
hereafter be amended. No amendment to or repeal of this Article shall apply to
or have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal."
<PAGE>
With certain limitations, Sections 721 through 726 of the New York Business
Corporation Law permit a corporation to indemnify a director or officer made a
party to an action (i) by a corporation or in its right in order to procure a
judgment in its favor unless he shall have breached his duties, or (ii) other
than an action by or in the right of the corporation in order to procure a
judgment in its favor, if such director or officer acted in good faith and in a
manner he reasonably believed to be in or, in certain cases not opposed to such
corporation's interest and additionally, in criminal actions, had no reasonable
cause to believe his conduct was unlawful.
In addition, IBM maintains directors' and officers' liability insurance
policies.
Item 8. Exhibits.
Exhibit
Number Description
- ------ ------------
4 IBM 2000 Employees Stock Purchase Plan, incorporated by reference
to Appendix A of the Company's 2000 Proxy Statement, dated March
13, 2000, on file with the Commission.
5 The opinion, dated May 8, 2000, of David S. Hershberg, Esq.,
Vice President and Assistant General Counsel of IBM
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24.1 Powers of Attorney
24.2 Resolutions of the IBM Board of Directors relating to IBM 2000
Employees Stock Purchase Plan
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
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(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the town of North Castle, State of New York, on the 8th day of
May, 2000.
INTERNATIONAL BUSINESS MACHINES CORPORATION
By: /s/ Andrew Bonzani
-------------------------------
(Andrew Bonzani, Esq., Assistant
Secretary and Senior Counsel)
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on the 8th day of May, 2000.
Signature Title
- --------- -----
*
- ---------------------- Chairman of the Board of
Louis V. Gerstner, Jr. Directors and Chief Executive
Officer (Principal Executive Officer)
*
- ---------------------- Senior Vice President and
John R. Joyce Chief Financial Officer
(Principal Financial Officer)
*
- ---------------------- Vice President and Controller
Mark Loughridge
*
- ---------------------- Director
Cathleen Black
*
- ---------------------- Director
Kenneth I. Chenault
*
- ---------------------- Director
Juergen Dormann
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*
--------------------- Director
Nannerl O. Keohane
*
- ---------------------- Director
Charles F. Knight
*
- --------------------- Director
Minoru Makihara
*
- -------------------- Director
Lucio A. Noto
*
- -------------------- Director
John B. Slaughter
*
- -------------------- Director
Alex Trotman
*
- -------------------- Director
Lodewijk C. van Wachem
*The undersigned, by signing his name hereto, does hereby execute this
Registration Statement as of this date pursuant to powers of attorney filed as
exhibits to this Registration Statement.
by: /s/ ANDREW BONZANI
------------------
Andrew Bonzani, Esq.
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
EXHIBIT NO.
4 IBM 2000 Employees Stock Purchase Plan (incorporated by reference to
Appendix A of the Company's 2000 Proxy Statement dated March 13,
2000, on file with the Commission)
5 Opinion of David S. Hershberg, Esq., Vice President and Assistant
General Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24.1 Powers of Attorney
24.2 Resolutions of the IBM Board of Directors
relating to IBM 2000 Employees Stock Purchase Plan
<PAGE>
EXHIBIT 5
May 8, 2000
International Business Machines Corporation
New Orchard Road
Armonk, New York 10504
Ladies and Gentlemen:
I am a Vice President and Assistant General Counsel of International Business
Machines Corporation (herein called the "Corporation") and an attorney duly
admitted to practice in the State of New York. I am familiar with the
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933 (the "Securities Act") regarding the 30,000,000 shares of
common stock, par value $.20 per share, of the Corporation (the "Shares") to be
issued pursuant to the IBM 2000 Employees Stock Purchase Plan (the "Plan").
I, together with competent members of my legal staff working under my direct
supervision and control, have reviewed such documents and records as I have
deemed necessary or appropriate to enable me to express an informed opinion with
respect to the matters covered hereby.
Based upon the foregoing, I am of the opinion that, when issued or sold in
accordance with the terms of the Plan, the Shares will be validly issued, fully
paid and nonassessable.
I hereby consent to the use of my name in the Registration Statement as the
legal counsel who has passed upon the legality of the Shares, as well as to the
use of this legal opinion as part of the Registration Statement, as required by
Section 7 of the Securities Act, as amended.
Very truly yours,
/s/ DAVID S. HERSHBERG
----------------------
David S. Hershberg
Vice President and
Assistant General Counsel
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 19, 2000 relating to the
consolidated financial statements, which appears in the 1999 Annual Report to
Stockholders of International Business Machines Corporation which is
incorporated by reference in International Business Machines Corporation's
Annual Report on Form 10-K for the year ended December 31, 1999. We also consent
to the incorporation by reference of our report dated January 19, 2000 relating
to the Financial Statement Schedule, which appears in such Annual Report on
Form 10-K.
/s/ PRICEWATERHOUSECOOPERS LLP
- ------------------------------
PricewaterhouseCoopers LLP
New York, New York
May 8, 2000
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY OF LOUIS V. GERSTNER, JR.
KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned Chairman of
the Board of Directors and Chief Executive Officer of International Business
Machines Corporation, a New York corporation (the "Corporation"), which is
about to file with the Securities and Exchange Commission (the "SEC"),
Washington, D.C., under the provisions of the Securities Act of 1933 one or
more Registration Statements on Form S-8, or other appropriate Form, for
shares of capital stock of the Corporation or other interests issuable under
the IBM 2000 Employees Stock Purchase Plan, hereby constitute and appoint
John R. Joyce, Lawrence R. Ricciardi, Mark Loughridge, Walter S. Berman,
Daniel E. O'Donnell and Andrew Bonzani, and each of them, my true and lawful
attorneys-in-fact and agents, with full power to act, together or each
without the others, for me and in my name, place and stead, in any and all
capacities, to sign, or cause to be signed electronically, any and all of
said Registration Statements (which Registration Statements may constitute
post-effective amendments to registration statements previously filed with
the SEC) and any and all amendments to the aforementioned Registration
Statements, and to file said Registration Statements and amendments thereto
so signed with all exhibits thereto, and any and all other documents in
connection therewith, with the SEC, hereby granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform any and all acts and things requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed this Power of
Attorney as of this 29th day of February, 2000.
/s/ LOUIS V. GERSTNER, JR.
--------------------------
Louis V. Gerstner, Jr.
Chairman of the Board of Directors
and Chief Executive Officer
<PAGE>
POWER OF ATTORNEY OF JOHN R. JOYCE
KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned Senior
Vice President and Chief Financial Officer of International Business
Machines Corporation, a New York corporation (the "Corporation"), which is
about to file with the Securities and Exchange Commission (the "SEC"),
Washington, D.C., under the provisions of the Securities Act of 1933 one or
more Registration Statements on Form S-8, or other appropriate Form, for
shares of capital stock of the Corporation or other interests issuable under
the IBM 2000 Employees Stock Purchase Plan, hereby constitute and appoint
Louis V. Gerstner, Lawrence R. Ricciardi, Mark Loughridge, Walter S. Berman,
Daniel E. O'Donnell and Andrew Bonzani, and each of them, my true and lawful
attorneys-in-fact and agents, with full power to act, together or each
without the others, for me and in my name, place and stead, in any and all
capacities, to sign, or cause to be signed electronically, any and all of
said Registration Statements (which Registration Statements may constitute
post-effective amendments to registration statements previously filed with
the SEC) and any and all amendments to the aforementioned Registration
Statements, and to file said Registration Statements and amendments thereto
so signed with all exhibits thereto, and any and all other documents in
connection therewith, with the SEC, hereby granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform any and all acts and things requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed this Power of
Attorney as of this 29th day of February, 2000.
/s/ JOHN R. JOYCE
-----------------
John R. Joyce
Senior Vice President and
Chief Financial Officer
<PAGE>
POWER OF ATTORNEY OF MARK LOUGHRIDGE
KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned Vice
President and Controller of International Business Machines Corporation, a
New York corporation (the "Corporation"), which is about to file with the
Securities and Exchange Commission (the "SEC"), Washington, D.C., under the
provisions of the Securities Act of 1933 one or more Registration Statements
on Form S-8, or other appropriate Form, for shares of capital stock of the
Corporation or other interests issuable under the IBM 2000 Employees Stock
Purchase Plan, hereby constitute and appoint Louis V. Gerstner, Jr., John R.
Joyce, Lawrence R. Ricciardi, Walter S. Berman, Daniel E. O'Donnell and
Andrew Bonzani, and each of them, my true and lawful attorneys-in-fact and
agents, with full power to act, together or each without the others, for me
and in my name, place and stead, in any and all capacities, to sign, or cause
to be signed electronically, any and all of said Registration Statements
(which Registration Statements may constitute post-effective amendments to
registration statements previously filed with the SEC) and any and all
amendments to the aforementioned Registration Statements, and to file said
Registration Statements and amendments thereto so signed with all exhibits
thereto, and any and all other documents in connection therewith, with the
SEC, hereby granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform any and all acts and things
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed this Power of
Attorney as of this 29th day of February, 2000.
/s/ MARK LOUGHRIDGE
-------------------
Mark Loughridge
Vice President and
Controller
<PAGE>
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned Director of
International Business Machines Corporation, a New York corporation (the
"Corporation"), which is about to file with the Securities and Exchange
Commission (the "SEC"), Washington, D.C., under the provisions of the
Securities Act of 1933 one or more Registration Statements on Form S-8, or
other appropriate Form, for shares of capital stock of the Corporation or
other interests issuable under the IBM 2000 Employees Stock Purchase Plan,
hereby constitute and appoint Louis V. Gerstner, Jr., John R. Joyce, Lawrence
R. Ricciardi, Mark Loughridge, Walter S. Berman, Daniel E. O'Donnell and
Andrew Bonzani, and each of them, my true and lawful attorneys-in-fact and
agents, with full power to act, together or each without the others, for me
and in my name, place and stead, in any and all capacities, to sign, or cause
to be signed electronically, any and all of said Registration Statements
(which Registration Statements may constitute post-effective amendments to
registration statements previously filed with the SEC) and any and all
amendments to the aforementioned Registration Statements, and to file said
Registration Statements and amendments thereto so signed with all exhibits
thereto, and any and all other documents in connection therewith, with the
SEC, hereby granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform any and all acts and things
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as I might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I, the undersigned, have executed this Power of
Attorney as of this 29th day of February, 2000.
/s/ CATHLEEN BLACK
------------------
Director
/s/ KENNETH I. CHENAULT
-----------------------
Director
/s/ JUERGEN DORMANN
-------------------
Director
/s/ NANNERL O. KEOHANE
----------------------
Director
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/s/ CHARLES F. KNIGHT
---------------------
Director
/s/ MINORU MAKIHARA
-------------------
Director
/s/ LUCIO A. NOTO
-----------------
Director
/s/ JOHN B. SLAUGHTER
---------------------
Director
/s/ ALEX TROTMAN
----------------
Director
/s/ LODEWIJK C. VAN WACHEM
--------------------------
Director
<PAGE>
EXHIBIT 24.2
INTERNATIONAL BUSINESS MACHINES CORPORATION
CERTIFICATE OF THE ASSISTANT SECRETARY
I, Andrew Bonzani, the undersigned Assistant Secretary of International
Business Machines Corporation, a New York Corporation, do hereby certify as
follows:
Attached hereto as Exhibit A is a true copy of the resolutions adopted by
the Board of Directors of International Business Machines Corporation at its
February 29, 2000 meeting, approving the IBM 2000 Employees Stock Purchase Plan
as presented, and authorizing the use of 30,000,000 shares of IBM common stock
thereunder.
IN WITNESS WHEREOF, I have executed this certificate as of this 8th day of
May 2000.
By: /s/ ANDREW BONZANI
-----------------------
Andrew Bonzani
Assistant Secretary
<PAGE>
EXHIBIT A
RESOLVED, that this Board of Directors hereby approves the IBM 2000
Employees Stock Purchase Plan (the "Plan") as presented to its meeting today and
recommends submission of said Plan to stockholders for their adoption of the
Plan at the April 25, 2000, Annual Meeting;
RESOLVED, that, subject to the adoption of the Plan by stockholders, the
reservation and issuance of 30 million shares of authorized but unissued IBM
common stock pursuant to the Plan is authorized;
RESOLVED, that the issuance of fractional shares, in uncertificated form,
to effect share transfers to the Plan participants in accordance with the Plan,
as presented today, and in accordance with Section 509 of the Business
Corporation Law of the State of New York be, and it hereby is, authorized and
approved; and
RESOLVED FURTHER, that, subject to the approval of stockholders, the 2000
Plan shall become effective upon July 1, 2000, except that the Committee's power
to amend the Plan will be effective immediately upon approval by stockholders.
