AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 5, 2000
REGISTRATION NO. 333-32690
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INTERNATIONAL BUSINESS MACHINES CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 13-0871985
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
ARMONK, NEW YORK 10504
(914) 499-1900
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
LAWRENCE R. RICCIARDI, ESQ.
SENIOR VICE PRESIDENT & GENERAL COUNSEL
INTERNATIONAL BUSINESS MACHINES CORPORATION
ARMONK, NEW YORK 10504
(914) 499-1900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
SCOTT A. BARSHAY, ESQ.
CRAVATH, SWAINE & MOORE
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box: / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
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following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering: / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering: / /
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box: / /
<TABLE>
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CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED BE REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE(1)(2)
<S> <C> <C> <C> <C>
Common Stock, par value 1,674,110 shares $105.75 $177,037,132.50 $46,737.80
$0.20
</TABLE>
(1) Calculated pursuant to Rule 457(c), based upon the average of the high
and low prices of shares of common stock of IBM reported on the New York
Stock Exchange as of March 13, 2000.
(2) This amount was previously paid on March 16, 2000.
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<PAGE>
INTERNATIONAL BUSINESS MACHINES CORPORATION
1,674,110 Shares
of
COMMON STOCK
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International Business Machines Corporation may issue from time to
time up to 1,674,110 shares of its common stock in exchange for exchangeable
shares of IBM Acquisition Inc., a Canadian company and a wholly-owned
subsidiary of IBM. IBM Acquisition Inc. will issue the exchangeable shares to
shareholders of LGS Group Inc. who are Canadian residents and who elect to
receive the exchangeable shares in connection with the acquisition of LGS by
IBM Acquisition Inc. and IBM Acquisition II L.L.C., a Delaware limited
liability company of which IBM is the single member. Each exchangeable share
may be exchanged by its holder for one share of our common stock at any time.
Each exchangeable share that remains outstanding on April 5, 2010 will be
redeemed on that date for one share of common stock. The exchangeable shares
will be redeemed for common stock before April 5, 2010 if there are less
than 170,000 exchangeable shares outstanding that are not owned by us or our
affiliates. The exchangeable shares will also be redeemed for common stock
before April 5, 2010 if certain other events occur.
Our common stock trades on the New York Stock Exchange, the Pacific
Stock Exchange and the Chicago Stock Exchange under the symbol "IBM". On April
4, 2000, the last reported sale price of our common stock on the New York
Stock Exchange was $121.19 per share.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
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This Prospectus is dated April 5, 2000
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this prospectus
the information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
later information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference the following
documents filed by IBM with the SEC and any future filings made by IBM with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 until our offering is completed:
o Annual Report on Form 10-K for the year ended December 31,
1999, filed on March 13, 2000
o Registration Statement on Form S-4, filed on March 15, 2000
o Registration Statement on Form 8-A, filed on January 29, 1999
You may request a copy of these filings at no cost by writing to or
telephoning our transfer agent at the following address:
First Chicago Trust Company of New York
Mail Suite 4688
P.O. Box 2530
Jersey City, New Jersey 07303-2530
(201) 324-0405
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to provide you
with different information. We are not making an offer of these securities in
any state where the offer is not permitted. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of
any date other than the date on the front of the document.
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RISK FACTORS
Investors should consider carefully the following factors, in
addition to the other information contained in the prospectus, before
exchanging their exchangeable shares for the shares of IBM common stock
offered hereby.
The value of our patents and other intellectual property may be
impaired by competitors who misuse our intellectual property rights.
IBM owns or is licensed under a number of patents relating to its
products. Licenses under patents owned by IBM have been and are being granted
to others under reasonable terms and conditions. IBM protects its intellectual
property rights in a variety of ways. These protections may not prevent
competitors from independently developing products and services similar to or
duplicative of IBM's nor can there be any assurance that these protections
will adequately deter misappropriation or improper use of IBM's technology.
There can also be no assurances that IBM will be able to obtain from third
parties the licenses it needs in the future.
The failure of IBM's suppliers to deliver components, supplies and
raw material in sufficient quantities and in a timely manner could adversely
affect IBM's business.
IBM's businesses employ a wide variety of components, supplies and
raw materials from a substantial number of suppliers around the world. To
date, IBM has found that the components, supplies and raw materials necessary
for the manufacture, production and delivery of its products and services have
been available in the quantities required. Certain of IBM's businesses may
rely on a single or limited number of suppliers, although IBM makes every
effort to assure the alternative sources are available if the need arises.
Because of its size, IBM may not compete effectively in all areas of
its businesses.
IBM operates in businesses that are subject to intense competitive
pressures. IBM's businesses face a significant number of competitors, ranging
from Fortune 50 companies to an increasing number of relatively small, rapidly
growing and highly specialized organizations. IBM believes that its
combination of technology, performance, quality, reliability, price and
breadth of products and service offerings are important competitive factors.
Intense competitive pressures could affect prices or demand for IBM's products
and services, resulting in reduced profit margins and/or loss of market
opportunity. Unlike may of its competitors, IBM has a portfolio of businesses
while competing with companies that specialize in one or more of these product
lines. As a result, IBM may not fund or invest in certain of its businesses to
the same degree that its competitors do and these companies may have greater
financial, technical and marketing resources available to them than the
businesses of IBM against which they compete.
Economic and other changes in countries outside the United States
may affect IBM's businesses.
IBM operates in more than 150 countries worldwide and derives more
than half of its revenues from sales outside the United States. Changes in the
laws or policies of the countries in which IBM operates could affect its
business in that country and its results of operations. IBM's results of
operations could also be affected by economic changes in those countries and
by macroeconomic changes, including recessions and inflation. For example,
weakness in the Asian and Latin American economies had an adverse impact on
IBM's business in 1998.
The inability to successfully develop new products may adversely
affect IBM's businesses.
IBM's results of operations depend upon the continued successful
development and marketing of new and innovative products and services which
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require significant capital investments by IBM's various businesses and the
success of these products and services depends on their acceptance by
customers and business partners. Further, IBM's businesses are characterized
by rapid technological changes and corresponding shifts in customer demand,
resulting in unpredictable product transitions, shortened life cycles and an
increasing emphasis on being first to market with new products and services.
There can be no assurance that IBM will successfully introduce new products
and services, that these products and services will be accepted by customers,
or that IBM's businesses will recoup or realize a return on their capital
investments. In addition, from time to time IBM may experience difficulties or
delays in the development, production or marketing of new products and
services.
The inability to retain skilled personnel may adversely affect IBM's
businesses.
Much of the future success of IBM depends on the continued service
and availability of skilled personnel, including technical, marketing and
staff positions. Experienced personnel in the information technology industry
are in high demand and competition for their talents is intense. There can be
no assurance that IBM will be able to successfully retain and attract the key
personnel it needs.
THE COMPANY
IBM is a leading developer, manufacturer and supplier of advanced
information processing products, including computers and microelectronic
technology, software, networking systems and information technology-related
services. IBM was incorporated under the laws of the State of New York on June
15, 1911 as the Computing-Tabulating-Recording Co. (C-T-R), a consolidation of
the Computing Scale Co. of America, The Tabulating Machine Co., and the
International Time Recording Co. of New York. In 1924, C-T-R adopted the name
International Business Machines Corporation.
IBM is in the business of providing customer solutions through the
use of advanced information technology. IBM operates primarily in a single
industry utilizing several segments that create value by offering a variety of
solutions that include, either singularly or in some combination,
technologies, systems, products, services, software and financing. IBM employs
over 300,000 persons in more than 150 countries worldwide.
IBM offers its products through its global sales and distribution
organization. The sales and distribution organization has both a geographic
focus (in the Americas, Europe/Middle East/Africa, and Asia Pacific) and a
specialized and global industry focus. In addition, this organization includes
a global sales and distribution force devoted exclusively to small and medium
size businesses. IBM also offers its products through a variety of third party
distributors and resellers, as well as through its on-line channels.
Through its Global Services segment, IBM provides its customers with
services that include business and information technology consulting, business
transformational services, e-business services and full scope services such as
a strategic outsourcing.
USE OF PROCEEDS
Because the shares of common stock offered hereby will be issued
upon the exchange of exchangeable shares of IBM Acquisition, Inc., we will
receive no cash proceeds from the offering.
THE EXCHANGEABLE SHARES
The rights of holders of exchangeable shares of IBM Acquisition
Inc., including exchange rights, are described in our registration statement
on Form S-4, which was filed with the SEC on March 15, 2000 and is hereby
incorporated by reference.
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PLAN OF DISTRIBUTION
The common stock offered in this registration statement will be
issued in exchange for exchangeable shares of IBM Acquisition Inc., and no
broker, dealer or underwriter has been engaged in connection with this
offering. The exchangeable shares will be issued to shareholders of LGS who
are Canadian residents and elect to receive exchangeable shares in connection
with the acquisition of LGS by IBM Acquisition Inc. and IBM Acquisition II
L.L.C.
LEGAL OPINIONS
The legality of the common stock offered in this registration
statement will be passed upon by Andrew Bonzani, our Assistant Secretary and
Senior Counsel. Mr. Bonzani beneficially owns shares of IBM common stock and
has options to purchase shares of IBM common stock.
EXPERTS
The consolidated financial statements incorporated in this
prospectus by reference to our Annual Report on Form 10-K for the year ended
December 31, 1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Other Expenses of Issuance and Distribution.
The following statement sets forth the estimated amounts of
expenses, other than underwriting discounts, to be borne by us in connection
with the offering described in this Registration Statement:
Securities and Exchange Commission Registration Fee........... $46,737.80
Printing and Engraving Expenses............................... 0
Accounting Fees and Expenses.................................. 2,500.00
Legal Fees and Expenses....................................... 10,000.00
Listing Fee................................................... 0
Miscellaneous Expenses........................................ 0
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Total Expenses........................................... $59,237.80
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Indemnification of Directors And Officers.
Our By-Laws (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."
Our Certificate of Incorporation (Article ELEVEN) provides the
following:
"Pursuant to Section 402(b) of the Business Corporation Law of the
State of New York, the liability of the Corporation's directors to the
Corporation or its stockholders for damages for breach of duty as a director
shall be eliminated to the fullest extent permitted by the Business
Corporation Law of the State of New York, as it exists on the date hereof or
as it may hereafter be amended. No amendment to or repeal of this Article
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal."
With certain limitations, Sections 721 through 726 of the New York
Business Corporation Law permit a corporation to indemnify a director or
officer made a party to an action (i) by a corporation or in its right in
order to procure a judgment in its favor unless he shall have breached his
duties, or (ii) other than an action by or in the right of the corporation in
order to procure a judgment in its favor, if such director or officer acted in
good faith and in a manner he reasonably believed to be in or, in certain
cases not opposed to such corporation's interest and additionally, in criminal
actions, had no reasonable cause to believe his conduct was unlawful.
II-1
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In addition, we maintain directors' and officers' liability
insurance policies.
Exhibits.
5.1 Opinion of Andrew Bonzani as to the legality of the
Registrant's common stock being registered hereby.
23.1 Consent of Andrew Bonzani with respect to the legality of
the securities being registered (contained in Exhibit 5.1).
*23.2 Consent of PricewaterhouseCoopers LLP, independent public
accountants, with respect to the financial statements of the
Registrant.
*24.1 Powers of Attorney (included on p.II-3).
* Previously Filed.
Undertakings.
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 (other than as
provided in the proviso and instructions to Item 512(a) of Regulation S-K) (i)
to include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(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.
(4) 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 Securities Exchange Act of 1934 that
is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) 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 provisions described in Item 15
above, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person in the successful defense of any action, suit or
proceeding) is asserted by such officer, director 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
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appropriate jurisdiction the question of whether or not such indemnification
by it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, on the 4th day of April, 2000.
INTERNATIONAL BUSINESS MACHINES CORPORATION
By:
/s/ Andrew Bonzani
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Assistant Secretary, Senior Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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Chairman of the Board and
* Chief Executive Officer
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Louis V. Gerstner, Jr. April 4, 2000
Senior Vice President and
* Chief Financial Officer
- ----------------------- (Principal Financial Officer)
John R. Joyce April 4, 2000
* Vice President and Controller
- ----------------------- (Principal Accounting Officer)
Mark Loughridge April 4, 2000
*
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Cathleen Black Director April 4, 2000
*
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Kenneth I. Chenault Director April 4, 2000
*
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Nannerl O. Keohane Director April 4, 2000
*
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Charles F. Knight Director April 4, 2000
*
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Minoru Makihara Director April 4, 2000
*
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Lucio A. Noto Director April 4, 2000
*
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John B. Slaughter Director April 4, 2000
*
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Alex Trotman Director April 4, 2000
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*
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Lodewijk C. van Wachem Director April 4, 2000
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Charles M. Vest Director
*By:
/s/ Andrew Bonzani
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Andrew Bonzani
ATTORNEY-IN-FACT
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Exhibit 5.1
April 3, 2000
International Business Machines Corporation
New Orchard Road
Armonk, NY 10504
Ladies and Gentlemen:
I am Assistant Secretary and Senior 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-3 (the "Registration Statement") under the Securities Act of 1933 (the
"Securities Act") regarding the shares of common stock, par value $.20 per
share, of the Corporation (the "Shares") to be issued upon the exchange of the
exchangeable shares (the "Exchangeable Shares") of IBM Acquisition Inc.
I have reviewed such documents and records as I have deemed necessary or
appropriate to enable me to express an informed opinion with respect to the
matters covered hereby.
Based upon the foregoing, I am of the opinion that, when issued or sold upon the
exchange of the Exchangeable Shares, the Shares will be validly issued, fully
paid and nonassessable.
I hereby consent to the use of my name in the Registration Statement as counsel
who has passed upon the legality of the Shares, and to the use of this opinion
as part of the Registration Statement as required by Section 7 of the Securities
Act.
Very truly yours,
/s/ Andrew Bonzani
----------------------------------------
Andrew Bonzani, Esq.
Assistant Secretary and Senior Counsel
