Exhibit V
BY-LAWS
of
INTERNATIONAL BUSINESS MACHINES CORPORATION
Adopted April 29, 1958
As Amended Through
February 1, 1995
[February 1, 1995] -1-
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.......................... 3
SEC. 9. List of Stockholders............ 4
SEC. 10. Inspectors of Election.......... 4
ARTICLE III
BOARD OF DIRECTORS
SEC. 1. General Powers.................. 5
SEC. 2. Number; Qualifications;
Election; Term of
Office......................... 5
SEC. 3. Place of Meetings............... 5
SEC. 4. First Meeting................... 5
SEC. 5. Regular Meetings................ 5
SEC. 6. Special Meetings................ 5
SEC. 7. Notice of Meetings.............. 5
SEC. 8. Quorum and Manner of
Acting......................... 6
SEC. 9. Organization.................... 6
SEC. 10. Resignations.................... 6
SEC. 11. Vacancies....................... 6
SEC. 12. Retirement of
Directors...................... 6
[February 1, 1995] -2-
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
SEC. 1. Executive Committee............... 7
SEC. 2. Powers of the Executive
Committee........................ 7
SEC. 3. Meetings of the Executive
Committee........................ 7
SEC. 4. Quorum and Manner of
Acting of the Executive
Committee........................ 8
SEC. 5. Other Committees.................. 8
SEC. 6. Changes in Committees;
Resignations; Removals;
Vacancies........................ 9
ARTICLE V
OFFICERS
SEC. 1. Number and Qualifications......... 9
SEC. 2. Resignations...................... 9
SEC. 3. Removal........................... 10
SEC. 4. Vacancies......................... 10
SEC. 5. Chairman of the Board............. 10
SEC. 6. Vice Chairman of the
Board............................ 10
SEC. 7. President......................... 10
SEC. 8. Designated Officers............... 11
SEC. 9. Executive Vice
Presidents, Senior Vice
Presidents and Vice
Presidents....................... 11
SEC. 10. Treasurer......................... 11
SEC. 11. Secretary......................... 12
SEC. 12. Controller........................ 13
SEC. 13. Compensation...................... 13
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS,
BANK ACCOUNTS, ETC.
SEC. 1. Execution of Contracts............ 13
SEC. 2. Loans............................. 13
SEC. 3. Checks, Drafts, etc............... 14
SEC. 4. Deposits.......................... 14
SEC. 5. General and Special Bank
Accounts......................... 14
SEC. 6. Indemnification................... 14
[February 1, 1995] -3-
ARTICLE VII
SHARES
SEC. 1. Stock Certificates................ 15
SEC. 2. Books of Account and
Record of
Stockholders..................... 15
SEC. 3. Transfers of Stock................ 15
SEC. 4. Regulations....................... 16
SEC. 5. Fixing of Record Date............. 16
SEC. 6. Lost, Destroyed or Mutilated
Certificates.................... 16
SEC. 7. Inspection of Records............. 17
SEC. 8. Auditors.......................... 17
ARTICLE VIII
OFFICES
SEC. 1. Principal Office.................. 17
SEC. 2. Other Offices..................... 17
ARTICLE IX
Waiver of Notice.............................. 17
ARTICLE X
Fiscal Year.................................,, 18
ARTICLE XI
Seal.......................................... 18
ARTICLE XII
Amendments.................................... 18
[February 1, 1995] -4-
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 meeting
[February 1, 1995] -1-
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 in writing and 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 either be served
personally upon, or sent by mail, postage prepaid, 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 fifty 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.
[February 1, 1995] -2-
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. The chairman of
the meeting shall determine all matters relating to the efficient conduct
of the meeting, including but not limited to the maintenance of order and
decorum.
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
[February 1, 1995] -3-
(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 an instrument in writing, subscribed by such stockholder
or by the stockholder's attorney thereunto duly authorized and delivered 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.
[February 1, 1995] -4-
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 fourteen, 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
[February 1, 1995] -5-
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.
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,
[February 1, 1995] -6-
provided, however, that such 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
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Executive Committee, 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
[February 1, 1995] -8-
emergency which renders the Board 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.
[February 1, 1995] -9-
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
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duties and functions and exercise all the powers of the Chairman of the
Board.
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;
[February 1, 1995] -11-
(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.
[February 1, 1995] -12-
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
[February 1, 1995] -13-
bank, trust company or other 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 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
[February 1, 1995] -14-
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. 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. The certificates representing shares 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 or
accompanied by a duly executed stock transfer power and the payment of all
[February 1, 1995] -15-
taxes thereon. The person in whose name shares of stock shall stand on the
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 certificates for 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 fifty 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 fifty
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
[February 1, 1995] -16-
issue any such new certificate, except pursuant to legal proceedings under
the laws of the State of New York.
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 in writing by the person or persons entitled to said notice or
[February 1, 1995] -17-
entitled to participate in 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; provided,
however, that if any By-law regulating an impending election of directors
is adopted or amended or repealed by the Board, there shall be set forth in
the notice of the next meeting of the stockholders for the election of
directors the By-law so adopted or amended or repealed, together with a
concise statement of the changes made.
[February 1, 1995] -18-
INTERNATIONAL BUSINESS
MACHINES CORPORATION
I, the undersigned, Secretary of International Business Machines
Corporation, do hereby certify that the foregoing is a true and complete
copy of the By-laws of said 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 .
....................
Secretary
[February 1, 1995] -19-
EXHIBIT IV
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND SUBSIDIARY COMPANIES
ADDITIONAL EXHIBITS
A supplemental Consolidated Statement of Operations schedule has been
provided for informational purposes only, to exclude the effects of the Federal
Systems Company (FSC) sale and a change in software amortization periods adopted
in the first quarter of 1994. The 1993 results exclude FSC results,
restructuring charges, and the effect of implementing Statement of Financial
Accounting Standards 112, "Employers' Accounting for Postemployment Benefits."
This supplemental statement is shown in Exhibit IVa.
The sale of FSC is discussed on page 47 of IBM's 1994 Annual Report to
Stockholders, while the software change is discussed on pages 38 and 39.
Restructuring charges are discussed on pages 60 and 61, while the accounting
change is discussed on page 54.
EXHIBIT IV(A)
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND SUBSIDIARY COMPANIES
SUPPLEMENTAL CONSOLIDATED STATEMENT OF OPERATIONS*
1994 AND 1993
1994+ 1993+
------- -------
(DOLLARS IN
MILLIONS EXCEPT
PER SHARE AMOUNTS)
Revenue:
Hardware sales.......................................... $32,344 $30,337
Software................................................ 11,346 10,953
Services................................................ 9,715 7,686
Maintenance............................................. 7,222 7,295
Rentals and financing................................... 3,425 4,166
------- -------
64,052 60,437
Cost:
Hardware sales.......................................... 21,300 20,447
Software................................................ 4,384 4,310
Services................................................ 7,769 6,418
Maintenance............................................. 3,635 3,545
Rentals and financing................................... 1,384 1,738
------- -------
38,472 36,458
Gross Profit.............................................. 25,580 23,979
Operating expenses:
Selling, general and administrative..................... 16,298 18,272
Research, development and engineering................... 4,363 5,558
------- -------
Operating income (loss)................................... 4,919 149
Other income, principally interest........................ 1,377 1,108
Interest expense.......................................... 1,227 1,273
------- -------
Earnings (loss) before income taxes....................... 5,069 (16)
Provision (benefit) for income taxes...................... 2,104 80
------- -------
Net earnings (loss)....................................... 2,965 (96)
Preferred stock dividends................................. 84 47
Net earnings (loss) applicable to common shareholders..... $ 2,881 $ (143)
------- -------
------- -------
Net earnings (loss) per share common stock................ $ 4.92 $ (.25)
------- -------
------- -------
Average number of common shares outstanding (M's)......... 585.0 573.2
- ------------
* See text in Exhibit IV
+ Unaudited