As Filed with the Securities and Exchange Commission on December 9, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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INTERNATIONAL BUSINESS MACHINES
CORPORATION
(Exact name of registrant as specified in its charter)
New York 13-0871985
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
Armonk, New York 10504
(Address of Principal Executive Offices)
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Unison Software, Inc. 1991 Incentive Stock Option Plan
Unison Software, Inc. 1995 Stock Option Plan
Unison Software, Inc. 1993 Director Stock Option Plan
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John E. Hickey
Vice President and Secretary
International Business Machines Corporation
Armonk, New York 10504
(914) 499-1900
(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price per offering registration
to be registered registered share price fee
Common Stock, par
par value $.50 per
share 162,694[1] $69.10[2] $11,242,155.40[2] $3,316.44
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[1] Based on 1,174,688 shares subject to outstanding options
under the Unison Software, Inc. 1991 Incentive Stock Option
Plan, the Unison Software, Inc. 1995 Stock Option Plan and
the Unison Software, Inc. 1993 Director Stock Option Plan
(collectively, the "Unison Plans").
[2] Estimated solely for the purpose of calculating the registration
fee and based on a weighted average of the exercise price of options
issued under the Unison Plans outstanding as of the date hereof,
multiplied by a conversion factor to reflect the price at which such
options could be exercised to purchase shares of common stock of IBM
on the date hereof pursuant to the Merger Agreement.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference herein and
shall be deemed a part hereof:
(a) The Annual Report of International Business Machines
Corporation ("IBM") on Form 10-K for the fiscal year ended
December 31, 1996, filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act").
(b) All other reports filed by IBM pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31,
1996.
(c) The description of IBM's 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.
None.
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 any time."
The Certificate of Incorporation of IBM (Article Eleven) provides
the following:
"Pursuant to Section 402(b) of the Business Corporation
Law of the State of New York, the liability of the
Corporation's directors to the Corporation or its stockholders
for damages for breach of duty as a director shall be
eliminated to the fullest extent permitted by the Business
Corporation Law of the State of New York, as it exists on the
date hereof or as it may hereafter be amended. No amendment to
or repeal of this Article shall apply to or have any effect on
the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal."
With certain limitations, Sections 721 through 726 of the New York
Business Corporation Law permit a corporation to indemnify a
director or officer made a party to an action (i) by a corporation
or in its right in order to procure a judgment in its favor unless
he shall have breached his duties, or (ii) other than an action by
or in the right of the corporation in order to procure a judgment in
its favor, if such director or officer acted in good faith and in a
manner he reasonably believed to be in or, in certain cases not
opposed to such corporation's interest and additionally, in criminal
actions, had no reasonable cause to believe his conduct was
unlawful.
In addition, IBM maintains directors' and officers' liability
insurance policies.
Item 8. Exhibits.
Exhibit Number Description
5 The opinion, dated December 9, 1997, of David S.
Hershberg, Vice President and Assistant General
Counsel of IBM
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 Powers of attorney
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement to include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) to remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
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 9th day of December 1997.
INTERNATIONAL BUSINESS MACHINES
CORPORATION
By
/s/ JOHN E. HICKEY
(John E. Hickey, Vice President and Secretary)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities indicated on the 9th day of December 1997.
Signature Title
*
Louis V. Gerstner, Jr. Chairman of the Board of Directors and
Chief Executive Officer
(Principal Executive Officer)
*
Lawrence R. Ricciardi Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
*
John R. Joyce Controller
(Principal Accounting Officer)
*
Cathleen Black Director
*
Harold Brown Director
*
Juergen Dormann Director
*
Nannerl O. Keohane Director
*
Charles F. Knight Director
*
Lucio A. Noto Director
*
John B. Slaughter Director
*
Alex Trotman Director
*
Charles M. Vest Director
* By: /s/ John E. Hickey
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John E. Hickey
Attorney-in-Fact
EXHIBIT INDEX
EXHIBIT NO.
5 Opinion of David S. Hershberg, Vice President and
Assistant General Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 Powers of Attorney
December 9, 1997
International Business Machines Corporation
New Orchard Road
Armonk, NY 10504
Ladies and Gentlemen:
I am Vice President and Assistant General Counsel of International
Business Machines Corporation (herein called the "Corporation") and
an attorney duly admitted to practice in the State of New York. I am
familiar with the Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933 (the
"Securities Act") regarding the shares of Common Stock, par value
$.50 per share, of the Corporation (the "Shares") to be issued
pursuant to the Unison Software, Inc. 1991 Incentive Stock Option
Plan, the Unison Software, Inc. 1995 Stock Option Plan and the
Unison Software, Inc. 1993 Director Stock Option Plan (the "Plans").
I have reviewed such documents and records as I have deemed
necessary or appropriate to enable me to express an informed opinion
with respect to the matters covered hereby.
Based upon the foregoing, I am of the opinion that when issued or
sold in accordance with the terms of the Plans the Shares will be
validly issued, fully paid and nonassessable.
I hereby consent to the use of my name in the Registration Statement
as counsel who has passed upon the legality of the Shares, and to
the use of this opinion as part of the Registration Statement as
required by Section 7 of the Securities Act.
Very truly yours,
/s/ David S. Hershberg
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David S. Hershberg
Vice President and
Assistant General Counsel