As Filed with the Securities and Exchange Commission on January 27, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 Identification No.)
of incorporation or organization)
Armonk, New York 10504
(Address of Principal Executive Offices)
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Software Artistry, Inc.
Amended and Restated Incentive 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
Title of Amount Proposed maximum Proposed maximum
securities to be offering price per aggregate offering Amount of
to be registered registered share price registration fee
Common Stock, par value $.50 per share 426,000 [1] $23.95 [2] $10,202,700.00 [2] $3,010.00
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[1] Based on 1,768,275 shares subject to outstanding options under the
Software Artistry, Inc. Amended and Restated Incentive Stock Option Plan
(the "Software Artistry Plan").
[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 Software Artistry Plan 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
International Business Machines Corporation ("IBM") on the date hereof
pursuant to the Agreement and Plan of Merger dated as of December 18, 1997
among IBM, Hoosier Acquisition Corp., a wholly owned subsidiary of IBM and
Software Artistry, Inc.
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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 January 27, 1998, 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 27th day of January 1998.
INTERNATIONAL BUSINESS MACHINES
CORPORATION
By
/s/ JOHN E. HICKEY
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(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 27th day of January, 1998.
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 Vice President and 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
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