SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERNATIONAL BUSINESS MACHINES CORPORATION
(Exact name of registrant as specified in its Charter)
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New York
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13-0871985
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NEW ORCHARD ROAD
ARMONK, NEW YORK 10504
(Address of Principal Executive Offices)
IBM 2014 EMPLOYEES STOCK PURCHASE PLAN
(Full Title of the Plan)
Michelle H. Browdy, Esq.
Vice President, Assistant General Counsel and Secretary
International Business Machines Corporation
Corporate Legal Department
New Orchard Road
ARMONK, NEW YORK 10504
(Name and Address of Agent For Service)
(914) 499-1900
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
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Amount to
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Proposed Maximum
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Proposed Maximum
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Amount of
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IBM Common Stock $0.20 par value |
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25,000,000 shares |
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172.65 |
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4,316,250,000 |
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555,933.00 |
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** Estimated solely for the purpose of determining the registration fee in accordance with Rules 457(h)(1) under the Securities Act of 1933, based on 95% of the average of the highest and lowest prices of IBM Common Stock reported on the New York Stock Exchange Composite Tape on June 12, 2014.
Pursuant to Rule 416 under the Securities Act of 1933, to the extent additional shares of IBM Common Stock may be issued or issuable as a result of a stock split or other distribution declared at any time by the Board of Directors while this registration statement is in effect, this registration statement is hereby deemed to cover all of such additional common stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and Exchange Commission are incorporated by reference herein and shall be deemed a part hereof:
(a) The Annual Report of International Business Machines Corporation (“IBM”) on Form 10-K for the fiscal year ended December 31, 2013, 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, 2013.
(c) The description of IBM’s common stock, contained in IBM’s registration statements filed pursuant to Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating any such description.
All documents filed by IBM pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the IBM common stock, par value $.20 per share, offered hereby has been passed upon by Michelle H. Browdy, Vice President, Assistant General Counsel and Secretary of IBM. As of the date hereof, Ms. Browdy beneficially owns shares and other interests in IBM’s common stock, par value $.20 per share.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of IBM (Article VI, Section 6) provide the following:
The Corporation shall, to the fullest extent permitted by applicable law as in effect at any time, indemnify any person made, or threatened to be made, a party to an action or proceeding whether civil or criminal (including an action or proceeding by or in the right of the Corporation or any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, for which any director or officer of the Corporation served in any capacity at the request of the Corporation), by reason of the fact that such person or such person’s testator or intestate was a director or officer of the Corporation, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein. Such indemnification shall be a contract right and shall include the right to be paid advances of any expenses incurred by such person in connection with such action, suit or proceeding, consistent with the provisions of applicable law in effect at any time. Indemnification shall be deemed to be `permitted’ within the meaning of the first sentence hereof if it is not expressly prohibited by applicable law as in effect at the time.
The Certificate of Incorporation of IBM (Article Eleven) provides the following:
Pursuant to Section 402(b) of the Business Corporation Law of the State of New York, the liability of the Corporation’s directors to the Corporation or its stockholders for damages for breach of duty as a director shall be eliminated to the fullest extent permitted by the Business Corporation Law of the State of New York, as it exists on the date hereof or as it may hereafter be amended. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.
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.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
(2) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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, the undersigned, thereunto duly authorized, in the town of North Castle, State of New York, on the 13th day of June, 2014.
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INTERNATIONAL BUSINESS MACHINES CORPORATION |
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BY: |
/S/ MICHELLE H. BROWDY |
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(MICHELLE H. BROWDY, ESQ., VICE PRESIDENT, ASSISTANT GENERAL COUNSEL AND SECRETARY) |
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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 13 th day of June, 2014.
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Director |
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Andrew N. Liveris |
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Director |
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W. James McNerney, Jr. |
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Director |
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James W. Owens |
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Director |
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Joan E. Spero |
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Director |
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Sidney Taurel |
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*The undersigned, by signing her name hereto, does hereby execute this Registration Statement pursuant to powers of attorney filed as exhibits to this Registration Statement.
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BY: |
/S/ MICHELLE H. BROWDY |
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MICHELLE H. BROWDY, ESQ.
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EXHIBIT INDEX |
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4 |
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IBM 2014 Employees Stock Purchase Plan, incorporated by reference to Appendix A of the Company’s 2014 Proxy Statement, dated March 10, 2014, on file with the Commission. |
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5 |
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Opinion of Michelle H. Browdy, Esq., Vice President, Assistant General Counsel and Secretary |
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23.1 |
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Consent of Independent Accountants (PricewaterhouseCoopers LLP) |
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23.2 |
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Consent of Counsel (included in Exhibit 5) |
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24.1 |
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Powers of Attorney |
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24.2 |
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Certified Resolutions of the IBM Board of Directors authorizing execution of this registration statement by Power of Attorney |
EXHIBIT 5
INTERNATIONAL BUSINESS MACHINES CORPORATION
Office of the Vice President, Assistant General Counsel and Secretary
Armonk, New York
10504
June 13, 2014
International Business Machines Corporation
New Orchard Road
Armonk, NY 10504
Ladies and Gentlemen:
I am the Vice President, Assistant General Counsel and Secretary 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 $.20 per share, of the Corporation (the “Shares”) to be issued pursuant to the IBM 2014 Employees Stock Purchase Plan (the “Plan”).
I, working together with members of the Corporation’s legal department, have reviewed such documents and records as I have deemed necessary or appropriate to enable me to express an informed and reasoned legal opinion with respect to the matters covered hereby.
Based upon the foregoing, I am of the opinion that, when issued or sold in accordance with the terms of the Plan, the Shares will be duly authorized, validly issued, fully paid and non-assessable.
I hereby consent to the use of my name in the Registration Statement as the legal counsel who has passed upon the legality of the Shares, as well as to the use of this legal opinion as part of the Registration Statement, as an Exhibit to the Registration Statement.
Very truly yours,
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/s/ MICHELLE H. BROWDY |
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MICHELLE H. BROWDY, ESQ. |
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VICE PRESIDENT, ASSISTANT GENERAL |
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COUNSEL AND SECRETARY |
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EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 25, 2014, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting, which appears in the 2013 Annual Report to Shareholders, which is incorporated in the Annual Report on Form 10-K for the year ended December 31, 2013.
We also consent to the incorporation by reference of our report dated February 25, 2014, relating to the Financial Statement Schedule which appears in the Annual Report on Form 10-K for the year ended December 31, 2013.
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/s/ PRICEWATERHOUSECOOPERS LLP |
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PricewaterhouseCoopers LLP |
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New York, New York |
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June 13, 2014 |
Exhibit 24.1
POWERS OF ATTORNEY
POWER OF ATTORNEY OF VIRGINIA M. ROMETTY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned Chairman of the Board, President and Chief Executive Officer of International Business Machines Corporation, a New York corporation (the “Corporation”), which is to file with the Securities and Exchange Commission (the “SEC”), Washington, D.C., under the provisions of the Securities Act of 1933 one or more Registration Statements on Form S-8, or other appropriate Form, for up to 25,000,000 shares of capital stock of the Corporation or other interests issuable under the Corporation’s 2014 Employees Stock Purchase Plan, hereby constitutes and appoints Michelle H. Browdy, James J. Kavanaugh, Martin J. Schroeter, Stanley J. Sutula III, and Robert C. Weber, as true and lawful attorneys-in-fact and agents for the undersigned, and each of them with full power to act without the others, for the undersigned and in the name, place and stead of the undersigned, in any and all capacities, to sign, or cause to be signed electronically, any and all of said Registration Statements (which Registration Statements may constitute post-effective amendments to registration statements previously filed with the SEC) and any and all amendments to the aforementioned Registration Statements, and to file said Registration Statements and amendments thereto so signed with all exhibits thereto, and any and all other documents in connection therewith, with the SEC, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof. This Power of Attorney may only be revoked by a written document executed by the undersigned that expressly revokes this power by referring to the date and subject hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of this 25th day of February 2014.
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/s/ Virginia M. Rometty |
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Virginia M. Rometty |
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Chairman of the Board, President |
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and Chief Executive Officer |
POWER OF ATTORNEY OF MARTIN J. SCHROETER
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned Senior Vice President and Chief Financial Officer, Finance Enterprise and Transformation of International Business Machines Corporation, a New York corporation (the “Corporation”), which is to file with the Securities and Exchange Commission (the “SEC”), Washington, D.C., under the provisions of the Securities Act of 1933 one or more Registration Statements on Form S-8, or other appropriate Form, for up to 25,000,000 shares of capital stock of the Corporation or other interests issuable under the Corporation’s 2014 Employees Stock Purchase Plan, hereby constitutes and appoints, Michelle H. Browdy, James J. Kavanaugh, Virginia M. Rometty, Stanley J. Sutula III, and Robert C. Weber, as true and lawful attorneys-in-fact and agents for the undersigned, and each of them with full power to act without the others, for the undersigned and in the name, place and stead of the undersigned, in any and all capacities, to sign, or cause to be signed electronically, any and all of said Registration Statements (which Registration Statements may constitute post-effective amendments to registration statements previously filed with the SEC) and any and all amendments to the aforementioned Registration Statements, and to file said Registration Statements and amendments thereto so signed with all exhibits thereto, and any and all other documents in connection therewith, with the SEC, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof. This Power of Attorney may only be revoked by a written document executed by the undersigned that expressly revokes this power by referring to the date and subject hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of this 25th day of February 2014.
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/s/ Martin J. Schroeter |
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Martin J. Schroeter |
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Senior Vice President and |
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Chief Financial Officer, |
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Enterprise Transformation |
POWER OF ATTORNEY OF JAMES J. KAVANAUGH
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned Vice President and Controller of International Business Machines Corporation, a New York corporation (the “Corporation”), which is to file with the Securities and Exchange Commission (the “SEC”), Washington, D.C., under the provisions of the Securities Act of 1933 one or more Registration Statements on Form S-8, or other appropriate Form, for up to 25,000,000 shares of capital stock of the Corporation or other interests issuable under the Corporation’s 2014 Employees Stock Purchase Plan, hereby constitutes and appoints Michelle H. Browdy, Virginia M. Rometty, Martin J. Schroeter, Stanley J. Sutula III, and Robert C. Weber, as true and lawful attorneys-in-fact and agents for the undersigned, and each of them with full power to act without the others, for the undersigned and in the name, place and stead of the undersigned, in any and all capacities, to sign, or cause to be signed electronically, any and all of said Registration Statements (which Registration Statements may constitute post-effective amendments to registration statements previously filed with the SEC) and any and all amendments to the aforementioned Registration Statements, and to file said Registration Statements and amendments thereto so signed with all exhibits thereto, and any and all other documents in connection therewith, with the SEC, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof. This Power of Attorney may only be revoked by a written document executed by the undersigned that expressly revokes this power by referring to the date and subject hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of this 25th day of February 2014.
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/s/ James J. Kavanaugh |
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James J. Kavanaugh |
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Vice President and Controller |
POWER OF ATTORNEY OF IBM DIRECTOR
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned director of International Business Machines Corporation, a New York corporation (the “Corporation”), which is to file with the Securities and Exchange Commission (the “SEC”), Washington, D.C., under the provisions of the Securities Act of 1933 one or more Registration Statements on Form S-8, or other appropriate Form, for up to 25,000,000 shares of capital stock of the Corporation or other interests issuable under the Corporation’s 2014 Employees Stock Purchase Plan, hereby constitutes and appoints, Michelle H. Browdy, James J. Kavanaugh, Virginia M. Rometty, Martin J. Schroeter, Stanley J. Sutula III, and Robert C. Weber, as true and lawful attorneys-in-fact and agents for the undersigned, and each of them with full power to act without the others, for the undersigned and in the name, place and stead of the undersigned, in any and all capacities, to sign, or cause to be signed electronically, any and all of said Registration Statements (which Registration Statements may constitute post-effective amendments to registration statements previously filed with the SEC) and any and all amendments to the aforementioned Registration Statements, and to file said Registration Statements and amendments thereto so signed with all exhibits thereto, and any and all other documents in connection therewith, with the SEC, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof. This Power of Attorney may only be revoked by a written document executed by the undersigned that expressly revokes this power by referring to the date and subject hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of this 25th day of February 2014.
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/s/ Alain J.P. Belda |
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Director |
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/s/ William R. Brody |
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Director |
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/s/ Kenneth I. Chenault |
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Director |
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/s/ Michael L. Eskew |
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Director |
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/s/ David N. Farr |
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Director |
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/s/ Shirley Ann Jackson |
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Director |
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/s/ Andrew N. Liveris |
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Director |
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/s/ W. James McNerney, Jr. |
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Director |
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/s/ James W. Owens |
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Director |
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/s/ Joan E. Spero |
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Director |
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/s/ Sidney Taurel |
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Director |
Exhibit 24.2
INTERNATIONAL BUSINESS MACHINES CORPORATION
CERTIFICATE OF THE SECRETARY
I, Michelle H. Browdy, the undersigned Secretary of International Business Machines Corporation, a New York Corporation, do hereby certify as follows:
Attached hereto as Exhibit A is a true copy of the resolutions adopted by the Board of Directors of International Business Machines Corporation, authorizing the officers of the Corporation to execute the Registration Statement, to which this certificate is attached as an exhibit, by power of attorney.
IN WITNESS WHEREOF, I have executed this certificate as of this 13th day of June, 2014.
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By: /s/ MICHELLE H. BROWDY |
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Michelle H. Browdy |
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Secretary |
Exhibit A to Exhibit 24.2
RESOLUTIONS REGARDING THE IBM
2014 EMPLOYEES STOCK PURCHASE PLAN
RESOLVED, that the Board of Directors hereby approves the IBM 2014 Employees Stock Purchase Plan (the “Plan”) as presented to the Board and recommends submission of the Plan to stockholders for their adoption of the Plan at the April 29, 2014 Annual Meeting;
RESOLVED, that, subject to the adoption of the Plan by stockholders, the issuance pursuant to the Plan of up to 25,000,000 shares of $.20 par value capital stock of the Corporation (the “Shares”) from the authorized but unissued shares of the Corporation or from shares held in the Corporation’s treasury and not reserved for some other purpose is hereby authorized;
RESOLVED, that the issuance of fractional shares, in certificated or uncertificated form, to effect share transfers to the Plan participants in accordance with the Plan, and in accordance with Section 509 of the Business Corporation Law of the State of New York be, and it hereby is, authorized and approved;
RESOLVED, that the proper officers of the Corporation be, and hereby are, authorized and empowered to prepare, execute by powers of attorney and file with the Securities and Exchange Commission (the “SEC”) under the provisions of the Securities Act of 1933, as amended, one or more registration statements relating to the Shares, any amendments or supplements thereto, and any and all documents necessary or appropriate to effect the foregoing;
RESOLVED, that the proper officers of the Corporation be, and hereby are, authorized and empowered to prepare, execute and file an application for the listing of the Shares on the New York Stock Exchange (and such other exchanges as management may determine in their sole discretion), and any and all documents necessary or appropriate to effect the foregoing;
RESOLVED, that the proper officers of the Corporation be, and they hereby are, authorized and empowered to take any and all action which they may deem necessary or advisable in order to effect the registration or qualification, or exemption therefrom, of the Corporation’s obligations and other interests for issue, offer, sale or trade under the Plan under the Blue Sky or securities laws of any of the states of the United States of America and in connection therewith to execute, acknowledge, verify, deliver, file or cause to be published any applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, and to take any and all further action which they may deem necessary or advisable in order to maintain any such registration or qualification for as long as they deem necessary or as required by law for such obligations and other interests;
RESOLVED, that the proper officers of the Corporation be, and they hereby are, authorized to take all such further action and to execute all such further instruments and documents in the name and on behalf of the Corporation and under its corporate seal or otherwise as in their judgment shall be necessary, proper or advisable in order fully to carry out the intent and accomplish the purposes of the foregoing Resolutions;
RESOLVED, that the proper officers of the Corporation be, and they hereby are, authorized to further delegate, in whole or in part, the authority provided in these Resolutions to any assistant officer or other employee of the Corporation;
RESOLVED, that pursuant to Section 1 of the Plan, the Retirement Plans Committee is designated as the Committee to administer the Plan;
RESOLVED, that the Board hereby delegates to the Retirement Plans Committee the power and authority to amend the Plan in accordance with Section 16 of the Plan; and
RESOLVED FURTHER, that, subject to the approval of stockholders, the Plan shall become effective on the date determined by the Retirement Plans Committee, except that the Retirement Plans Committee’s power and authority to amend the Plan will be effective immediately upon approval by stockholders.