Registration Statement
As
filed with the Securities and Exchange Commission on February
17,
2006
Registration
No. 333-
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)
New
York
(State
or other jurisdiction
of
incorporation or organization)
|
13-0871985
(I.R.S.
Employer Identification No.)
|
|
|
New
Orchard Road
Armonk,
New York 10504
(Address
of Principal Executive Offices)
|
Micromuse
Inc. 1997 Stock Option/Stock Issuance Plan, as
amended
(Full
Title of the Plan)
|
Andrew
Bonzani, Esq.
Vice
President, Assistant General Counsel and Assistant
Secretary
International
Business Machines Corporation
Armonk,
New York 10504
(914)
499-1900
(Name,
address and telephone number, including area code, of agent for
service)
|
Copies
to:
Scott
A. Barshay, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825
Eighth Avenue
New
York, NY 10019
(212)
474-1000
|
CALCULATION
OF REGISTRATION FEE
|
Title
of
securities
to
be registered
|
Amount
to
be
registered
|
Proposed
maximum
offering
price per
share
|
Proposed
maximum
aggregate
offering
price
|
Amount
of
registration
fee
|
Common
Stock, par value $.20 per share
|
560,833 [1]
|
$49.125
[2]
|
$27,550,921.13
[2]
|
$2,947.95
|
[1]
Based
on the number of shares subject to outstanding options under the stock option
plan listed above as of February 14, 2006, divided by a conversion factor to
reflect the number of shares of IBM Common Stock for which such options are
exercisable pursuant to the Agreement and Plan of Merger dated as of December
20, 2005, among IBM, Rooster Acquisition Corp. and Micromuse Inc. (the “Merger
Agreement”).
[2]
Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 on the basis
of the weighted average exercise price of the outstanding options under the
stock option plan listed above as of February 14, 2006, multiplied by a
conversion factor to reflect the price at which such options could be exercised
to purchase IBM Common Stock pursuant to the Merger Agreement.
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.
INTRODUCTORY
STATEMENT
On
December 20, 2005, International Business Machines Corporation (“IBM”), Rooster
Acquisition Corp. (“Rooster”) and Micromuse Inc. (“Micromuse”) entered into an
Agreement and Plan of Merger (the “Merger Agreement”). Pursuant to the terms of
the Merger Agreement, Rooster will merge with and into Micromuse, with Micromuse
being the surviving corporation and thereby becoming a wholly-owned subsidiary
of IBM.
The
Merger Agreement provides that at the effective time of the merger, the terms
of
each outstanding unvested option to acquire shares of Micromuse common stock
granted under the Micromuse Inc. 1997 Stock Option/Stock Issuance Plan, as
amended, will be amended, and each such option will be converted into an option
to acquire, on the same terms and conditions, a number of shares of IBM common
stock in an amount and at an exercise price based on the formulae set forth
in
the Merger Agreement.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan
Information
All
information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (the “Securities Act”) and the Note to
Part I of Form S-8.
Item
2. Registrant
Information and Employee Plan Annual Information
All
information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act and the Note to Part I of Form S-8.
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 IBM on Form 10-K for the fiscal year ended
December 31, 2004, 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, 2004.
(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
4. Description
of Securities.
Not
applicable.
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 Andrew Bonzani, Vice President, Assistant General Counsel
and Assistant Secretary of IBM. As of February 17,
2006,
Mr. Bonzani beneficially owns shares of IBM common stock, par value $.20 per
share, and options to purchase shares of IBM 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
7. Exemption
from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Exhibit
Number
|
Description
|
4.1
|
Certificate
of Incorporation of IBM (incorporated by reference to Exhibit (3)(i)
to
Form 8-K filed April 28, 1999)
|
5.1
|
Opinion
of Andrew Bonzani, Esq., Vice President, Assistant General Counsel
and
Assistant Secretary, regarding the legality of the securities being
issued
|
23.1
|
Consent
of PricewaterhouseCoopers LLP
|
23.2
|
Consent
of Ernst & Young LLP
|
23.3
|
Consent
of Andrew Bonzani, Esq., Vice President, Assistant General Counsel
and
Assistant Secretary (included in Exhibit 5.1)
|
24.1
|
Powers
of Attorney
|
24.2
|
Certified
Resolutions of the IBM Board of Directors authorizing execution of
this
registration statement by Power 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: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect
in the prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in
the
information set forth in this Registration Statement; and (iii) 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; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference into this Registration Statement.
(2)
That,
for the purpose of determining any liability under the Securities Act, each
such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4)
That,
for the purpose of determining liability of the registrant under the Securities
Act to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser: (i) any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the undersigned
registrant; (iii) the portion of any other free writing prospectus relating
to
the offering containing material information about the undersigned registrant
or
its securities provided by or on behalf of the undersigned registrant; and
(iv)
any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b)
The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to 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
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
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 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 17th day of February,
2006.
|
|
|
|
INTERNATIONAL
BUSINESS MACHINES CORPORATION, |
|
|
|
|
By: |
/s/ Andrew
Bonzani |
|
Name:
Andrew Bonzani, Esq. |
|
Title:
Vice
President, Assistant General Counsel and Assistant
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
17th day of February, 2006.
Signature
|
Title
|
*
Samuel
J. Palmisano
|
Chairman,
President and Chief Executive Officer (Principal Executive
Officer)
|
|
Senior
Vice President and Chief Financial Officer (Principal Financial
Officer)
|
|
Vice
President and Controller (Controller)
|
|
Director
|
|
Director
|
|
Director
|
|
Director
|
|
Director
|
|
Director
|
|
Director
|
|
Director
|
|
Director
|
|
Director
|
|
Director
|
*
The
undersigned, by signing his name hereto, does hereby execute this Registration
Statement pursuant to powers of attorney filed as Exhibit 24.1 to this
Registration Statement.
|
|
|
|
By: |
/s/ Andrew
Bonzani |
|
Andrew
Bonzani, Esq. |
|
Attorney-in-Fact |
EXHIBIT
INDEX
EXHIBIT
NO.
|
|
4.1
|
Certificate
of Incorporation of IBM (incorporated by reference to Exhibit (3)(i)
to
Form 8-K filed April 28, 1999)
|
5.1
|
Opinion
of Andrew Bonzani, Esq., Vice President, Assistant General Counsel
and
Assistant Secretary, regarding the legality of the securities being
issued
|
23.1
|
Consent
of PricewaterhouseCoopers LLP
|
23.2
|
Consent
of Ernst & Young LLP
|
23.3
|
Consent
of Andrew Bonzani, Esq., Vice President, Assistant General Counsel
and
Assistant Secretary (included in Exhibit 5.1)
|
24.1
|
Powers
of Attorney
|
24.2
|
Certified
Resolutions of the IBM Board of Directors authorizing execution
of this
registration statement by Power of Attorney.
|