Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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☒
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Accelerated filer
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☐
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Non-accelerated filer
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☐
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
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CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount to be
registered
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Proposed maximum
offering price
per share
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|
Proposed maximum
aggregate offering
price
|
|
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Amount of
registration fee
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|
|
Capital Stock, par value $.20 per share
|
|
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29,703,694
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(1)
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$
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139.95
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(2)
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$
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4,157,031,975.30
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(2)
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$
|
|
503,832.28
|
|
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1.
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Based on (i) the number of shares exchangeable for restricted shares outstanding immediately prior to the transaction contemplated by the Agreement and Plan of Merger, dated as of October 28, 2018, by and among International Business Machines Corporation (“IBM”), Socrates Acquisition Corp. (“Merger Sub”), a wholly owned subsidiary of IBM, and Red Hat, Inc. (“Red Hat”), as such agreement may be amended from time to time (the “Merger Agreement”, and the transaction contemplated therein, the “Merger”) (or 362,124) pursuant to the benefit plans listed above as of July 8, 2019, multiplied by an exchange ratio to reflect the number of shares of IBM capital stock for which such restricted shares are exchangeable pursuant to the Merger Agreement plus (ii) the number of shares exchangeable for service-based restricted stock units (“RSUs”) outstanding immediately prior to the Merger (or 3,810,754) pursuant to the benefit plans listed above as of July 8, 2019, multiplied by an exchange ratio to reflect the number of shares of IBM capital stock for which such RSUs are exchangeable pursuant to the Merger Agreement plus (iii) the number of shares exchangeable for performance-based restricted stock units (“PSUs”) outstanding immediately prior to the Merger (or 576,002) pursuant to the benefit plans listed above as of July 8, 2019, multiplied by an exchange ratio to reflect the number of shares of IBM capital stock for which such PSUs are exchangeable pursuant to the Merger Agreement plus (iv) the number of shares that remain available for issuance pursuant to the benefit plans listed above (“Residual Shares”) as of July 8, 2019, multiplied by an exchange ratio to reflect the number of shares of IBM capital stock for which such Residual Shares are exchangeable pursuant to the Merger Agreement.
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2.
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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 $139.95 per share of IBM capital stock issuable for each restricted share, each share subject to an RSU and each Residual Share under the benefit plans listed above, which is the average of the high and low prices of the IBM capital stock on the New York Stock Exchange on July 2, 2019, in each case, after taking into account the exchanges described in note (1).
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Pursuant to Rule 416 under the Securities Act of 1933, to the extent additional shares of IBM capital 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 capital stock.
INTRODUCTORY STATEMENT
On October 28, 2018, IBM, Merger Sub and Red Hat entered into the Merger Agreement.
The Merger Agreement provides that, at the effective time of the Merger, each restricted share award of Red Hat common stock (other than restricted share awards that are cashed out pursuant to the Merger Agreement) granted under the Red Hat Inc. 2004 Long-Term Incentive Plan, the Ansible, Inc. 2013 Stock Incentive Plan or the Makara, Inc. 2008 Equity Incentive Plan, in each case, as amended (together, the “Benefit Plans”) that is outstanding immediately prior to the effective time (the “Rollover Restricted Shares”) will be converted at the effective time into a restricted share award consisting of IBM capital stock subject to substantially the same terms and conditions as were applicable to the Rollover Restricted Shares with respect to a number of shares of IBM capital stock determined by multiplying the number of shares of Red Hat common stock subject to such Rollover Restricted Share immediately prior to the effective time by a fraction, the numerator of which is $190.00 and the denominator of which is the closing price per share of IBM capital stock on the New York Stock Exchange Composite Transactions Tape on the trading day immediately preceding the date on which the merger effective time occurs (the “Exchange Ratio”) (rounded down to the nearest whole share).
The Merger Agreement provides that, at the effective time of the Merger, each RSU with respect to Red Hat common stock (other than RSUs that are cashed out pursuant to the Merger Agreement) granted under the Benefit Plans that is outstanding immediately prior to the effective time (the “Rollover RSUs”) will be converted at the effective time into an RSU with respect to IBM capital stock subject to substantially the same terms and conditions as were applicable to the Rollover RSUs with respect to a number of shares of IBM capital stock determined by multiplying the number of shares of Red Hat common stock subject to such Rollover RSU immediately prior to the effective time by the Exchange Ratio (rounded down to the nearest whole share).
The Merger Agreement provides that, at the effective time of the Merger, each PSU with respect to Red Hat common stock (other than PSUs that are cashed out pursuant to the Merger Agreement) granted under the Benefit Plans that is outstanding immediately prior to the effective time (the “Rollover PSUs”) will, in accordance with the applicable award agreement, be converted at the effective time into a restricted share award consisting of IBM capital stock subject to substantially the same terms and conditions as were applicable under such Rollover PSU (other than the performance-based vesting schedule, which will be converted into a service-based vesting schedule in accordance with the applicable award agreement), with respect to a number of shares of IBM capital stock determined by multiplying the applicable PSU Share Number (defined below) by the Exchange Ratio (rounded down to the nearest whole share). For purposes of the treatment of PSUs, the “applicable PSU Share Number” means, with respect to PSUs that were granted with performance goals relating to operating performance, either the target performance level if the effective time occurs in the first performance segment of the award, or the actual performance level based on the most recently completed fiscal quarter prior to the closing date if the effective time occurs in the second performance segment of the award,
in each case, as determined by the compensation committee of the Red Hat board of directors. For PSUs with performance goals based on total shareholder return, the applicable PSU Share Number has been determined by the compensation committee of the Red Hat board of directors based on the total shareholder return represented by the merger consideration.
The Merger Agreement provides that, at the effective time of the Merger, each share of Red Hat common stock that remains available for issuance pursuant to the Benefit Plans (the “Residual Shares”) will be converted into shares of IBM capital stock available for issuance determined by multiplying the number of Residual Shares by the Exchange Ratio.
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Item 5.
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Interests of Named Experts and Counsel.
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The validity of the IBM capital stock, par value $.20 per share, offered hereby has been passed upon by Christina M. Montgomery, Esq., Vice President, Assistant General Counsel and Secretary of IBM. As of July 9, 2019, Ms. Christina M. Montgomery beneficially owns shares of IBM capital stock, par value $.20 per share, and options to purchase shares of IBM capital stock, par value $.20 per share.
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Item 6.
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Indemnification of Directors and Officers.
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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) by reason of the fact that such person is (i) an officer or director of the Corporation or (ii) an officer or
director of the Corporation who is asked to serve in any capacity at the request of the Corporation in any corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against, in each case, 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 that vests upon the occurrence or alleged occurrence of any act or omission to act that forms the basis for or is related to the claim for which indemnification is sought and shall include the right to be paid advances of any expenses incurred by such person in connection with such action, suit or proceeding, and the right to be indemnified for expenses incurred by such person in connection with successfully establishing a right to indemnification, in each case 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 indemnification rights hereunder shall continue as to any such person who has ceased to be an officer or director of the Corporation and shall inure to the benefit of the heirs, executors and administrators of any such person. If the right of indemnification provided for in this Section 6 is amended or repealed, such amendment or repeal will not limit the indemnification provided for herein with respect to any acts or omissions to act occurring prior to any such amendment or repeal.
”
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.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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Exhibit Number
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Description
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4.1
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4.2
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4.3
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4.4
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4.5
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4.6
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4.7
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5.1
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23.1
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23.2
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24.1
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24.2
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The undersigned registrant hereby undertakes:
(a)(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. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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) 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 in 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.
(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 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 July, 2019.
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INTERNATIONAL BUSINESS MACHINES CORPORATION
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By:
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/s/ Christina M. Montgomery
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Name:
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Christina M. Montgomery
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Title:
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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 9th day of July, 2019.
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Signature
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Title
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*
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Chairman, President and Chief Executive Officer
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Virginia M. Rometty
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(Principal Executive Officer)
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*
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Senior Vice President and Chief Financial
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James J. Kavanaugh
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Officer (Principal Financial Officer)
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*
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Vice President and Controller
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Robert F. Del Bene
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(Principal Accounting Officer)
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*
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Director
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Michael L. Eskew
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*
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Director
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David N. Farr
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*
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Director
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Alex Gorsky
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*
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Director
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Michelle Howard
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*
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Director
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Shirley Ann Jackson
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*
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Director
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Andrew N. Liveris
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*
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Director
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Martha E. Pollack
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*
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Director
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Joseph R. Swedish
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*
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Director
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Sidney Taurel
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*
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Director
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Peter R. Voser
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*
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Director
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Frederick H. Waddell
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* The undersigned, by signing her name hereto, does hereby execute this Registration Statement pursuant to powers of attorney filed as Exhibit 24.1 to this Registration Statement.
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By:
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/s/ Christina M. Montgomery
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Name:
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Christina M. Montgomery
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Title:
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Attorney-in-Fact
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