INTERNATIONAL BUSINESS MACHINES CORPORATION
Debt Securities
$1,500,000,000
UNDERWRITING AGREEMENT
New York, New York
To the Representatives named in Schedule I hereto September 20, 2001
of the Underwriters named in Schedule II hereto
Dear Sirs:
International Business Machines Corporation, a New York corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its Securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture dated as
of October 1, 1993 (the "Indenture"), between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of December 15, 1995. If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule
I hereto, then the terms "Underwriters" and "Representatives", as used herein
shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement or
statements (the file number or numbers of which is or are set forth in
Schedule I hereto), including a related preliminary prospectus, on such
Form for the registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including the related preliminary prospectus, and has filed a preliminary
prospectus in accordance with Rules 415 and 424(b)(5), each of which has
previously been furnished to you. The Company will next file with the
Commission one of the following: (i) prior to effectiveness of such
registration statement, a further amendment thereto, including the form of
final prospectus, (ii) a final prospectus in accordance with Rules 430A and
424(b)(1) or (4), or (iii) a final prospectus in accordance with Rules 415
and 424(b)(2) or (5). In the case of clause (ii), the Company has included
in such registration statement or statements, as amended at the Effective
Date, all information (other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the Prospectus with respect
to the Securities and the offering thereof. As filed, such amendment and
form of final prospectus, or such final prospectus, shall include all Rule
430A Information and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. If the Registration
Statement contains the undertaking specified by Regulation S-K Item 512(a),
the Registration Statement, at the Execution Time, meets the requirements
set forth in Rule 415(a)(1)(x).
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The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term the "Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Preliminary Prospectus" shall mean any preliminary prospectus
referred to in the preceding paragraph and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information. "Prospectus" shall mean the prospectus relating to
the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus included in the Registration Statement at
the Effective Date. "Registration Statement" shall mean the registration
statement or statements referred to in the preceding paragraph, including
incorporated documents as of the filing of the Company's Quarterly Report
on Form 10-Q for the three month period ended March 31, 1997, exhibits and
financial statements, in the form in which it or they has or have or shall
become effective and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined), shall
also mean such registration statement or statements as so amended. Such
term shall include Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule
430A" and "Regulation S-K" refer to such rules under the Act. "Rule 430A
Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. Any reference herein to
the Registration Statement, a Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934 (the "Exchange Act") on or before the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the effective date of the
Registration Statement, or the date of any Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date, the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on the Effective Date and on the Closing Date the Indenture did
or will comply in all material respects with the requirements of the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the rules thereunder;
on the Effective Date, the Registration Statement did not or will not
contain any untrue statement of a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together
with any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
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Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration Statement or
the Prospectus (or any supplement thereto).
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the respective principal amounts of the Securities set
forth opposite each respective Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Securities pursuant
to delayed delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be as set forth in
Schedule II hereto, less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters
are herein sometimes called the "Underwriters' Securities" and Securities to
be purchased pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form
of Schedule III hereto but with such changes therein as the Company may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives,
for the account of underwriters, on the Closing Date, the percentage set forth
in Schedule I hereto of the principal amount of the Securities for which
Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set
forth in Schedule II hereto shall be reduced by an amount which shall bear the
same proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in Schedule II hereto,
except to the extent that you determine that such reduction shall be otherwise
than in such proportion and so advise the Company in writing; provided,
however, that the total principal amount of Securities to be purchased by all
Underwriters shall be the aggregate principal amount set forth in Schedule II
hereto, less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made at the office, on the date and at the time specified
in Schedule I hereto, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 8 hereof
(such date and time of delivery and payment for the Securities being called
the "Closing Date"). Delivery of the Underwriters' Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
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against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by certified or
official bank check or checks payable, or wire transfers, in immediately
available funds. The Securities shall be delivered in definitive global form
through the facilities of The Depository Trust Company.
4. Agreements.
(A) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, and any amendment thereof, if not effective at the Execution
Time, to become effective. If the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Company will file the Prospectus,
properly completed, pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly advise
the Representatives (i) when the Registration Statement shall have become
effective, (ii) when any amendment to the Registration Statement relating
to the Securities shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof. The
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company will give the
Representatives immediate notice of the occurrence of such event and
promptly will prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
current fiscal quarter of the Company, an earnings statement (which need
not be audited) of the Company and its subsidiaries, covering a period of
at least 12 months beginning after the end of the current fiscal quarter of
the Company, which will satisfy the provisions of Section 11(a) of the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement
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(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reasonably request.
(e) The Company will arrange for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors.
(f) Until the earlier of the day on which the distribution of the
Securities is completed or the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed under the
Act.
(B) The several Underwriters agree with the Company that:
(a) The several Underwriters will pay the expenses of printing and
distributing all documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and
disbursements of outside counsel for the Company and the Underwriters
relating to the offering.
(c) The several Underwriters will pay any fees of Xxxxx'x Investors
Service, Inc. and Standard & Poor's Ratings Group, a division of the
XxXxxx-Xxxx Companies, Inc. relating to the rating of the Securities.
(d) The several Underwriters will pay the fees and disbursements of
PricewaterhouseCoopers LLC relating to the preparation of the letter
required by Section 5(e) of this Agreement.
(e) The several Underwriters will pay the reasonable fees and expenses
of The Chase Manhattan Bank as Trustee.
(f) The several Underwriters will pay any and all fees associated with
listing the Securities on any United States or foreign securities exchange.
(g) The several Underwriters will pay any and all travel expenses
incurred by the Company in connection with the offering of the Securities.
(h) The several Underwriters will pay any and all other miscellaneous
expenses and/or taxes associated with the offering.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, as of the date of the effectiveness
of any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and
as of the Closing Date, to the accuracy of the statements of the Company made
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in any certificates pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement shall have become effective not later than
(i) 6:00 P.M. New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to 3:00
P.M. New York City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 P.M. New York City time on such
date; if filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Prospectus shall have been filed in the manner
and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement, as amended from
time to time, shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Assistant General Counsel,
an Associate General Counsel, or other Senior Counsel of the Company,
dated the Closing Date, to the effect that:
(A) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of New
York, with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction within the United States
which requires such qualifications wherein it owns or leases material
properties or conducts material business;
(B) the Securities conform in all material respects to the
description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding obligation enforceable against
the Company in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity
or at law); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to this Agreement, in the case of the Underwriters' Securities, or by
the purchasers thereof pursuant to Delayed Delivery Contracts, in the
case of any Contract Securities, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and other similar laws
affecting creditors' rights generally from time to time in effect);
(D) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
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the Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
(E) the Registration Statement and any amendments thereto have
become effective under the Act; any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement, as amended, has been
issued, no proceedings for that purpose have been instituted or are
pending or contemplated under the Act;
(F) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(G) no authorization, approval or other action by, and no notice
to, consent of, order of, or filing with, any United States Federal
or New York governmental authority or regulatory body is required for
the consummation of the transactions contemplated herein or in any
Delayed Delivery Contracts, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities and such other approvals (specified in such opinion) as
have been obtained;
(H) such counsel has no reason to believe that (1) the
Registration Statement and the Prospectus (except the financial
statements and the notes thereto and other information of an
accounting or financial nature included therein, and the Statement of
Eligibility (Form T-1) included as an exhibit to the Registration
Statement, as to which such counsel need express no view) were not
appropriately responsive in all material respects to requirements of
the Act and the applicable rules and regulations of the Commission
thereunder and (2) the Registration Statement or any amendment
thereof at the time it became effective contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or
supplemented, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading (in each case except for the financial statements and
the notes thereto and other information of an accounting or financial
nature included therein, as to which such counsel need express no
view); and
(I) none of the issue and sale of the Securities, the consummation
of any other of the transactions herein contemplated or the
fulfillment of the terms hereof or of any Delayed Delivery Contracts
will conflict with, result in a breach of, or constitute a default
under, the charter or by-laws of the Company or the terms of any
indenture or other agreement or instrument known to such counsel and
to which the Company or any of its subsidiaries is a party or bound,
or any decree or regulation known to such counsel to be applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or
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arbitrator having jurisdiction over the Company or any of its
subsidiaries.
The statements described in one or more of paragraphs (B), (C),
(E), (F), (G) and (H)(1) of this subsection 5(b)(i) may be omitted
from the opinion of such counsel; provided, however, that in such
event the Company shall also have furnished to the Representatives
the corresponding opinion or letter of Cravath, Swaine & Xxxxx,
counsel for the Company, described in subsection 5(b)(ii) or
5(b)(iii) immediately following.
(ii) in the event that the statements described in one or more of
paragraphs (B), (C), (E), (F) or (G) of foregoing subsection 5(b)(i) is
omitted from the opinion delivered pursuant to such subsection, the
opinion of Cravath, Swaine & Xxxxx, counsel for the Company, dated the
Closing Date, to the effect of the statements so omitted.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of New York or the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters; and (B) as to matters
of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials.
(iii) in the event that the statements in paragraph (H)(1) of
subsection 5(b)(i) are omitted from the opinion provided pursuant to
such subsection, a letter of Cravath, Swaine & Xxxxx dated the Closing
Date to the effect that, having participated in conferences with certain
officers of, and with the accountants for, the Company and having made
certain inquiries and investigations in connection with the preparation
of the Registration Statement and the Prospectus, such counsel has no
reason to believe that (i) the Registration Statement and the Prospectus
(except the financial statements and the notes thereto and other
information of an accounting or financial nature included therein, and
the Statement of Eligibility (Form T-1) included as an exhibit to the
Registration Statement, as to which such counsel need express no view)
were not appropriately responsive in all material respects with
requirements of the Act and the applicable rules and regulations of the
Commission thereunder and (ii) the Registration Statement at the
Effective Date contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus on the Closing Date includes any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading (in each case except for the financial
statements and the notes thereto and other information of an accounting
or financial nature included therein, as to which such counsel need
express no view).
(c) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
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(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the principal financial or accounting
officer (or Vice President and Treasurer) of the Company, dated the Closing
Date, to the effect that the signer of such certificate has carefully
examined the Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, threatened;
and
(iii) since the date of the most recent financial statements included
in the Prospectus, there has been no material adverse change in the
condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLC shall have furnished
to the Representatives a letter or letters (which may refer to a letter
previously delivered to one or more of the Representatives), dated as of
the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder, that the response, if any, to
Item 10 of the Registration Statement is correct insofar as it relates to
them and stating in effect that:
(i) in their opinion the audited financial statements and schedules
thereto included or incorporated in the Registration Statement and the
Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act
and the published rules and regulations thereunder with respect to
financial statements and financial statement schedules included or
incorporated in annual reports on Form 10-K under the Exchange Act;
(ii) on the basis of a reading of the unaudited financial statements
included or incorporated in the Registration Statement and the
Prospectus and of the latest unaudited financial statements made
available by the Company and its subsidiaries; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committees of the Company and the
Subsidiaries since the date of the latest audited balance sheet, through
a specified date not more than five business days prior to the date of
the letter; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date of
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the most recent financial statements incorporated in the Registration
Statement and the Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements included or incorporated in
the Registration Statement and the Prospectus do not comply as to
form in all material respects with applicable accounting requirements
and with the published rules and regulations of the Commission with
respect to financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not stated on a basis substantially
consistent with that of the audited financial statements included or
incorporated in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to the date of the most
recent financial statements incorporated in the Registration
Statement and the Prospectus, there were, at a specified date not
more than five business days prior to the date of the letter, any
increases in long-term debt of the Company and its subsidiaries or
decreases in the capital stock of the Company or decreases in the
stockholders' equity of the Company and its subsidiaries as compared
with the amounts shown on the most recent consolidated balance sheet
included or incorporated in the Registration Statement and the
Prospectus, except in all instances for increases or decreases set
forth in such letter, in which case the letter shall be accompanied
by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(iii) they have performed certain other procedures as a result of
which they determined that the information described in a schedule to be
delivered on behalf of the Underwriters of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general ledger of the Company)
set forth in the Registration Statement, as amended, the Prospectus, as
amended or supplemented, and in Exhibit 12 to the Registration Statement
(including selected accounting, financial or statistical information
included or incorporated in the Company's Annual Report on Form 10-K
incorporated in the Prospectus or any of the Company's Quarterly Reports
on Form l0-Q incorporated therein), agrees with the general ledger of
the Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Prospectus in this paragraph (e) include any supplements
thereto at the date of the letter.
(f) Subsequent to the respective dates of which information is given in
the Registration Statement and the Prospectus, there shall not have been
(i) any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties
of the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement and the
Prospectus.
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(g) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Securities by Moody's Investor's
Service, Inc. ("Moody's") or Standard & Poor's Corporation ("S&P") and
neither Moody's nor S&P shall have publicly announced that it has placed
any of the Securities on a credit watch with negative implications.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Representatives and their counsel, this Agreement
and all obligations of the Underwriters hereunder may be cancelled at, or at
any time prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred, as incurred, by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in connection
with the preparation thereof, and (ii) such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any
12
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Prospectus (or
the Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as supplemented
prior to the confirmation of the sale of such Securities to such person). This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page of the
Prospectus and under the heading "Underwriting" or "Plan of Distribution" and,
if Schedule I hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading "Delayed
Delivery Arrangements" in any Preliminary Prospectus and the Prospectus,
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise
than under this Section 7. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to appoint counsel
satisfactory to such indemnified party to represent the indemnified party in
such action; provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
appoint counsel to defend such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 7, representing
the indemnified parties under such paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
13
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 7 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the sum
of such discount and the purchase price of the Securities set forth on
Schedule I hereto and the Company is responsible for the balance; provided,
however, that (y) in no case shall any Underwriter (except as may be provided
in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to clauses (y) and (z) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but
the omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Securities, and if such nondefaulting Underwriters do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be
14
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make it,
in the judgment of the Representatives, impracticable to market the
Securities.
10. Representations and Indemnities to Survive. The respective agreement
representations, warranties, indemnities and other statements of the Company
or its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it, at Xxxxxx, Xxx Xxxx 00000; attention of the
Treasurer.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
15
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
INTERNATIONAL BUSINESS MACHINES
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date hereof:
X.X. XXXXXX SECURITIES INC.,
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing Agreement.
Schedule I
Underwriting Agreement dated September 20, 2001.
Registration No. 333-37034.
Representatives: X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.
Title, Purchase Price and Description of Securities:
Title: 4.875% Notes due 2006.
Principal amount: $1,500,000,000.
Purchase price: 99.074% of the principal amount of Notes plus accrued
interest from September 27, 2001.
Offering price: 99.399% of the principal amount of Notes plus accrued
interest from September 27, 2001.
Interest: Payable on April 1 and October 1 of each year, commencing on
April 1, 2002.
Sinking fund provisions: None.
Redemption provisions: The Securities are redeemable by the Company in
whole at par upon the occurrence of certain tax events as described in
the prospectus supplement dated the date of this Agreement and at the
option of the Company, in whole or in part, at any time at a make-whole
premium described in the Prospectus.
Closing Date, Time and Location: September 27, 2001, 10:00 A.M., at the
offices of Cravath, Swaine & Xxxxx, Xxxxxxxxx Xxxxx, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx.
Delayed Delivery Arrangements: None.
Items specified pursuant to Section 5(e)(iii) to be covered by the letter from
PricewaterhouseCoopers LLC delivered pursuant to Section 5(e): As set forth
in a schedule delivered on the date hereof on behalf of the Underwriters.
Other Terms:
1. Section 4(B)(c) is amended to read as follows:
"X.X. Xxxxxx and Xxxxxxx Xxxxx Xxxxxx will each pay $187,500 to the
Company as full reimbursement of the fees of Xxxxx'x Investors
Service, Inc. and Standard & Poor's Ratings Group, a division of the
XxXxxx-Xxxx Companies, Inc. relating to the rating of the Securities.
Such sums shall be paid to the Company on or by the Closing Date.
The Company agrees to use its reasonable best efforts to ensure that
any bills payable by the several Underwriters pursuant to Section
4(B)(a), (d), (e), (f), (g), or (h) will be forwarded to Xxxxxxx
Xxxxx Barney Inc. on behalf of the Representatives for reimbursement
by November 30, 2001. It is understood that the Representatives will
be billed directly for any amounts payable pursuant to Section
4(B)(b)."
2. Each of the Underwriters has agreed that it will not offer, sell, or
deliver any of the Securities, directly or indirectly, or distribute the
prospectus supplement or prospectus or any other offering material
relating to the Securities, in or from any jurisdiction except under
2
circumstances that will, to the best of the Underwriters' knowledge and
belief, result in compliance with the applicable laws and regulations
and which will not impose any obligations on the Company.
The Underwriters also agree to abide by the following offering
restrictions:
United Kingdom
Each underwriter has represented and agreed that it and each of its
affiliates:
o has not offered or sold and, prior to the expiry of the period of six
months from the time to closing, will not offer or sell any of the
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing, or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not results
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations
1995;
o has complied and will comply with all applicable provisions of the
Financial Services Xxx 0000 with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United
Kingdom; and
o has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the
issue of the Notes to a person who is of a kind described in Article
11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom those
documents may otherwise lawfully be issued or passed on.
Germany
No selling prospectus (Verkaufsprospekt) has been or will be published
in respect of the Securities and each Underwriter will be required to
comply with the German Securities Selling Prospectus Act (Wertpapier-
Verkaufsprospektgesetz) of December 13, 1990, as amended.
The Netherlands
The Securities are being issued under the Euro-securities exemption
pursuant to Article 6 of the Exemption Regulation (Vrijstellinsregeling Wet
Toezicht Effectenverkeer) of December 21, 1995, as amended, of The
Netherlands' Securities Xxxxxx Xxxxxxxxxxx Xxx 0000 (Wet Toezicht
Effectenverkeer) and accordingly each Underwriter has represented and
agreed that it has not publicly promoted and will not publicly promote the
offer or sale of the Securities by conducting a generalized advertising or
cold-calling campaign within or outside The Netherlands.
The Republic of France
The Securities are being issued outside the Republic of France and each
Underwriter has represented and agreed that, in connection with their
initial distribution, it has not offered or sold and will not offer or
sell, directly or indirectly, any of the Securities to the public in the
Republic of France and that it has not distributed and will not distribute
or cause to be distributed to the public in the Republic of France this
prospectus supplement or any other offering material relating to the
Securities.
Japan
The Securities have not been and will not be registered under the
Securities and Exchange Law of Japan (the "SEL") and each of the
3
Underwriters and each of its affiliates has represented and agreed that it
has not offered or sold, and it will not offer or sell directly or
indirectly, any of the Securities in or to residents of Japan or to any
persons for reoffering or resale, directly or indirectly, in Japan or to
any resident of Japan, except pursuant to an exemption from the
registration requirements of the SEL available thereunder and otherwise in
compliance with the SEL and the other relevant laws, regulations and
guidelines of Japan.
Hong Kong
Each of the Underwriters and each of its affiliates has represented and
agreed that it has not offered or sold, and it will not offer or sell, the
Securities by means of any document to persons in Hong Kong other than
persons whose ordinary business it is to buy or sell shares or debentures,
whether as principal or agent, or otherwise in circumstances which do not
constitute an offer to the public within the meaning of the Hong Kong
Companies Ordinance (Chapter 32 of the Laws of Hong Kong).
Schedule II
International Business Machines Corporation
$1,500,000,000 4.875% Notes Due 2006
Underwriters Principal Amount of
------------ Notes to be Purchased
---------------------
X.X. XXXXXX SECURITIES INC. $701,250,000
XXXXXXX XXXXX BARNEY INC. 701,250,000
ABN AMRO INCORPORATED 7,500,000
BANCA IMI S.P.A 7,500,000
BNP PARIBAS SECURITIES CORP. 7,500,000
CABOTO HOLDING SIM S.P.A. 7,500,000
CREDIT SUISSE FIRST BOSTON CORPORATION 7,500,000
DEUTSCHE BANC ALEX. XXXXX INC. 7,500,000
FLEET SECURITIES, INC. 7,500,000
XXXXXXX XXXXX XXXXXX, XXXXXX & XXXXX 7,500,000
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED 7,500,000
ROYAL BANK OF SCOTLAND PLC. 7,500,000
UBS WARBURG LLC 7,500,000
XXXXXXXX CAPITAL PARTNERS, L.P. 7,500,000
THE XXXXXXXX CAPITAL GROUP, L.P. 7,500,000
Total.............................................$1,500,000,000
==============
Schedule III
Delayed Delivery Contract
[Insert name and address
of lead Representative]
,200
Dear Sirs:
The undersigned hereby agrees to purchase from International Business
Machines Corporation (the "Company"), and the Company agrees to sell to the
undersigned, on , 200 , (the "Delivery Date"),
$ principal amount of the Company's (the
"Securities") offered by the Company's Final Prospectus dated ,
200 , receipt of a copy of which is hereby acknowledged, at a purchase price
of % of the principal amount thereof, plus accrued ,
if any, thereon from , 20 , to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 A.M. on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your office or at such
other place as shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Securities in definitive, fully registered
form and in such authorized denominations and registered in such names as the
undersigned may request by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
If no request is received, the Securities will be registered in the name of
the undersigned and issued in a denomination equal to the aggregate principal
amount of Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject, and (2) the Company, on or
before the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Underwriting Agreement referred to in the Final
Prospectus mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
2
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
--------------------------------------
(Name of Purchaser)
By------------------------------------
(Signature and Title)
--------------------------------------
(Address)
Accepted:
INTERNATIONAL BUSINESS MACHINES
CORPORATION
By-------------------------------------
