Attached files
Exhibit
2.1
Unless
this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (“DTC”), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
INTERNATIONAL
BUSINESS MACHINES CORPORATION
2.100%
Note due 2013
CUSIP
459200 GR 6
ISIN
US459200G R66
No.:
R-
INTERNATIONAL
BUSINESS MACHINES CORPORATION, a corporation duly organized and existing under
the laws of the State of New York (herein called the “Company”, which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay
to or
registered assigns, the principal sum of
$ ( DOLLARS),
at the office or agency of the Company in the Borough of Manhattan, The City and
State of New York, or any other office or agency designated by the Company for
that purpose, on May 6, 2013, in such coin or currency of the United States
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semi-annually on May 6 and
November 6 of each year, commencing May 6, 2010, on said principal sum
at said office or agency, in like coin or currency, at the rate of 2.100% per
annum, from the May 6 or November 6 next preceding the date of this
Note to which interest has been paid, unless the date hereof is a date to which
interest has been paid, in which case from the date of this Note, or unless no
interest has been paid on the Notes (as defined on the reverse hereof), in which
case from November 6, 2009, until payment of said principal sum has been
made or duly provided for. Notwithstanding the foregoing, if the date
hereof is after the fifteenth calendar day preceding a May 6 or
November 6, as the case may be, and before such May 6 or
November 6, this Note shall bear interest from such May 6 or
November 6; provided, however, that if the Company shall default in the
payment of interest due on such May 6 or November 6, then this Note
shall bear interest from the next preceding May 6 or November 6 to
which interest has been paid, or, if no interest has been paid on the Notes,
from November 6, 2009. The interest so payable on May 6 or
November 6 will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this Note
is registered at the close of business on the fifteenth calendar day preceding
such May 6 or November 6, unless the Company shall default in the
payment of interest due on such interest payment date, in which case such
defaulted interest, at the option of the Company, may be paid to the person in
whose name this Note is registered at the close of business on a special record
date for the payment of such defaulted interest established by notice to the
registered holders of Notes not less than ten days preceding such special record
date or may be paid in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be
listed. Payment of interest may, at the option of the Company, be
made by check mailed to the registered address of the person entitled
thereto. Interest on this Note will be calculated on the basis of a
360-day year consisting of twelve 30-day months.
Reference
is made to the further provisions of this Note set forth on the reverse
hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
[signatures
follow]
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This Note
shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee under the Indenture
referred to on the reverse hereof.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated:
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INTERNATIONAL
BUSINESS MACHINES CORPORATION
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[SEAL]
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by
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by
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[signatures
follow]
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TRUSTEE’S
CERTIFICATE
OF
AUTHENTICATION
This is
one of the
Securities
of the Series
designated
herein issued
under the
within-
mentioned
Indenture.
THE
BANK OF NEW YORK MELLON, as Trustee
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Authorized Signatory |
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This
security is one of a duly authorized issue of unsecured debentures, notes or
other evidences of indebtedness of the Company (hereinafter called the
“Securities”), of the series hereinafter specified, all issued or to be issued
under an indenture dated as of October 1, 1993, duly executed and delivered by
the Company to The Bank of New York Mellon, a New York banking corporation, as
trustee (hereinafter called the “Trustee”), as supplemented by the First
Supplemental Indenture dated as of December 15, 1995, between the Company
and the Trustee, as trustee (hereinafter called the “Indenture”), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the respective rights and duties thereunder of the Trustee, the
Company and the holders of the Securities. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest at
different rates, may have different conversion prices (if any), may be subject
to different redemption provisions, may be subject to different sinking,
purchase or analogous funds, may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided. This
Security is one of a series designated as the 2.100% Notes due 2013 of the
Company (hereinafter called the “Notes”) issued under the
Indenture.
The Notes
may be redeemed, as a whole or in part, at the Company’s option, at any time or
from time to time, upon mailing a notice of such redemption not less than
30 days nor more than 60 days prior to the date fixed for redemption to
holders of the Notes at their last registered addresses, all as provided in the
Indenture, at a redemption price equal to the greater of: (i) 100% of the
principal amount of the Notes to be redeemed, plus accrued interest, if any, to
the redemption date; or (ii) the sum of the present values of the Remaining
Scheduled Payments, as defined below, discounted, on a semiannual basis,
assuming a 360-day year consisting of twelve 30-day months, at the Treasury
Rate, as defined below, plus 10 basis points, plus accrued interest to the date
of redemption which has not been paid.
“Treasury
Rate” means, with respect to any redemption date for the Notes: (i) the yield,
under the heading which represents the average for the immediately preceding
week, appearing in the most recently published statistical release designated
“H.15(519)” or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption “Treasury Constant Maturities,” for the maturity corresponding
to the Comparable Treasury Issue; provided that if no maturity is within three
months before or after the maturity date for the Notes, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Treasury Rate will be
interpolated or extrapolated from those yields on a straight line basis rounding
to the nearest month; or (ii) if that release, or any successor release, is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for that redemption date. The Treasury
Rate will be calculated on the third business day preceding the redemption
date.
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“Comparable
Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes.
“Independent
Investment Banker” means one of the Reference Treasury Dealers, appointed by the
Company.
“Comparable
Treasury Price” means, with respect to any redemption date for the Notes: (i)
the average of the Reference Treasury Dealer Quotations for that redemption
date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations; or (ii) if the Trustee obtains fewer than four Reference Treasury
Dealer Quotations, the average of all quotations obtained by the
Trustee.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue, expressed in each
case as a percentage of its principal amount, quoted in writing to the Trustee
by such Reference Treasury Dealer at 3:30 p.m., New York City time on the third
business day preceding such redemption date.
“Reference
Treasury Dealer” means each of Citigroup Global Markets Inc., HSBC
Securities (USA) Inc., Morgan Stanley & Co. Incorporated and one
other treasury dealer selected by the Company, and their respective successors;
provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer, which we refer to as a “Primary Treasury Dealer,”
the Company will substitute therefor another nationally recognized investment
banking firm that is a Primary Treasury Dealer.
“Remaining
Scheduled Payments” means, with respect to each Note to be redeemed, the
remaining scheduled payments of the principal thereof and interest thereon that
would be due after the related redemption date but for such redemption;
provided, however, that, if such redemption date is not an interest payment date
with respect to such Note, the amount of the next succeeding scheduled interest
payment thereon will be deemed to be reduced by the amount of interest accrued
thereon to such redemption date.
On and
after the redemption date, interest will cease to accrue on the Notes or any
portion thereof called for redemption, unless the Company defaults in the
payment of the redemption price and accrued interest. On or before the
redemption date, the Company will deposit with a Paying Agent, or the Trustee,
money sufficient to pay the redemption price of and accrued interest on the
Notes to be redeemed on such date. If less than all of the Notes are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee by such
method as the Trustee shall deem fair and appropriate.
In case
an Event of Default with respect to the Notes, as defined in the Indenture,
shall have occurred and be continuing, the principal hereof together with
interest accrued thereon, if any, may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
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The
Indenture contains provisions permitting the Company and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal amount
of the Securities at the time outstanding of all series to be affected (acting
as one class), to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
holders of the Securities of such series to be affected; provided, however, that
no such supplemental indenture shall, among other things, (i) change the
fixed maturity of the principal of, or any installment of principal of or
interest on, or the currency of payment of, any Security; (ii) reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof; (iii) impair the right to institute suit for
the enforcement of any such payment on or after the fixed maturity thereof (or,
in the case of redemption, on or after the redemption date); (iv) reduce
the percentage in principal amount of the outstanding Securities of any series,
the consent of whose holders is required for any such supplemental indenture, or
the consent of whose holders is required for any waiver (of compliance with
certain provisions of the Indenture or certain defaults thereunder and their
consequences) provided for in the Indenture; (v) change any obligation of
the Company, with respect to outstanding Securities of a series, to maintain an
office or agency in the places and for the purposes specified in the Indenture
for such series; or (vi) modify any of the foregoing provisions or the
provisions for the waiver of certain covenants and defaults, except to increase
any applicable percentage of the aggregate principal amount of outstanding
Securities the consent of the holders of which is required or to provide with
respect to any particular series the right to condition the effectiveness of any
supplemental indenture as to that series on the consent of the holders of a
specified percentage of the aggregate principal amount of outstanding Securities
of such series or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the holder of each
outstanding Security affected thereby. It is also provided in the
Indenture that the holders of a majority in aggregate principal amount of the
Securities of a series at the time outstanding may on behalf of the holders of
all the Securities of such series waive any past default under the Indenture
with respect to such series and its consequences, except a default in the
payment of the principal of, premium, if any, or interest, if any, on any
Security of such series or in respect of a covenant or provision which cannot be
modified without the consent of the Holder of each outstanding Security of the
series affected. Any such consent or waiver by the holder of this
Note shall be conclusive and binding upon such holder and upon all future
holders and owners of this Note and any Notes which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, premium, if any, and interest on
this Note at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
The
Indenture permits the Company to Discharge its obligations with respect to the
Notes on the 91st day following the satisfaction of the conditions set forth in
the Indenture, which include the deposit with the Trustee of money or U.S.
Government Obligations or a combination thereof sufficient to pay and discharge
each installment of principal of (including premium, if any, on) and interest,
if any, on the outstanding Notes.
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If the
Company shall, in accordance with Section 901 of the Indenture, consolidate with
or merge into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, the successor shall succeed
to, and be substituted for, the Person named as the “Company” on the face of
this Note, all on the terms set forth in the Indenture.
The Notes
are issuable in registered form without coupons in denominations of $100,000 and
any integral multiple of $1,000. In the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, Notes may be exchanged for an equal aggregate principal amount of Notes
of other authorized denominations at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan, The City and State of
New York.
Upon due
presentation for registration of transfer of this Note at the office or agency
of the Company for such registration in the Borough of Manhattan, The City and
State of New York, or any other office or agency designated by the Company for
such purpose, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange herefor,
subject to the limitations provided in the Indenture, without charge except for
any tax or other governmental charge imposed in connection
therewith.
Prior to
due presentment for registration of transfer of this Note, the Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
registered holder hereof as the absolute owner of this Note (whether or not this
Note shall be overdue) for the purpose of receiving payment of the principal of,
premium, if any, and interest on this Note, as herein provided, and for all
other purposes, and neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice of the
contrary. All payments made to or upon the order of such registered
holder shall, to the extent of the sum or sums paid, effectually satisfy and
discharge liability for moneys payable on this Note.
No
recourse for the payment of the principal of, premium, if any, or interest on
this Note, or for any claim based hereon or otherwise in respect hereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
the Indenture or any indenture supplemental thereto or in any Note, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and
released.
Unless
otherwise defined in this Note, all terms used in this Note which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
THIS NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
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