Attached files
Exhibit
3.1
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
Floating
Rate Note due 2011
CUSIP
459200 GQ 8
ISIN
US459200GQ83
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 November 4, 2011, 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, quarterly on February 4,
May 4, August 4 and November 4 of each year, commencing
February 4, 2010, on said principal sum at said office or agency, in like
coin or currency, at the rate of LIBOR (as defined on the reverse hereof) plus
0.04% per annum, from the February 4, May 4, August 4 or
November 4 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 February 4, May 4, August 4 or
November 4, as the case may be, and before such February 4,
May 4, August 4 or November 4, this Note shall bear interest from
such February 4, May 4, August 4 or November 4; provided,
however, that if the Company shall default in the payment of interest due on
such February 4, May 4, August 4 or November 4, then this
Note shall bear interest from the next preceding February 4, May 4,
August 4 or November 4 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 February 4, May 4, August 4 or
November 4 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 February 4, May 4, August 4 or November 4, 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 accrue from and including November 6, 2009, to but
excluding the first interest payment date and then from and including the most
recent interest payment date to which interest has been paid or duly provided
for to but excluding the next interest payment date or maturity date, as the
case may be (each such period an “interest period”). The amount of accrued
interest that the Company will pay for any interest period will be calculated by
multiplying the face amount of the Note by an accrued interest factor. This
accrued interest factor is computed by adding the interest factor calculated for
each day from November 6, 2009, or from the last date interest was paid, to
the date for which accrued interest is being calculated. The interest factor for
each day is computed by dividing the interest rate applicable to that day by
360.
The
interest rate on the Notes will be calculated by the calculation agent appointed
by the Company, initially The Bank of New York Mellon. The calculation agent
will reset the interest rate on each interest payment date and on
November 6, 2009 (each an “interest reset date”). The second London
business day preceding an interest reset date will be the “interest
determination date” for that interest reset date. The interest rate in effect on
each day that is not an interest reset date will be the interest rate determined
as of the interest determination date pertaining to the immediately preceding
interest reset date. The interest rate in effect on any day that is an interest
reset date will be the interest rate determined as of the interest determination
date pertaining to that interest reset date.
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.
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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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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 Floating Rate Notes due 2011 of
the Company (hereinafter called the “Notes”) issued under the
Indenture.
“LIBOR”
will be determined by the calculation agent in accordance with the following
provisions.
With
respect to any interest determination date, LIBOR will be the rate for deposits
in United States dollars having a maturity of the Index Maturity (as defined
below) commencing on the first day of the applicable interest period that
appears on Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on that
interest determination date. If no rate appears, LIBOR for that interest
determination date will be determined in accordance with the provisions
described in the following paragraph.
With
respect to an interest determination date on which no rate appears on Reuters
Screen LIBOR01 Page, as specified in the paragraph above, the calculation agent
will request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the calculation agent (after
consultation with the Company), to provide the calculation agent with its
offered quotation for deposits in United States dollars for the Index Maturity,
commencing on the first day of the applicable interest period, to prime banks in
the London interbank market at approximately 11:00 a.m., London time, on that
interest determination date and in a principal amount that is representative for
a single transaction in United States dollars in that market at that time. If at
least two quotations are provided, then LIBOR on that interest determination
date will be the arithmetic mean of those quotations. If fewer than two
quotations are provided, then LIBOR on the interest determination date will be
the arithmetic mean of the rates quoted at approximately 11:00 a.m., in The City
of New York, on the interest determination date by three major banks in The City
of New York selected by the calculation agent (after consultation with the
Company) for loans in United States dollars to leading European banks, having an
Index Maturity and in a principal amount that is representative for a single
transaction in United States dollars in that market at that time. If, however,
the banks selected by the calculation agent are not providing quotations in the
manner described by the previous sentence, LIBOR determined as of that interest
determination date will be LIBOR in effect on that interest determination
date.
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“Reuters
Screen LIBOR01 Page” means the display designated as the Reuters Screen LIBOR01
Page, or such other screen as may replace the Reuters Screen LIBOR01 Page on the
service or any successor service as may be nominated by the British Bankers’
Association for the purpose of displaying London interbank offered rates for
United States dollar deposits.
The
“Index Maturity” will be three months.
A “London
business day,” is any day on which dealings in United States dollars are
transacted in the London interbank market. A “Business Day” is any
day except (i) a Saturday, (ii) a Sunday, (iii) a legal holiday in The
City of New York or (iv) a day on which banking institutions are authorized or
obligated by law, regulation or executive order to close in The City of New
York. In the event that any interest payment date (other than the maturity date)
and interest reset date would otherwise fall on a day that is not a
Business Day, that interest payment date and interest reset date will be
postponed to the next day that is a Business Day. If the postponement would
cause the day to fall in the next calendar month, the interest payment date and
interest reset date will be the immediately preceding Business Day.
All
percentages resulting from any calculation of the interest rate on the Notes
will be rounded to the nearest one hundred-thousandth of a percentage point with
five one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all dollar amounts
used in or resulting from such calculation on the Notes will be rounded to the
nearest cent (with one-half cent being rounded upward). Each calculation of the
interest rate on the Notes by the calculation agent will (in the absence of
manifest error) be final and binding on Holders and
the Company.
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.
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.
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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.
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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