EXHIBIT IX
IBM SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Effective January 1, 1995)
INDEX
_____
ARTICLE 1 - Purpose 1
ARTICLE 2 - Definitions 1
ARTICLE 3 - Coverage and Effect 3
ARTICLE 4 - Management and Administration 3
ARTICLE 5 - Claims Procedure 5
ARTICLE 6 - Service Credit 5
A. Foreign Service 5
B. Service Credit for Leaves of Absence 6
C. Other Service Credit 6
ARTICLE 7 - Retirement Date and Commencement of Benefits 6
A. Normal Retirement Date 6
B. Early Retirement Date 6
C. Commencement of SERP Benefits 7
ARTICLE 8 - SERP Benefits 7
A. Normal Retirement Benefit 7
B. Early SERP Benefit 8
C. Form and Method of Payment 9
D. Effective Date of Election 10
E. Revocation of Election 10
F. SERP Benefits for Disabled Participants 11
ARTICLE 9 - Preretirement Spousal Annuity 11
ARTICLE 10 - Suspension of Benefits for Reemployed Retired 11
Participants
ARTICLE 11 - Forfeiture 12
A. Competitive or Prejudicial Conduct 12
B. Disclosure of Confidential Information 12
C. Disclosure and Assignment of Rights 13
D. Forfeiture and Rescission 13
ARTICLE 12 - Information for Benefits Calculations 13
A. Incomplete or Incorrect Information 13
B. Overpayments 14
ARTICLE 13 - Alienation of Benefits 14
ARTICLE 14 - Withholding Taxes 14
ARTICLE 15 - Distributions to Minors and Incompetents 14
ARTICLE 16 - No Right to Employment 15
ARTICLE 17 - Unfunded Plan 16
ARTICLE 18 - Miscellaneous 17
A. Construction 17
B. Severability 18
C. Title and Headings Not to Control 18
D. Complete Statement of Plan 18
E. Booklets and Brochures 18
ARTICLE 19 - Situs of Plan; Governing Law 18
ARTICLE 1 - Purpose
___________________
International Business Machines Corporation ("IBM"), a New York
corporation, has established the IBM Supplemental Executive
Retirement Plan (the "SERP" or the "Plan") with the intention
of attracting and retaining executives whose skills and talents
are important to IBM's operations by providing a monthly
retirement income that supplements benefits under the IBM
Retirement Plan.
ARTICLE 2 - Definitions
_______________________
a. Company - IBM and its Domestic Subsidiaries,
excluding foreign offices of the Company except as
otherwise provided in these Articles.
b. Subsidiary - a corporation, or other form of business
organization, the majority interest of which is
owned, directly or indirectly, by the Company.
c. Domestic Subsidiary - a Subsidiary organized and
existing under the laws of the United States or any
state, territory or possession thereof, provided,
however, that the Plan shall not be deemed to cover
the employees of any Domestic Subsidiary unless so
authorized by the chief human resources officer of
IBM.
d. Board of Directors - the Board of Directors of
IBM.
e. Executive Compensation and Management Resources
Committee (also, the "Committee") - the Executive
Compensation and Management Resources Committee of
the Board of Directors or such other persons or group
as said Board may appoint to serve as the Committee.
f. Foreign Service - Service with a Foreign Subsidiary
(i.e., a Subsidiary other than a Domestic Subsidiary)
or with a Foreign Branch (i.e., a branch of the
Company or of a Domestic Subsidiary that operates
principally outside the United States, its
territories or possessions).
g. IBM Retirement Plan - the retirement plan established
by IBM pursuant to a resolution of its Board of
Directors effective December l8, l945, as amended
from time to time.
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h. Regular Employee (also, "Employee") - an employee so
defined by the IBM Retirement Plan.
i. Executive - A Regular Employee so classified in the
sole discretion of the Company's chief human
resources officer.
j. Participant - an Executive who meets the requirements
of ARTICLE 3, or a former Executive who is accruing
or receiving Benefits pursuant to the provisions of
the Plan.
k. Beneficiary - a person who is designated by a
Participant or by the terms of the Plan to receive a
Benefit under the Plan in respect of a deceased
Participant. A Beneficiary shall not be considered a
Participant by virtue of this definition.
l. ERISA - the Employee Retirement Income Security Act
of l974, as amended from time to time.
m. Plan Administrator - a person or a committee
appointed pursuant to ARTICLE 4 hereof which shall be
responsible for reporting, record keeping and related
administrative matters under the Plan. If a
committee is appointed to serve as the Plan
Administrator, any one of the members of the
committee may act individually on behalf of the
committee to fulfill the committee's duties.
n. Continuous Service - Service as defined in the IBM
Retirement Plan except as provided in ARTICLE 6
hereof; provided that a Participant shall not in any
event be considered to have more than 35 years of
Continuous Service hereunder.
o. Compensation - Compensation as defined in the IBM
Retirement Plan except that in no event shall 1989 or
1994 Long-Term Incentive Plan awards or payments or
payments under any successor plan be included in
Compensation.
p. Plan Year - the calendar year.
q. Normal Retirement Age - age 65.
r. Normal Retirement Date - the date specified by
ARTICLE 7A hereof.
s. Early Retirement Date - the date on which a
Participant retires from employment with the Company
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in accordance with the provisions of ARTICLE 7B
hereof.
t. Spouse - a person who, according to the laws of the
state of a Participant's domicile, is the
Participant's spouse on the earlier of (i) the date
of the Participant's death while employed by the
Company or (ii) the Participant's Annuity
Commencement Date.
u. Actuarial Equivalent - shall mean a form of payment
that is equal in value to another form of payment, as
determined by the Plan Administrator in accordance
with the actuarial assumptions specified by the IBM
Retirement Plan.
v. Annuity Commencement Date - shall mean the date as of
which SERP Benefits are scheduled to commence.
w. SERP Benefit (also, "Benefit") - a payment or series
of payments made or due under the Plan.
x. Pay - the average of the Participant's annual
Compensation over (i) the last five years of
employment or (ii) the highest consecutive five
calendar years of employment, whichever is greater.
y. Breakpoint - $185,000, subject to such adjustments as
may be made from time to time by IBM's chief human
resources officer in his or her sole discretion.
z. Earnings Threshold - $150,000, subject to such
adjustments as may be made from time to time by IBM's
chief human resources officer in his or her sole
discretion.
ARTICLE 3 - Coverage and Effect
_______________________________
This document states the terms of the Plan as established by
Resolution of the Board of Directors on October 24, 1994 and
first effective on January 1, 1995. Participation is limited
to Executive Level Regular Employees in the United States whose
Pay equals or exceeds the Earnings Threshold.
ARTICLE 4 - Management and Administration
_________________________________________
The Plan may be amended from time to time for any purpose
permitted by law or terminated at any time by written
resolution of the Board or the Committee, but only if the
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Committee's action is not materially inconsistent with a prior
action of the Board. The authority to amend or terminate the
Plan shall include the authority to amend the procedure for
amending or terminating the Plan and the authority to amend or
terminate any related instrument or agreement.
The following persons and groups of persons shall severally
have the authority to control and manage the operation and
administration of the Plan as herein delineated: (a) the Board
of Directors, (b) the Executive Compensation and Management
Resources Committee, (c) IBM's chief human resources officer,
and (d) the Plan Administrator and each person on any committee
serving as the Plan Administrator. Each person or group of
persons shall be responsible for discharging only the duties
assigned to it by the terms of the Plan.
The Board of Directors shall be responsible only for
designating those persons who will serve on the Committee and
for approving any resolution to terminate the Plan.
The Committee may, pursuant to a duly adopted resolution,
delegate to IBM's chief financial officer, chief human
resources officer, or Treasurer, the Plan Administrator and/or
any other officer or employee of IBM, authority to carry out
any decision, directive or resolution of the Committee.
The Committee shall appoint one or more executives employed by
IBM to serve as Plan Administrator or as a committee to fulfill
the function of Plan Administrator. The Plan Administrator
shall have the full power and authority, in its sole
discretion: (a) to promulgate and enforce such rules and
regulations as it shall deem necessary or appropriate for the
administration of the Plan; (b) to adopt any amendments to the
Plan that are required by law; (c) to interpret the Plan
consistent with the terms and intent thereof; and (d) to
resolve any possible ambiguities, inconsistencies and omissions
in the Plan. All such actions shall be in accordance with the
terms and intent of the Plan and the Plan Administrator shall
on a regular basis report such actions to the Committee.
Additionally, IBM's chief human resources officer shall appoint
and designate such other IBM employees as may be needed to
provide adequate staff services to the Committee and the Plan
Administrator.
The Committee and/or the Plan Administrator may engage the
services of accountants, attorneys, actuaries, consultants and
such other professional personnel as they deem necessary or
advisable to assist them in fulfilling their responsibilities
under the Plan. The Committee, the Plan Administrator, and
their delegates and assistants shall be entitled to act on the
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basis of all tables, valuations, certificates, opinions and
reports furnished by such professional personnel.
ARTICLE 5 - Claims Procedure
____________________________
IBM's Executive Compensation Department is responsible for
advising Participants and Beneficiaries of their Benefits under
the Plan. If a Participant or Beneficiary believes he or she
is entitled to Benefits and has not received them, the
Participant or Beneficiary must submit a written claim to the
Director of Executive Compensation, IBM Corporation, Old
Orchard Road, Armonk, New York l0504. The Plan Administrator
shall furnish to the Participant or Beneficiary a written
decision setting forth the Plan Administrator's decision.
If the Plan Administrator denies a claim for Benefits in whole
or in part, the claimant may appeal the denial of the claim in
writing within 60 days of receiving the Plan Administrator's
written decision.
ARTICLE 6 - Service Credit
__________________________
A. Foreign Service
_______________
All Foreign Service by a Regular Employee who is otherwise
eligible for Benefits under the Plan will be deemed for
all Plan purposes, in all respects as Continuous Service
with the Company, except that there shall be deducted from
the combined amount payable under the Plan and the IBM
Retirement Plan, any amount paid or payable to the
Participant or Beneficiary arising out of Foreign Service
to the extent that credit is given for such Foreign
Service under this ARTICLE 6A and pursuant to any pension,
retirement, severance indemnity, provident fund or other
similar plan--whether in the form of installments or lump
sum and whether private or sponsored by a foreign govern-
ment--to the extent not provided by direct contributions
made by the Participant,
(l) provided that a Participant with such Foreign Service
immediately preceded by Continuous Service with the
Company must, before credit for such Foreign Service
is given, resume employment as a Regular Employee of
the Company; and
(2) further provided that a Participant with such Foreign
Service not immediately preceded by Continuous
Service with the Company must, before credit for such
Foreign Service is given, complete one year of
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Continuous Service as a Regular Employee of the
Company subsequent to such Foreign Service.
B. Service Credit for Leaves of Absence
____________________________________
A Participant who commences a leave of absence granted
under IBM's human resources practices then in effect, and
who resumes the status of an Executive Level Regular
Employee upon completion of the leave, shall be deemed,
for all Plan purposes, as having been an actively employed
Participant throughout the leave and to have received
Compensation during the leave at the rate in effect
immediately before the leave began. If the Participant
does not so resume his or her status as an Executive Level
Regular Employee for at least 30 days for any reason other
than disability or death, the Participant shall be treated
as having severed from service with the Company on the
date immediately preceding the date the leave began (i.e.,
the last day worked), and neither the Participant nor the
Participant's Beneficiary shall be eligible for a SERP
Benefit.
C. Other Service Credit
____________________
IBM's chief executive officer, or other senior officer
designated by the Committee, in his or her sole
discretion, may grant Continuous Service credit to an
Executive in excess of actual Continuous Service subject
to such limitations and conditions as the officer
considers appropriate, if the officer deems this to be in
the best interests of the Company.
ARTICLE 7 - Retirement Date and Commencement of Benefits
________________________________________________________
A. Normal Retirement Date
______________________
A Participant's Normal Retirement Date is the last working
day of the month in which his or her 65th birthday occurs;
provided that the Participant has completed one year of
Continuous Service, and further provided that, if a
Participant was born on the first day of the month, the
Normal Retirement Date shall be the last day of the month
immediately preceding the 65th anniversary of birth.
B. Early Retirement Date
_____________________
A Participant described in any of the following paragraphs
may retire from employment on an Early Retirement Date
specified in the applicable paragraph below:
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1. A Participant with 30 years or more of
Continuous Service may retire on an Early
Retirement Date at the end of any month,
2. A Participant with 15 or more years of
Continuous Service may retire on an Early
Retirement Date at the end of any month at or
after reaching age 55,
3. A Participant with five or more years of
Continuous Service who is eligible to receive
Social Security benefits at age 62 may retire on
an Early Retirement Date at the end of any month
at or after reaching age 62;
provided that in order to retire on an Early Retirement
Date a Participant must give the Company at least six
months prior written notice, in a form approved by the
Plan Administrator, of his or her intention to retire
early and to have SERP Benefits commence, unless the Plan
Administrator waives such notice requirement.
C. Commencement of SERP Benefits
_____________________________
In addition to all other conditions, in no event shall
payment of SERP Benefits commence unless and until the
Participant applies for such Benefits before his or her
Annuity Commencement Date. In no event shall any SERP
Benefit be paid under this Plan unless the Participant (1)
meets the Plan's eligibility conditions on the date of his
or her retirement, disability, or death, (2) retires (or
dies while eligible to retire) under the terms of the IBM
Retirement Plan, (3) holds an Executive Level position (as
determined by IBM's chief human resources officer in his
or her sole discretion) on the date of his or her
retirement or death, and (4) complies with the
requirements imposed by ARTICLE 11 hereof.
ARTICLE 8 - SERP Benefits
_________________________
A. Normal Retirement Benefit
_________________________
The Participant's SERP Benefit, when expressed as a single
life annuity commencing as of the first day of the month
next following the Participant's Normal Retirement Date,
shall be equal to one-twelfth of the Phase-In Percentage
(defined below) multiplied by the excess of (i) the
Pension Credit (defined below) over (ii) the total annual
single life annuity benefit at Normal Retirement Age,
including the single life annuity benefit attributable to
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the Personal Retirement Provision whether such is paid in
annuity form or not, payable monthly to the Participant
under the IBM Retirement Plan or under any pension
arrangement between the Company and a Participant which is
payable monthly for life after termination of employment.
The Phase-In Percentage shall be determined on the date
the Participant retires, and shall not be increased
thereafter. If the Participant retires on January 31,
1995, the Phase-In Percentage shall be 27%. If the
Participant retires after January 31, 1995, the Phase-In
Percentage shall be 27% plus 2% for each succeeding month
(3% for the month of December) up to and including the
month of the Participant's retirement, until the Phase-In
Percentage reaches 100% for a Participant retiring on or
after December 31, 1997. The Phase-In Percentage shall
in no event exceed 100%.
The Pension Credit shall be a single life annuity equal to
the sum of:
(1) 1.7% of Pay up to the Breakpoint, plus 2.55% of Pay in
excess of the Break Point (if any), multiplied by the
Participant's years of Continuous Service up to a maximum
of 20 years,
(2) 1.3% of Pay multiplied by the Participant's years of
Continuous Service between 20 and 30 years (if any), plus
(3) .75% of Pay multiplied by the Participant's Continuous
Service between 30 and 35 years (if any).
B. Early SERP Benefit
__________________
If the Participant elects to retire on an Early Retirement
Date with an Annuity Commencement Date on or after his or
her 60th birthday, the Participant's SERP Benefit when
paid in the form of a single life annuity, shall be equal
to the SERP Benefit calculated in accordance with Section
A of this ARTICLE 8 based on the Participant's years of
Continuous Service and Pay on the Participant's Early
Retirement Date.
If the Participant elects to retire on an Early
Retirement Date with an Annuity Commencement Date before
his or her 60th birthday, the Participant's SERP Benefit,
when paid in the form of a single life annuity, shall be
be the amount determined in accordance with the following
table:
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Participant's SERP Benefit under
Age at Annuity ARTICLE 8A hereof,
Commencement Date reduced
begins by the following
______ ________________
59 3%
58 7%
57 11%
56 15%
55 20%
below 55 20% plus 5% per year for
each year before the Participant's
55th birthday
For each month of age falling between the ages or years
shown above, one-twelfth of the difference between the
respective factors should be added.
The reductions described in this Section 8B shall be
applied to the Pension Credit calculation under ARTICLE 8A
prior to the subtraction of any benefit payable under the
IBM Retirement Plan. The Phase-In Percentage shall be
applied to the net SERP Benefit.
C. Form and Method of Payment
__________________________
The normal form of payment of the SERP Benefit for a
Participant who is unmarried on his or her Annuity
Commencement Date is a single life annuity for the
Participant's life.
The normal form of payment of the SERP Benefit for a
Participant who is married on his or her Annuity
Commencement Date is a joint and survivor annuity
providing an annuity to the Participant for life, in a
monthly amount that is less than that payable under a
single life annuity, and a survivor annuity for the life
of the Participant's Spouse in a monthly amount equal to
50 percent of the monthly amount payable to the married
Participant during his or her lifetime. This form of
payment, which constitutes a 50% joint and survivor
annuity, shall be the Actuarial Equivalent of the single
life annuity otherwise payable to the Participant, based
on the age of the Participant and the age of the
Participant's Spouse as of the Annuity Commencement Date.
A Participant also may elect to be paid under any
alternative form of payment available under the IBM
Retirement Plan except for the Early Retirement Level
Income Option. Any such election must be made in the
manner and form prescribed by IBM's Executive Compensation
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Department which may, in certain instances, require the
consent of the Participant's Spouse to the alternative
form of payment. Each alternative form of payment shall
be the Actuarial Equivalent of the single life annuity
payable to the Participant in accordance with this ARTICLE
8.
Payment of the SERP Benefit shall be made monthly as of
the first day of the month beginning with the month
following the month in which the Participant retires from
employment with the Company.
D. Effective Date of Election
__________________________
Any election under this ARTICLE 8 shall be effective on
the later of the Participant's Annuity Commencement Date
or 30 days after IBM's Executive Compensation Department
receives the election. The death of a survivor annuitant
before the Participant's Annuity Commencement Date
automatically revokes any such election. The death of a
survivor annuitant on or after the Participant's Annuity
Commencement Date does not revoke the Participant's
election.
E. Revocation of Election
______________________
A Participant may revoke an election he or she has made
under this ARTICLE 8 at any time before the Participant's
Annuity Commencement Date. In order to be effective, any
such revocation must be received by IBM's Executive
Compensation Department before the Annuity Commencement
Date and must be made in the manner and form prescribed by
IBM's Executive Compensation Department. A timely
revocation of an election shall only become effective upon
receipt by IBM's Executive Compensation Department.
If a Participant revokes an election of an alternative
form of payment, the Participant's form of payment shall
automatically revert to the normal form of payment
prescribed by this ARTICLE 8. After revoking an election,
the Participant may elect an alternative form of payment
in accordance with this ARTICLE 8; however, in order to
become effective, the Participant's election of an
alternative form of payment (other than the normal form of
payment) must be received by IBM's Executive Compensation
Department before the Participant's Annuity Commencement
Date. A timely election shall become effective as of the
later of the Participant's Annuity Commencement Date or 30
days after IBM's Executive Compensation Department
receives the election.
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F. SERP Benefits for Disabled Participants
_______________________________________
A Participant who (i) becomes totally and permanently
disabled (as determined in accordance with the terms of
the IBM Long Term Disability Plan) after becoming eligible
to retire hereunder and while at Executive Level, (ii)
remains so disabled until Normal Retirement Age, and (iii)
receives benefits under the IBM Long Term Disability Plan,
shall be eligible to receive a SERP Benefit upon reaching
Normal Retirement Age, notwithstanding his or her
ineligibility for that Benefit under other provisions of
the Plan.
The Annuity Commencement Date for such disabled
Participant shall be his or her Normal Retirement Date.
The disabled Participant's SERP benefit shall be based on
the Participant's Pay and Continuous Service on the date
the Participant's IBM Sickness and Accident Income Plan
benefits cease.
ARTICLE 9 - Preretirement Spousal Annuity
_________________________________________
A preretirement spousal annuity shall be payable to the Spouse
of a Participant who dies before his or her Annuity
Commencement Date, but who, on the date of death, is both
married and eligible to retire immediately hereunder. The
preretirement spousal annuity shall be the survivor annuity
that the Participant's Spouse would have received under the
Plan had the Participant retired on his or her date of death
with a 50 percent joint and survivor annuity in effect in
accordance with the provisions of ARTICLE 8 hereof. In no
event shall the preretirement spousal annuity be payable to
anyone other than the Participant's Spouse on the date of the
Participant's death.
ARTICLE 10 - Suspension of Benefits for Reemployed
__________________________________________________
Retired Participants
____________________
If a retired Participant is reemployed by the Company, any SERP
Benefits otherwise payable to the Participant shall be
suspended during the period of reemployment. If the reemployed
Participant subsequently completes one year of Continuous
Service and retires from the Company, the Participant shall be
eligible for SERP Benefits under the terms of the Plan in
effect on the date the Participant's employment with the
Company ceases, based on the Participant's Pay and Continuous
Service as of that date, but reduced by the Actuarial
Equivalent of any Benefits paid before the Participant's
reemployment. If the reemployed Participant again retires
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without having completed one year of Continuous Service during
his or her period of reemployment, the SERP Benefits being paid
to the Participant immediately before his or her reemployment
shall resume, without adjustment, immediately following his or
her retirement.
ARTICLE 11 - Forfeiture
_______________________
A. Competitive or Prejudicial Conduct
__________________________________
A Participant shall not render services for any
organization or engage directly or indirectly in any
business which, in the judgment of the chief executive
officer of the Company or other senior officer designated
by the Committee, is or becomes competitive with the
Company, or which organization or business, or the
rendering of services to such organization or business, is
or becomes otherwise prejudicial to or in conflict with
the interests of the Company. For a Participant whose
employment has terminated, the judgment of the chief
executive officer shall be based on the Participant's
position and responsibilities while employed by the
Company, the Participant's post-employment
responsibilities and position with the other organization
or business, the extent of past, current and potential
completion or conflict between the Company and the other
organization or business, the effect on the Company's
customers, suppliers and competitors of the Participant
assuming the post-employment position, the guidelines
established in the then current edition of IBM's booklet,
Business Conduct Guidelines, and such other considerations
___________________________
as are deemed relevant given the applicable facts and
circumstances. A Participant who has retired shall be
free, however, to purchase as an investment or otherwise,
stock or other securities of such organization or business
so long as they are listed upon a recognized securities
exchange or traded over-the-counter, and such investment
does not represent a substantial investment to the
Participant or a greater than 10 percent equity interest
in the organization or business.
B. Disclosure of Confidential Information
______________________________________
A Participant shall not, without prior written
authorization from the Company, disclose to anyone outside
the Company, or use in other than the Company's business,
any confidential information or material, as defined in
the Company's Agreement Regarding Confidential Information
and Intellectual Property, related to the business of the
Company, acquired by the Participant either during or
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after employment with the Company.
C. Disclosure and Assignment of Rights
___________________________________
A Participant, pursuant to the Company's Agreement
Regarding Confidential Information and Intellectual
Property shall disclose promptly and assign to the Company
all right, title, and interest in any invention or idea,
patentable or not, made or conceived by the Participant
during employment by the Company, relating in any manner
to the actual or anticipated business, research, or
development work of the Company and shall do anything
reasonably necessary to enable the Company to secure a
patent where appropriate in the United States and in other
countries.
D. Forfeiture and Rescission
_________________________
Upon retirement, and from time to time thereafter upon
request by the Committee, the Participant shall certify on
a form acceptable to the Committee that he or she is in
compliance with the terms and conditions of the Plan.
Failure to comply with the provisions of Section A, B, or
C of this ARTICLE prior to retirement or receipt of any
Benefit payment hereunder shall cause the forfeiture of
all SERP Benefits even if the failure to comply is not
discovered until Benefits have commenced. Failure to
comply with the provisions of Section A, B, and C of this
ARTICLE after SERP Benefits have commenced hereunder shall
cause any such payments to be rescinded from the point in
time when the conduct which led to the failure to comply
occurred. The Plan Administrator shall notify the
Participant in writing of any such rescission, and within
ten days after receiving a notice of rescission from the
Company, the Participant shall pay to the Company in cash
the amount of any payment that has been rescinded in
accordance with this ARTICLE.
ARTICLE 12 - Information for Benefits Calculations
__________________________________________________
A. Incomplete or Incorrect Information
___________________________________
Any delay in receiving from a Participant or Beneficiary
information requested by the Company's Executive
Compensation Department, including but not limited to
information regarding a Participant's Spouse or other
factors necessary for the calculation of Benefits under
the Plan, shall result in the Benefits payable being based
initially on the information then available to IBM's
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Executive Compensation Department and the Plan
Administrator, and their estimate of any unavailable
information. If additional or different information
thereafter becomes available to IBM's Executive
Compensation Department or the Plan Administrator,
Benefits shall be adjusted appropriately as determined by
the Plan Administrator.
B. Overpayments
____________
If any overpayment of Benefits is made under the Plan, the
amount of the overpayment may be set off against further
amounts payable to or on account of the person who
received the overpayment until the overpayment has been
recovered in full. The foregoing remedy is not intended
to be exclusive.
ARTICLE 13 - Alienation of Benefits
___________________________________
No Benefit payable under the Plan shall be subject to
alienation, sale, transfer, assignment, pledge, attachment,
garnishment, lien, levy or like encumbrance. No Benefit under
the Plan shall in any manner be liable for or subject to the
debts or liabilities of any person entitled to Benefits under
the Plan.
ARTICLE 14 - Withholding Taxes
______________________________
The Company and the Plan Administrator shall withhold such
taxes and make such reports to governmental authorities as they
reasonably believe to be required by law.
ARTICLE 15 - Distributions to Minors and Incompetents
_____________________________________________________
If the Plan Administrator determines that any Participant or
Beneficiary receiving or entitled to receive Benefits under the
Plan is incompetent to care for his or her affairs, and in the
absence of the appointment of a legal guardian of the property
of the incompetent, payments due under the Plan (unless prior
claim thereto has been made by a duly qualified guardian,
committee or other legal representative) may be made to the
spouse, parent, brother or sister or other person, including a
hospital or other institution, deemed by the Plan Administrator
to have incurred or to be liable for expenses on behalf of such
incompetent.
In the absence of the appointment of a legal guardian of the
property of a minor, any minor's share of Benefits under the
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Plan may be paid to such adult or adults as in the opinion of
the Plan Administrator have assumed the custody and principal
support of such minor.
The Plan Administrator, however, in its sole discretion, may
require that a legal guardian for the property of any such
incompetent or minor be appointed before authorizing the
payment of Benefits in such situations. Benefit payments made
under the Plan in accordance with determinations of the Plan
Administrator pursuant to this ARTICLE 15 shall be a complete
discharge of any obligation arising under the Plan with respect
to such Benefit payments.
ARTICLE 16 - No Right to Employment
___________________________________
Nothing herein contained shall be deemed to give any employee
the right to be retained in the service of the Company or to
interfere with the right of the Company to discharge any
employee at any time without regard to the effect that such
discharge may have upon the employee under the Plan.
ARTICLE 17 - Unfunded Plan
__________________________
The Plan shall be unfunded. The Company shall not be required
to segregate any assets to provide Benefits, nor shall the Plan
be construed as providing for such segregation, nor shall the
Company or the Committee be deemed to be a trustee of any
assets of the Plan. Any liability of the Company to any
Participant or Beneficiary with respect to SERP Benefits shall
be based solely upon any contractual obligations created by the
Plan. No such obligation of the Company shall be deemed to be
secured by any pledge or other encumbrance or any property of
the Company. Neither the Company nor the Committee shall be
required to give any security or bond for the performance of
any obligation created by the Plan.
ARTICLE 18 - Miscellaneous
__________________________
A. Construction
____________
Unless the contrary is plainly required by the context,
wherever any words are used herein in the masculine
gender, they shall be construed as though they were also
used in the female gender, and vice versa, and wherever
any words are used herein in the singular form, they shall
be construed as though they were also used in the plural
form, and vice versa.
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B. Severability
____________
If any provision of the Plan is held illegal or invalid
for any reason, such illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall
be construed and enforced as if such illegal or invalid
provision had never been inserted herein.
C. Titles and Headings Not to Control
__________________________________
The titles to ARTICLES and the headings of Sections in the
Plan are placed herein for convenience of reference only,
and in the event of any conflict, the text of the Plan,
rather than such titles or headings, shall control.
D. Complete Statement of Plan
__________________________
This document is a complete statement of the Plan. The
Plan may be amended, modified or terminated only in
writing and then only as provided herein.
E. Booklets and Brochures
______________________
The Company shall from time to time issue to Participants
one or more booklets or brochures summarizing the Plan.
In the event of any conflict between the Plan document and
the booklets and brochures, the Plan document shall
control.
ARTICLE 19 - Situs of Plan; Governing Law
__________________________________________
The situs of the Plan shall be the State of New York. The Plan
shall be governed by ERISA, and to the extent not preempted by
ERISA, the law of the State of New York.
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