exhibit108.htm


    EXHIBIT
10.8


      

      FORM OF

       

      AMENDMENT #2 TO SECOND
AMENDED AND RESTATED

       

      CHANGE-IN-CONTROL
AGREEMENT

       

      THIS
AMENDMENT #2 (the “Amendment”) TO THE SECOND AMENDED AND RESTATED
CHANGE-IN-CONTROL AGREEMENT (the “CIC Agreement”), dated as of [DATE] between
West Pharmaceutical Services, Inc., a Pennsylvania corporation (the “Company”)
and [NAME] (the “Executive”).

       

      Background

       

      At a
meeting of the Company’s board of directors (the “Board”) on December 11, 2007,
the Board approved amendments to each executive’s Change in Control Agreement
primarily to comply with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”).  The changes required by Code Section 409A are
effective as of January 1, 2005, to the extent required by applicable
regulations.

       

      1.           Section
1(k) of the CIC Agreement is amended in its entirety to read as
follows:

       

      “ ‘(k) Savings/Deferred Comp
Plan’ means The Company’s 401(k) Plan, The Company’s Non-Qualified
Deferred Compensation Plan for Designated Employees and any successor plans or
other similar plans established from time to time that may allow executive
officers to defer taxation of compensation.”

       

      2.           Section
3(a) is amended by striking the phrase “(y) could have been compelled to retire”
and replacing it with the phrase “reaches normal retirement age,” in the flush
paragraph beginning “provided, however...”

       

      3.           Section
4 of the CIC Agreement is amended and restated in its entirety as
follows:

       

      “4.           Additional
Payments.

       

      
        	
                (a)  

              	
                Gross-Up
      Payment.  Notwithstanding anything herein to the
      contrary, if it is determined that any Payment would be subject to the
      excise tax imposed by section 4999 of the Code or any interest or
      penalties with respect to such excise tax (such excise tax, together with
      any interest or penalties thereon, is herein referred to as an ‘Excise Tax’),
      then Executive shall be entitled to an additional payment (a ‘Gross-Up
      Payment’) in an amount that will place Executive in the same
      after-tax economic position that Executive would have enjoyed if the
      Excise Tax had not applied to the
Payment.

              


      

       

      
        	
                (b)  

              	
                Determination of
      Gross-Up Payment.  Subject to the provisions of Section
      4(c), all determinations required under this Section 4, including whether
      a Gross-Up Payment is required, the amount of the Payments constituting
      excess parachute payments, and the amount of the Gross-Up Payment, shall
      be made by the accounting firm that was the Company's independent auditors
      immediately prior to the Change in Control (or, in default thereof, an
      accounting firm mutually agreed upon by the Company and Executive) (the
      ‘Accounting
      Firm’), which shall provide detailed supporting calculations both
      to Executive and the Company within fifteen days of the Change in Control,
      the Termination Date or any other date reasonably requested by Executive
      or the Company on which a determination under this Section 4 is necessary
      or advisable.  If the Accounting Firm determines that no Excise
      Tax is payable by Executive, the Company shall cause the Accounting Firm
      to provide Executive with an opinion that the Accounting Firm has
      substantial authority under the Code and Regulations not to report an
      Excise Tax on Executive's federal income tax return.  Any
      determination by the Accounting Firm shall be binding upon Executive and
      the Company.  If the initial Gross-Up Payment is insufficient to
      cover the amount of the Excise Tax that is ultimately determined to be
      owing by Executive with respect to any Payment (hereinafter an ‘Underpayment’),
      the Company, after exhausting its remedies under Section 4(c) below, shall
      pay to Executive an additional Gross-Up Payment in respect of the
      Underpayment.

              


      

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

      
        	
                (c)  

              	
                Timing of
      Payment.  The Company shall pay to Executive the initial
      Gross-Up Payment or any required Underpayment (i) if the Executive is a
      ‘specified employee’ within the meaning of Section 409A of the Code, on
      the later of (A) the date that is at least six months after the date of
      the Executive’s termination of employment or (B) the fifth business day
      following the receipt by Executive and the Company of the Accounting
      Firm's determination, or (ii) if the Executive is not a “specified
      employee” within the meaning of Section 409A the fifth business day
      following the receipt by Executive and the Company of the Accounting
      Firm’s determination.  Notwithstanding anything herein to the
      contrary, any Gross-Up Payment or Underpayment must be paid on or before
      the end of the Executive’s taxable year following the taxable year in
      which the applicable Excise Tax is
payable.

              


      

       

      
        	
                (d)  

              	
                Procedures.  Executive
      shall notify the Company in writing of any claim by the Internal Revenue
      Service that, if successful, would require the payment by the Company of a
      Gross-Up Payment.  Such notice shall be given as soon as
      practicable after Executive knows of such claim and shall apprise the
      Company of the nature of the claim and the date on which the claim is
      requested to be paid.  Executive agrees not to pay the claim
      until the expiration of the thirty-day period following the date on which
      Executive notifies the Company, or such shorter period ending on the date
      the Taxes with respect to such claim are due (the ‘Notice
      Period’).  If the Company notifies Executive in writing
      prior to the expiration of the Notice Period that it desires to contest
      the claim, Executive shall:  (i) give the Company any
      information reasonably requested by the Company relating to the claim;
      (ii) take such action in connection with the claim as the Company may
      reasonably request, including accepting legal representation with respect
      to such claim by an attorney reasonably selected by the Company and
      reasonably acceptable to Executive; (iii) cooperate with the Company in
      good faith in contesting the claim; and (iv) permit the Company to
      participate in any proceedings relating to the claim.  Executive
      shall permit the Company to control all proceedings related to the claim
      and, at its option, permit the Company to pursue or forgo any and all
      administrative appeals, proceedings, hearings, and conferences with the
      taxing authority in respect of such claim.  If requested by the
      Company, Executive agrees either to pay the tax claimed and sue for a
      refund or contest the claim in any permissible manner and to prosecute
      such contest to a determination  before any administrative
      tribunal, in a court of initial jurisdiction and in one or more appellate
      courts as the Company shall determine; provided, however, that, if the
      Company directs Executive to pay such claim and pursue a refund, the
      Company shall advance the amount of such payment to Executive on an
      after-tax and interest-free basis (the "Advance").  The
      Company's control of the contest related to the claim shall be limited to
      the issues related to the Gross-Up Payment and Executive shall be entitled
      to settle or contest, as the case may be, any other issues raised by the
      Internal Revenue Service or other taxing authority.  If the
      Company does not notify Executive in writing prior to the end of the
      Notice Period of its desire to contest the claim, the Company shall pay to
      Executive an additional Gross-Up Payment in respect of the excess
      parachute payments that are the subject of the claim, and Executive agrees
      to pay the amount of the Excise Tax that is the subject of the claim to
      the applicable taxing authority in accordance with applicable
      law.  The Advance, any additional Gross-Up Payments and the
      reimbursement of any related costs, expenses or taxes payable under this
      Section 4(d) and/or Section 4(f) shall be made on or before the end of the
      Executive’s taxable year following the taxable year in which any
      additional taxes are payable by the Executive or if no additional taxes
      are payable the Executive’s taxable year following the taxable year in
      which the audit or litigation is
closed.

              


      

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      
        	
                (e)  

              	
                Repayments.  If,
      after receipt by Executive of an Advance, Executive becomes entitled to a
      refund with respect to the claim to which such Advance relates, Executive
      shall pay the Company the amount of the refund (together with any interest
      paid or credited thereon after Taxes applicable thereto).  If,
      after receipt by Executive of an Advance, a determination is made that
      Executive shall not be entitled to any refund with respect to the claim
      and the Company does not promptly notify Executive of its intent to
      contest the denial of refund, then the amount of the Advance shall not be
      required to be repaid by Executive and the amount thereof shall offset the
      amount of the additional Gross-Up Payment then owing to
      Executive.

              


      

       

      
        	
                (f)  

              	
                Further
      Assurances.  The Company shall indemnify Executive and
      hold Executive harmless, on an after-tax basis, from any costs, expenses,
      penalties, fines, interest or other liabilities ("Losses") incurred by
      Executive with respect to the exercise by the Company of any of its rights
      under this Section 4, including any Losses related to the Company's
      decision to contest a claim or any imputed income to Executive resulting
      from any Advance or action taken on Executive's behalf by the Company
      hereunder.  Subject to the last sentence of Section 4(d), the
      Company shall pay all legal fees and expenses incurred under this Section
      4 and shall promptly reimburse Executive, or cause the Trust to reimburse
      Executive, for the reasonable expenses incurred by Executive in connection
      with any actions taken by the Company or required to be taken by Executive
      hereunder.  The Company shall also pay all of the fees and
      expenses of the Accounting Firm, including the fees and expenses related
      to the opinion referred to in Section
4(b).”

              


      

       

      4.           Section
5 of the CIC Agreement is hereby amended and restated in its entirety as
follows:

       

      “5.  Payment of
Severance Compensation.

       

      (a)           Unless
Executive elects otherwise on or before December 31, 2008 in accordance with
Section 5(b), the severance compensation set forth in Section 3(a) will be
payable in 36 equal monthly installments commencing on the first day of the
month following the month in which Executive’s employment
terminates.  Notwithstanding the foregoing, in the event that the
Executive is a ‘specified employee’ within the meaning of Code section 409A, the
first six monthly installments shall be paid in a lump sum on the first day of
the month following or coincident with the date that is six months following the
Executive’s termination of employment and all remaining monthly installments
shall be paid monthly.

       

      (b)           Executive
may make an election to receive severance compensation payable under Section
3(a) in a lump sum or to defer payments by filing a written election with the
Company on or before December 31, 2008, which specifies the time at which
payments are to be made and the amounts of such payments.  The payment
of such severance compensation must commence no earlier than the first business
day of the calendar year following the termination of Executive’s employment and
must be completed no later than the third calendar year following the attainment
of normal retirement age under the Retirement Plan.”

       

      5.           Section
12(d) of the CIC Agreement is hereby amended by adding the following sentence to
the end:

       

      “The invalidity or unenforceability of
any provision hereof or Exhibit hereto shall in no way affect the validity or
enforceability of any other provision hereof.”

       

      IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date written
below.

       

      ACCEPTED
AND
AGREED:                                                                           WEST
PHARMACEUTICAL SERVICES, INC.

       

      


       

      ___________________________________                                            /s/ Richard D.
Luzzi

      [NAME]                                                                                      Richard D.
Luzzi

                Vice President, Human
Resources

       

      DATED:   ____________________________                                         DATED:  __________________________________

       

      


       


      
        
          
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