exhibit1017.htm


    EXHIBIT
10.17


      


      


      


      


      


      


      WEST
PHARMACEUTICAL SERVICES, INC.

      SUPPLEMENTAL
EMPLOYEES’ RETIREMENT PLAN

      


      


      (Amended
and Restated Effective January 1, 2008, except as otherwise noted herein or
required by applicable law)

       

      


       

       

      


      


      


      


      


      


      


      


      
        


      

      
        PLAN
DOCUMENT

      

      
        


      

      



      
        
          
            K:\EDGAR\2009\10K\Exhibit
10.17 - SERP Restatement.doc

          

           


        

        
           


          
            

          

        

        
           


        

      


      WEST
PHARMACEUTICAL SERVICES, INC.

      SUPPLEMENTAL EMPLOYEES’
RETIREMENT PLAN

      


      This is
the West Pharmaceutical Services, Inc. Supplemental Employees’ Retirement Plan
(the “SERP”) adopted by
West Pharmaceutical Services, Inc. (the “Company”) on behalf of itself
and its subsidiaries to provide benefits in excess of those provided under the
West Pharmaceutical Services, Inc.  Employees’ Retirement Plan (the
“Qualified Retirement
Plan”) to certain eligible salaried employees of the Company and its
subsidiaries.    Hourly employees are not eligible to
participate in the SERP.

      


      


      1.           Effective
Date; Code Section 409A.  The SERP was originally effective as
of January 1, 1987 as the West Company, Incorporated Supplemental Employees
Retirement Plan, it is hereby amended, restated and renamed effective as of
January 1, 2008, except as otherwise required by applicable law, including
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).    The
SERP is intended to satisfy Code Section 409A and all of the official guidance
promulgated thereunder.  To the extent a provision in the SERP is
inconsistent with Code Section 409A, such provisions shall be deemed amended to
comply with Code Section 409A, to avoid the application of the penalty tax and
interest provided thereunder.

      


      2.           Eligibility.

      


      (a)           Effectiveness.  No
benefit under the SERP shall be payable to any salaried employee of the Company
or a subsidiary (an “Employee”)  unless
that Employee is credited with service under the SERP after December 31,
1986.

      


      (b)           Pre-2009
Eligibility.  On or before December 31, 2008, an Employee who
is a participant in the Qualified Retirement Plan shall only become a
participant (a “Participant”) in the SERP if
his or her accrued benefit under the Qualified Retirement Plan (“Accrued Benefit”) is less that
it would be if the Qualified Retirement Plan were not subject to: (i) the limit
imposed by section 401 (a) (17) of the Code or any successor provision of law on
the amount of annual compensation of each Qualified Retirement Plan participant
that may be taken into account, (ii) the limit imposed by section 415 of the
Code or any successor provision of law on the amount of annual benefits that may
be accrued.  The limits described in (a) and (b) shall be referred to
hereinafter, collectively, as the “Code Limits”), or (iii) made a
deferral under the Company’s Nonqualified Deferred Compensation Plan for
Designated Employees (or any successor nonqualified defined contribution plan)
(the “Nonqualified Deferred
Compensation Plan”).

      


      (c)           Eligibility in 2009 and
Beyond.  On and after January 1, 2009, an Employee shall only
be eligible to participate in the SERP if:

      


      (i)           Such
Employee was eligible in accordance with Section 2(b) of the SERP as of December
31, 2008, or

      


      (ii)           Such
Employee is salaried and either (A) an executive officer of the Company, or (B)
designated by the Company’s Vice President of Human Resources as participating
in the SERP and approved by the Compensation Committee (the “Committee”) of the Company’s
Board of Directors (the “Board”).

      
        
          
          

        

        
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      (d)           Notwithstanding
the foregoing, the Company’s Vice President of Human Resources may upon written
designation, with approval by the Committee, remove an Employee from prospective
participation in the SERP at any time.

      


      3.           SERP
Retirement Benefits; Vesting. 

      


      (a)           Restatement of the Qualified
Plan.  Effective January 1, 2007, the Qualified Retirement Plan
was amended to provide for a “Cash Balance Benefit”, as
defined in the Qualified Retirement Plan, for service on or after January 1,
2007.  The benefit accrued on and before December 31, 2006 is a
participant’s “Frozen
Benefit” as defined in the Qualified Retirement
Plan.   Each of those terms is used in the SERP, and is defined
as provided in the Qualified Retirement Plan.  The benefits provided
under the SERP were simultaneously modified to provide for an additional benefit
under the SERP on the same terms as those provided under the provisions of the
amended Qualified Retirement Plan.  Except as provided in the SERP or
as required by Code Section 409A, the Cash Balance Benefit and Frozen Benefit
shall be payable in accordance with the timing and method of distribution
provisions provided in the Qualified Retirement Plan.

      


      (b)           Frozen
Benefit.  The monthly normal retirement benefit calculated
under the SERP at a Participant’s attainment of age 65 shall be equal to the
benefit that would have been paid under the Qualified Retirement Plan if the
amount of the monthly benefit under the Qualified Retirement Plan as in effect
when the Participant attained age 65 (assuming payment in the form of a single
life annuity with no period certain) was calculated (i) by taking into account
compensation a Participant elected to defer (such amount not to include any
matching contributions paid by or due from the Company) under the Nonqualified
Deferred Compensation Plan, for purposes of determining his Average Annual
Earnings, and (ii) without taking the Code Limits into account, reduced by the
offset provided in Section 4.

      


      (c)           Cash Balance
Benefit.  The monthly normal retirement benefit calculated
under the SERP at a Participant’s attainment of age 65 shall be equal to the
benefit that would have been paid under the Qualified Retirement Plan if the
amount of the monthly benefit under the Qualified Retirement Plan as in effect
when the Participant attained age 65 (assuming payment in the form of a single
life annuity with no period certain) was calculated by crediting the
Participant’s Cash Balance Account under the Qualified Retirement Plan with a
“Pay Credit” (as defined
in the Qualified Retirement Plan) inclusive of (i) the amount such Participant
elected to defer (such amount not to include any matching contributions paid by
or due from the Company) under the Nonqualified Deferred Compensation
Plan  and (ii) amounts in excess of the Code Limits into account,
reduced by the offset provided in Section 4.

      


      (d)           Total
Benefit.  Subject to the offset in Section 4, a Participant’s
benefit under the SERP shall be sum of his Frozen Benefit calculated under
Section 3(b) and his Cash Balance Benefit calculated under Section
3(c).

      


      4.           Offset
for Qualified Retirement Plan Benefits.  The monthly benefit
payable under the SERP shall be the amount calculated under Section 3 reduced by
an offset for benefits payable under the Qualified Retirement Plan or any other
defined benefit pension plan maintained by the Company or any other employer
treated with the Company as a single employer under sections 414 (b), 414(c) or
414(m) of the Code (an “Affiliated
Plan”).  In calculating the offsets, the Code Limits shall be
applied, and both in applying such Code Limits and in otherwise calculating the
offsets, it shall be assumed that all benefits under a the Qualified Retirement
Plan or any other relevant plan will be paid in the form of a single life
annuity with no period certain.

      
        
          
          

        

        
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      5.           Service
and Vesting.

      


      (a)           Service
Credit.  An Employee’s credit for periods of service under the
SERP for all purposes (inclusive of vesting, eligibility and benefit accrual)
shall be co-extensive with his credit for the same types of periods of service
under the Qualified Retirement Plan and any Affiliated Plan unless the Committee
determines that additional credit for periods of service with a prior employer
or for any other reason should be granted under the SERP.

      


      (b)           Vesting.  A
Participant’s Frozen Benefit and Cash Balance benefit shall become vested, if at
all, in accordance with the applicable vesting schedules in the Qualified
Retirement Plan.

      


      6.           Grandfathering
of Benefits.

      


      (a)           Grandfathered Benefit
Definition and Accounting.  Benefits accrued and vested under
the SERP on and before December 31, 2004 (“Grandfathered Benefits”) shall
be separately accounted for under the SERP, and, to the extent required to
preserve grandfathered status under Code Section 409A administered consistent
with the SERP as in effect on December 31, 2004.  A Participant’s
Grandfathered Benefits shall be comprised solely of his or her Frozen Benefit
accrued through December 31, 2004.

      


      (b)           Non-Grandfathered Benefit
Definition and Accounting.  Benefits accrued and vested under
the SERP on and after January 1, 2005 (“Non-Grandfathered Benefits”)
shall also be separately accounted for under the SERP, and, to the extent
required to comply with Code Section 409A and avoid the application of the
penalty tax and interest thereunder administered consistent with Code Section
409A.  A Participant’s Non-Grandfathered Benefit shall be comprised of
any Frozen Benefit accrual that is earned and vested between January 1, 2005 and
December 31, 2007 and his or her entire Cash Balance Benefit.

      


      7.           Grandfathered
Benefits Retirement Provisions.  This Section 7 applies solely
to Grandfathered Benefits as described in Section 6(a).  Section 8
shall apply to Non-Grandfathered Benefits.

      


      (a)           Early
Retirement.

      


      (i)           With
respect to a Participant’s Grandfathered Benefit only, a Participant may elect
early retirement after attaining age 55, and before attaining age 65, provided
he has been credited with at least ten years of service as required in the
Qualified Retirement Plan.

      


      (ii)           The
early retirement benefit under the SERP shall be calculated in the same manner
as the normal retirement benefit under Sections 3 and 4 above, taking into
account only service and compensation to the Employee’s early retirement date,
and the benefit formula in effect on such date.

      


      (iii)           Any
portion of a participant’s Grandfathered Benefits payable upon retirement prior
to attaining age 65 shall be reduced in accordance with the table of early
retirement factors contained in the Qualified Retirement Plan as in effect at
the time of the Participant’s retirement.

      
        
          
          

        

        
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      (b)           Late
Retirement.  The Grandfathered Benefit payable to a Participant
retiring after age 65 shall be calculated in the same manner as the normal
retirement benefit under Sections 3 and 4 above, taking into account service and
compensation to the Participant’s late retirement date, and the benefit formula
in effect under the Qualified Retirement Plan on such date.

      


      (c)           Vested-Terminated
Benefit.

      


      (i)           Subject
to Section 12 regarding disability benefits, the Grandfathered Benefit payable
to a Participant who is vested in his Accrued Benefit under the Qualified
Retirement Plan and who terminates employment with the Company and its
subsidiaries other than for early, normal or late retirement (a “Vested-Terminated
Participant”) shall be calculated in the same manner as the normal
retirement benefit, taking into account service and compensation to the
Participant’s date of severance from service, and the benefit formula in effect
on such date.

      


      (ii)           Any
Grandfathered Benefit payable to a Vested-Terminated Participant before such
Participant’s attainment of age 65 shall be reduced 5% for each year by which
the benefit commencement date precedes his or her attainment of age
65.

      


      8.           Non-Grandfathered
Benefit Retirement Provisions.  This Section 8 applies only to
Non-Grandfathered Benefits as described in Section 6(b).  Section 7
shall apply to Grandfathered Benefits.

      


      (a)           Early Retirement;
Termination Benefit.

      


      (i)           With
respect to a Participant’s Non-Grandfathered Frozen Benefit only, a Participant
who terminates employment will be required to receive a distribution six months
following termination under Section 14 of the SERP.  Such
Participant’s Non-Grandfathered Frozen Benefit shall be calculated, in the same
manner as the normal retirement benefit under Section 3 and 4 above, taking into
account only service and compensation to the Employee’s termination date, and
the benefit formula in effect on such date.

      


      (ii)           Subject
to Section 7(a)(iii), any portion of a participant’s Non-Grandfathered Frozen
Benefit payable upon retirement prior to attaining age 65 shall be reduced in
accordance with the table of early retirement factors contained in the Qualified
Retirement Plan as in effect at the time of the Participant’s retirement but
only if such Participant has reached age 55 and accrued ten years of
service.

      


      (iii)           If
such Participant has not reached age 55 and accrued ten years of service at the
time of his or her termination of employment, Section 7(c) and not this Section
7(a) shall apply.

      


      (iv)           A
Participant’s Non-Grandfathered Cash Balance Benefit shall be calculated as
described in Sections 3 and 4 above, and, shall, consistent with the Qualified
Retirement Plan, not be reduced for commencement prior to normal retirement age
under the Qualified Retirement Plan.

      


      (b)           Late
Retirement.

      


      (i)           The
Non-Grandfathered Benefit (Frozen Benefit and Cash Balance Benefit, as
applicable), payable to a Participant retiring after age 65 shall be calculated
in the same manner as the normal retirement benefit under Sections 3 and 4
above, taking into account service and compensation to the Participant’s late
retirement date, and the benefit formula in effect under the Qualified
Retirement Plan on such date.

      
        
          
          

        

        
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      (ii)           A
Participant’s Non-Grandfathered Cash Balance Benefit shall be calculated as
described in Sections 3 and 4 above.  Because a participant must
receive a distribution under the SERP six month following
termination  in accordance with Section 14, such Participant’s
Non-Grandfathered Cash Balance Benefit will only be adjusted in a manner
consistent with the Qualified Retirement Plan for the period between such
Participant’s termination date and the date distribution of such Benefit is made
under the SERP.

      


      (c)           Vested-Terminated
Benefit.

      


      (i)           Subject
to Section 12 regarding disability benefits, the Non-Grandfathered Frozen
Benefit only payable to a Participant who is a Vested-Terminated Participant
shall be calculated in the same manner as the normal retirement benefit under
Sections 3 and 4, taking into account service and compensation to the
Participant’s date of severance from service, and the benefit formula in effect
on such date.

      


      (ii)           Any
Non-Grandfathered Frozen Benefit payable to a Vested-Terminated Participant
before such Participant’s attainment of age 65 shall be reduced 5% for each year
by which the benefit commencement date precedes his or her attainment of age
65.

      


      (iii)           A
Participant’s Non-Grandfathered Cash Balance Benefit shall be calculated as
described in Sections 3 and 4 above.  Because a Participant must
receive a distribution under the SERP six month following
termination  in accordance with Section 14, such Participant’s
Non-Grandfathered Cash Balance Benefit will only be adjusted in a manner
consistent with the Qualified Retirement Plan for the period between such
Participant’s termination date and the date distribution of such Benefit is made
under the SERP.

      


      12.           Disability
Benefit.  Consistent with
the Qualified Retirement Plan, no Benefit is payable under the SERP solely due
to a Participant incurring a “Total and Permanent
Disability”  (as defined in the Qualified Retirement
Plan).  A Participant’s Frozen Benefit and Cash Balance Benefit are
increased during his or her period of Total and Permanent Disability as
described in the Qualified Retirement Plan and in the same manner as the normal
retirement benefit, taking into account service and compensation to the
Participant’s date of termination of employment, and the benefit formula in
effect on such termination.

      


      13.           Form and
Timing of Grandfathered Benefits Payable under the SERP. This Section 13 solely
governs Grandfathered Benefits.  Non-Grandfathered Benefits are
subject to Section 14.

      


      (a)           Normal
Form.  Subject to the permitted lump sum election under Section
13(b) below, the Grandfathered Benefit payable to a Participant shall be paid in
the same form and at the same time or times that benefits are paid to the
Participant under the Qualified Retirement Plan.  The actuarial
factors and assumptions to be used to convert the benefits payable hereunder
from a single life annuity with no period certain to any other form of benefit
shall be those set forth in the Qualified Retirement Plan.

      


      (b)           Special Lump Sum
Election.  A Participant may elect, by written notice delivered
to the Committee no later than September 30 of the calendar year preceding the
calendar year in which the Participant’s Grandfathered Benefit under the
Qualified Retirement Plan is to begin, to receive his or her Grandfathered
Benefit payable under the SERP in a single cash lump sum, payable at the same
time that benefits begin to be paid to that Participant under the Qualified
Retirement Plan.  The actuarial factors and assumptions to be used to
convert the Grandfathered Benefits payable hereunder from a single life annuity
with no period certain shall be those set forth in the Qualified Retirement
Plan, except that the value of lump sum distributions made on or after July 1,
1995 shall be determined using the annual rate of interest on 30- year Treasury
securities for the August preceding the year of distribution and the mortality
table prescribed by the Internal Revenue Service pursuant to Section
417(e)(3)(A)(ii)(I) of the Code.

      
        
          
          

        

        
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      14.           Form and
Timing of Non-Grandfathered Benefits Payable under the SERP.   This
Section 14 solely governs Non-Grandfathered Benefits.  Grandfathered
Benefits are subject to Section 13.

      


      (a)           Timing and Form of
Payment.  The Non-Grandfathered Benefit (including both the
applicable portion of a Participant’s Frozen Benefit and his or her entire Cash
Balance Benefit) shall be payable to a Participant under the SERP solely in a
cash lump sum during the month following the month that contains that date that
is six months following a Participant’s termination of
employment.  This cash lump sum shall be paid even if a Participant is
re-hired following his termination of employment, but only to the extent
permitted by Section 409A of the Code.

      


      (b)           Cash Balance Benefit Lump
Sum.  A Participant’s Cash Balance Benefit shall be credited
with Interest Credits (as defined in the Qualified Retirement Plan) during this
six month period.  The Cash Balance Benefit shall be calculated in a
manner consistent with the provisions applicable to the “Termination Benefit” payable
under the Qualified Retirement Plan.

      


      (c)           Lump Sum for Applicable Portion of a
Participant’s Frozen Benefit.  With respect to the applicable
portion of a Participant’s Frozen Benefit, the actuarial factors and assumptions
to be used to convert the Non-Grandfathered Benefits payable hereunder from a
single life annuity with no period certain shall be those set forth in the
Qualified Retirement Plan, except that the value of lump sum distributions made
on or after July 1, 1995 shall be determined using the annual rate of interest
on 30- year Treasury securities for the August preceding the year of
distribution and the mortality table prescribed by the Internal Revenue Service
pursuant to Section 417(e)(3)(A)(ii)(I) of the Code.

      


      15.           Death
Benefit Before Commencement of Retirement Income Benefit.

      


      (a)           Amount of Frozen
Benefit.  Following the death of a Participant before benefits
under the SERP have commenced, the Participant’s surviving spouse or, if the
Participant dies before benefits under the SERP have commenced leaving a “dependent spouse” or “orphan children” (as such
terms are defined in the Qualified Retirement Plan), such spouse or orphan
children shall be entitled to a death benefit with respect to a Participant’s
Frozen Benefit (inclusive of both Grandfathered Benefit and Non-Grandfathered
Benefit portions) equal to the excess, if any, of (i) the Frozen Benefit death
benefit that would be payable under the Qualified Retirement Plan and any
Affiliated Plan if such Plans were not subject to the Code Limits and was
calculated using amounts deferred under the Company’s over (b) the Frozen
Benefit death benefit that is actually payable under the Qualified Retirement
Plan and any Affiliated Plan.

      
        
          
          

        

        
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      (b)           Amount Cash Balance
Benefit.  Following the death of a Participant before benefits
under the SERP have commenced, the Participant’s beneficiary shall be entitled
to a death benefit with respect to a Participant’s Cash Balance Benefit equal to
the excess, if any, of (i) the Cash Balance Benefit death benefit that would be
payable under the Qualified Retirement Plan and any Affiliated Plan if such
Plans were not subject to the Code Limits and was calculated using amounts
deferred under the Company’s over (b) the Cash Balance Benefit death benefit
that is actually payable under the Qualified Retirement Plan and any Affiliated
Plan.

      


      (c)           Timing of Payment of
Grandfathered Benefit.  The Grandfathered Benefit death benefit
payments shall be made in the same form, at the same time, and for the same
duration as the death benefits payable under the Qualified Retirement
Plan.

      


      (d)           Timing of Payment of
Non-Grandfathered Benefit.  The Non-Grandfathered death benefit
(inclusive of the applicable portion of the Participant’s Frozen Benefit)
payment shall be made in a cash lump sum during the month following the month a
Participant’s death.

      


      (e)           Exclusive Pre-Retirement
Death Benefits.  No other death benefits shall be payable under
the SERP following the death of a Participant before benefits under the SERP
have commenced.

      


      16.           Death
Benefit After Commencement of Retirement Income Benefit. Upon a
Participant’s death after benefits under the SERP have commenced, the
Participant’s beneficiary (as determined in accordance with the Qualified
Retirement Plan) shall be entitled to the death benefit, if any, payable
following the Participant’s death under the form of benefit in which the benefit
was being paid to the participant before his death.  This Section 16
shall not apply to a Participant’s Non-Grandfathered benefits, which are solely
payable in a single, cash lump sum.

      


      17.           Unsecured
Obligation of the Company.  The
Company’s obligations under the SERP shall be the general unsecured obligations
of the Company.  The Company shall be under no obligation to establish
any separate fund, purchase any annuity contract, or in any other way make
special provision or specifically earmark any funds for the payment of any
amounts called for under the SERP, nor shall the SERP or any actions taken under
or pursuant to the SERP be construed to create a trust of any kind, or a
fiduciary relationship between the Company and any Participant, his or her
designated beneficiary, executors or administrators, or any other person or
entity.  If the Company chooses to establish such a fund or purchase
such an annuity contract or make any other arrangement to provide for the
payment of any amounts called for under the SERP, such fund contract or
arrangement shall remain part of the general assets of the Company, and no
person claiming benefits under the SERP shall have any right, title, or interest
in or to any such fund, contract or arrangement.

       

      18.           Administration.  The
SERP will be administered by the Committee.

       

      (a) The Committee shall be the named
fiduciary for purposes of the claims procedure pursuant to Section 19 and shall
have authority to act to the full extent of its absolute discretion
to:

       

      (ii) interpret the SERP;

       

      (iii) resolve and determine all disputes or
questions arising under the SERP subject to the provisions of Section 19,
including the power to determine the rights of Participants and their
beneficiaries, and their respective benefits, and to remedy any ambiguities,
inconsistencies or omissions in the SERP;

       

      
        
          
          

        

        
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      (iv) create and revise rules and procedures
for the administration of the SERP and prescribe such forms as may be required
for Participants to make elections under, and otherwise participate in, the
SERP; and

       

      (v) take any other actions and make any
other determinations as it may deem necessary and proper for the administration
of the SERP.

       

      (b) Any expenses incurred in the
administration of the SERP will be paid by the Company or the
Employer.

       

      (c) Except as the Committee may otherwise
determine (and subject to the claims procedure set forth in Section 19), all
decisions and determinations by the Committee shall be final and binding upon
all Participants and their designated beneficiaries.

       

      (d) Neither the Secretary nor any member of
the Committee shall participate in any matter involving any questions relating
solely to his or her own participation or benefits under the
SERP.  The Committee shall be entitled to rely conclusively upon, and
shall be fully protected in any action or omission taken by it in good faith
reliance upon the advice or opinion of any persons, firms or agents retained by
it, including but not limited to accountants, actuaries, counsel and other
specialists. Nothing in the SERP shall preclude the Company from indemnifying
the Secretary or members of the Committee for all actions under the SERP, or
from purchasing liability insurance to protect such persons with respect to the
SERP.

       

      19.           Claims
Procedure.  The Company  shall administer a claims
procedure as follows:

       

      (a)          Initial
Claim.  A Participant or his or her beneficiary who believes
that he or she is entitled to benefits under the SERP (the “Claimant”), or the Claimant’s
authorized representative acting on behalf of such Claimant, must make a claim
for those benefits by submitting a written notification of his or her claim of
right to such benefits.  Such notification must be on the form and in
accordance with the procedures established by the Company.  No benefit
shall be paid under the SERP until a proper claim for benefits has been
submitted.

       

      (b)           Procedure for
Review.  The Committee shall establish administrative processes
and safeguards to ensure that all claims for benefits are reviewed in accordance
with the SERP document and that, where appropriate, Plan provisions have been
applied consistently to similarly situated Claimants.  Any
notification to a Claimant required hereunder may be provided in writing or by
electronic media, provided that any electronic notification shall comply with
the applicable standards imposed under 29 C.F.R. §2520.104b-1(c).

       

      (c)           Claim Denial
Procedure.  If a claim is wholly or partially denied, the
Committee shall notify the Claimant within a reasonable period of time, but not
later than 90 days after receipt of the claim, unless the Committee determines
that special circumstances require an extension of time for processing the
claim.  If the Committee determines that an extension of time for
processing is required, written notice of the extension shall be furnished to
the Claimant prior to the termination of the initial 90-day
period.  In no event shall such extension exceed a period of 180 days
from receipt of the claim.  The extension notice shall indicate: (i)
the special circumstances necessitating the extension and (ii) the date by which
the Committee expects to render a benefit determination.  A benefit
denial notice shall be written in a manner calculated to be understood by the
Claimant and shall set forth:  (i) the specific reason or reasons
for the denial, (ii) the specific reference to the SERP provisions on which
the denial is based, (iii) a description of any additional material or
information necessary for the Claimant to perfect the claim, with reasons
therefor, and (iv) the procedure for reviewing the denial of the claim and the time limits
applicable to such procedures, including a statement of the Claimant’s right to
bring a legal action under section 502(a) of Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) following an adverse
benefit determination on review.  

       

      
        
          
          

        

        
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      (d)           Appeal
Procedure.  In the case of an adverse benefit determination,
the Claimant or his
or her representative shall have the opportunity to appeal to the Committee for
review thereof by requesting such review in writing to the Board within 60 days
of receipt of notification of the denial.  Failure to submit a proper
application for appeal within such 60 day period will cause such claim to be
permanently denied.  The Claimant or his or her
representative shall be provided, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information relevant
to the claim.  A document, record or other information shall be deemed
“relevant” to a claim in accordance with 29 C.F.R.
§2560.503-1(m)(8).  The Claimant or his or her representative shall
also be provided the opportunity to submit written comments, documents, records
and other information relating to the claim for benefits.  The Board
shall review the appeal taking into account all comments, documents, records and
other information submitted by the Claimant or his or her representative
relating to the claim, without regard to whether such information was submitted
or considered in the initial benefit determination.

       

      (e)           Decision on
Appeal.  The Board shall notify a Claimant of its decision on
appeal within a reasonable period of time, but not later than 60 days after
receipt of the Claimant’s request for review, unless the Committee determines
that special circumstances require an extension of time for processing the
appeal.  If the Committee determines that an extension of time for
processing is required, written notice of the extension shall be furnished to
the Claimant prior to the termination of the initial 60-day
period.  In no event shall such extension exceed a period of 60 days
from the end of the initial period.  The extension notice shall
indicate: (i) the special circumstances necessitating the extension and (ii) the
date by which the Committee expects to render a benefit
determination.  An adverse benefit decision on appeal shall be written
in a manner calculated to be understood by the Claimant and shall set
forth:  (i) the specific reason or reasons for the adverse
determination, (ii) the specific reference to the SERP provisions on which
the denial is based, (iii) a statement that the Claimant is entitled to
receive, upon request and free of charge, reasonable access to and copies of all
documents, records, and other information relevant to the Claimant’s claim (the
relevance of a document, record or other information will be determined in
accordance with 29 C.F.R. §2560-1(m)(8)) and (iv) a statement of the
Claimant’s right to bring a legal action under section 502(a) of
ERISA.

       

      (f)           Litigation.  In
order to operate and administer the claims procedure in a timely and efficient
manner, any Claimant whose appeal with respect to a claim for benefits has been
denied, and who wants to commence a legal action with respect to such claim,
must commence such action in a court of competent jurisdiction within
90 days of receipt of notification of such denial.  Failure to
file such action by the prescribed time will forever bar the commencement of
such action.

       

      (g)           Disputes; Enforcement of
Rights.  All reasonable legal and other fees and expenses
incurred by the Claimant in connection with any disputed claim regarding any
right or benefit provided for in the SERP shall be paid by the Company, to the
extent permitted by law, provided that the Claimant prevails on the merits of
his or her claim in material part as the result of litigation, arbitration or
settlement.

       

      20.           Delay in
Distributions.  Notwithstanding anything in the SERP to the
contrary, distributions under the SERP may be delayed, to the extent permitted
by Code Section 409A if either (a) the ability of the Company to remain a going
concerned is jeopardized, or (b) such delay is necessary to comply with
applicable law.

       

      21.           Top Hat
and Non-Qualified Status.  The SERP is intended to be a top-hat
plan within the meaning of ERISA.  The SERP is an unfunded plan for
purposes of ERISA and the Code and is not qualified under section 401(a) of the
Code.

       

      22.           Withholding
of Taxes.  The rights of a Participant (and his or her
beneficiaries) to payments under the SERP shall be subject to the Company’s
obligations at any time to withhold from such payments any income or other tax
on such payments.

       

      23.           Assignability.  No
portion of a Participant’s benefits under the SERP may be assigned or
transferred in any manner, nor shall any of the those SERP benefits be subject
to anticipation, voluntary alienation or involuntary alienation.

       

      24.           Amendment
and Termination.  The Company
reserves the right to amend or terminate the SERP at any time by action of the
Board, but shall not reduce the benefits accrued under the SERP by any
Participant up to the date of such actions.

      



      
        
          
             

            


          

           


        

        
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