-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RcZkDRGQE8oRxkOxjfifulS6q4v8aPzT6zv2zDY9OvJIQTSnYX/r9w6Ypx3Ls1ir y09u+ogs92qUCdEN6R7pKg== 0000950109-96-008640.txt : 19961225 0000950109-96-008640.hdr.sgml : 19961225 ACCESSION NUMBER: 0000950109-96-008640 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19961224 EFFECTIVENESS DATE: 19961224 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: RHONE POULENC RORER INC CENTRAL INDEX KEY: 0000217028 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 231699163 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-18707 FILM NUMBER: 96685522 BUSINESS ADDRESS: STREET 1: 500 ARCOLA RD STREET 2: P O BOX 1200 M/S 5B14 CITY: COLLEGEVILLE STATE: PA ZIP: 19426-0107 BUSINESS PHONE: 6104548000 FORMER COMPANY: FORMER CONFORMED NAME: RORER GROUP INC DATE OF NAME CHANGE: 19900731 FORMER COMPANY: FORMER CONFORMED NAME: RORER AMCHEM INC DATE OF NAME CHANGE: 19770604 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on December 23, 1996 Registration No. 33- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 --------------------- FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 --------------------- RHONE-POULENC RORER INC. (Exact name of registrant as specified in its charter) Pennsylvania 23-1699163 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 500 Arcola Road Collegeville, PA 19426-0107 (Address of principal executive offices) (Zip Code) RHONE-POULENC RORER INC. 1995 EQUITY COMPENSATION PLAN (Full title of the plan) RICHARD T. COLLIER, ESQ. Rhone-Poulenc Rorer Inc. 500 Arcola Road Collegeville, PA 19426-0107 (Name and address of agent for service) (610) 454-8000 (Telephone number, including area code, of agent for service) ----------------------- Copy of all communications to: JAMES W. JENNINGS, ESQ. Morgan, Lewis & Bockius LLP 2000 One Logan Square Philadelphia, PA 19103 (215) 963-5726 CALCULATION OF REGISTRATION FEE
Title of securities Amount to be Proposed maximum Proposed maximum Amount of to be registered registered offering price aggregate registration fee per share (1) offering price (1) - -------------------------------------------------------------------------------------------- Common Stock, 5,000,000 $74.813 $374,065,000 $113,354 without par value - --------------------------------------------------------------------------------------------
(1) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the purpose of calculating the registration fee, based upon the average of the high and low sales prices of shares of Common Stock on December 18, 1996, as reported on the New York Stock Exchange. This Registration Statement on Form S-8 (the "Registration Statement") filed by Rhone-Poulenc Rorer Inc. (the "Registrant") relates to 5,000,000 shares (the "Shares") of the Company's Common Stock, without par value (the "Common Stock"), issuable pursuant to the Rhone-Poulenc Rorer Inc. 1995 Equity Compensation Plan (the "Plan"). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. --------------------------------------- The following documents, as filed by the Registrant with the Securities and Exchange Commission (the "Commission"), are incorporated by reference in this Registration Statement: (a) Annual Report on Form 10-K, filed with the Commission on March 18, 1996 for the fiscal year ended December 31, 1995; (b) Quarterly Report on Form 10-Q filed with the Commission on May 10, 1996 for the quarter ended March 31, 1996; (c) Quarterly Report on Form 10-Q filed on August 13, 1996 for the quarter ended June 30, 1996; (d) Quarterly Report on Form 10-Q filed on November 6, 1996 for the quarter ended September 30, 1996; (e) Proxy Statement for the Annual Meeting of Stockholders held on May 3, 1996; and (f) The descriptions of the Common Stock of the Registrant set forth in the Registrant's Registration Statements pursuant to Section 12 of the Exchange Act, and any amendment or report filed for the purpose of updating such description. All reports and other documents filed by the Registrant and the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, after the date of this registration statement and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document that is also incorporated by reference herein) modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof. Item 4. Description of Securities. ------------------------- Not applicable. 1 Item 5. Interests of Named Experts and Counsel. -------------------------------------- The consolidated financial statements of the Registrant and its subsidiaries included in the Registrant's Report on Form 10-K for the fiscal year ending December 31, 1995 and incorporated by reference in this registration statement have been audited by Coopers & Lybrand LLP, independent accountants, as set forth in their report contained therein. Such financial statements are, and audited annual financial statements to be included in subsequently filed documents will be, incorporated herein in reliance upon the reports of Coopers & Lybrand LLP pertaining to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission) given upon the authority of such firm as experts in accounting and auditing. Item 6. Indemnification of Directors and Officers. ----------------------------------------- Section 1741 of the Pennsylvania Business Corporation Law (the "PBCL") provides the Company the power to indemnify any officer or director acting in his or her capacity as a representative of the Company who was or is a party or is threatened to be made a party to any action or proceeding against expenses, judgments, penalties, fines and amounts paid in settlement in connection with such action or proceeding whether the action was instituted by a third party or arose by or in the right of the Company. Generally, the only limitation on the ability of the Company to indemnify its officers and directors is if the act violates a criminal statute or if the act or failure to act is finally determined by a court to have constituted willful misconduct or recklessness. The Bylaws of the Registrant provide that the Registrant shall indemnify any and all directors and officers of the Registrant and any other person designated as an "indemnified representative" by the board of directors of the Registrant (which may, but need not, include any person serving at the request of the Registrant, as a director, officer, fiduciary or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other entity or enterprise) (each, an "indemnified representative") against any liability incurred in connection with any threatened, pending or completed action, suit, appeal or other proceeding of any nature, whether civil, criminal, administrative or investigative, whether formal or informal, and whether brought by or in the right of the Registrant, a class of its security holders or otherwise (each, a "Proceeding") in which the indemnified representative may be involved as a party or otherwise, by reason of the fact that such person is or was serving in an indemnified capacity, including without limitation liabilities resulting from any actual or alleged breach or neglect of duty, error, misstatement or misleading statement, negligence, gross negligence or act giving rise to strict or products liability, except where such indemnification is expressly prohibited by applicable law or where conduct of the indemnified representative has been determined (as provided in the Bylaws) to constitute willful misconduct or recklessness or unlawful self- dealing, sufficient in the circumstances to bar indemnification against liabilities arising from the conduct. If an indemnified representative is entitled to indemnification in respect of a portion, but not all, of any liabilities to which such person may be subject, the Registrant shall indemnify such indemnified representative to the maximum extent for such portion of the liabilities. The termination of a Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendre or its equivalent shall not, of itself, create a presumption that the indemnified representative is not entitled to indemnification. The Bylaws provide for the advancement of expenses to an indemnified party upon receipt of an undertaking by the party to repay those amounts if it is finally determined that the indemnified party is not entitled to indemnification. An indemnified representative shall be deemed to have discharged such person's duty to the Registrant if he or she has relied in good faith on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by any of the following: (1) one or more officers or employees of the Registrant whom the indemnified representative reasonably believes to be reliable and competent with respect to the matter presented; (2) legal counsel, public accountants or other persons as to matters that the indemnified representative reasonably believes are within the person's professional or expert competence; or 2 (3) a committee of the board of directors on which he or she does not serve as to matters within its area of designated authority, which committee he or she reasonably believes to merit confidence. The Bylaws authorize the Company to take steps to ensure that all persons entitled to indemnification are properly indemnified, including, if the board of directors so determines, purchasing and maintaining insurance. The Company currently maintains directors and officers insurance. Item 7. Exemption from Registration Claimed. ----------------------------------- Not applicable. Item 8. Exhibits. -------- The exhibits filed as part of this Registration Statement are as follows: Exhibit Number Exhibit ------ ------- 5 Opinion re legality 23.1 Consent of Coopers & Lybrand LLP 23.2 Consent of Richard T. Collier, Senior Vice President and General Counsel of the Registrant (included in Exhibit 5) 24 Power of Attorney 99 Rhone-Poulenc Rorer Inc. 1995 Equity Compensation Plan Item 9. Undertakings. ------------ The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; 3 Provided, however, that subparagraphs (a)(1)(i) and (a)(1)(ii) of -------- ------- this section do not apply if the information required to be included in a post-effective amendment by those subparagraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 4 SIGNATURES The Registrant. Pursuant to the requirements of the Securities -------------- Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Collegeville, Pennsylvania, on the 20th day of December, 1996. RHONE-POULENC RORER INC. By: /s/ Michel de Rosen ----------------------------------------- MICHEL DE ROSEN President and Chief Executive Officer Pursuant to the requirements of the Securities Act 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
Signature Capacity Date --------- -------- ---- Director - -------------------------------- Jean-Marc Bruel /s/ Jean-Jacques Bertrand* Director December 20, 1996 - -------------------------------- Jean-Jacques Bertrand /s/ Robert E. Cawthorn* Director December 20, 1996 - -------------------------------- Robert E. Cawthorn /s/ Michel de Rosen Chairman and Chief Executive Officer December 20, 1996 - -------------------------------- Director Michel de Rosen /s/ Charles-Henri Filippi* Director December 20, 1996 - -------------------------------- Charles-Henri Filippi /s/ Dale F. Frey* Director December 20, 1996 - -------------------------------- Dale F. Frey /s/ Claude Helene* Director December 20, 1996 - -------------------------------- Claude Helene Director - -------------------------------- Michael H. Jordan /s/ Manfred E. Karobath, M.D.* Director December 20, 1996 - -------------------------------- Manfred E. Karobath, M.D. /s/ Igor Landau* Director December 20, 1996 - -------------------------------- Igor Landau /s/ Patrick Langlois Executive Vice President and December 20, 1996 - -------------------------------- Chief Financial Officer Patrick Langlois /s/ Philippe Maitre Vice President and Controller December 20, 1996 - -------------------------------- (Principal Accounting Officer) Philippe Maitre
5
Signature Capacity Date --------- -------- ---- /s/ Peter J. Neff* - -------------------------------- Director December 20, 1996 Peter J. Neff /s/ James S. Riepe* Director December 20, 1996 - -------------------------------- James S. Riepe /s/ Jean-Pierre Tirouflet* Director December 20, 1996 - -------------------------------- Jean-Pierre Tirouflet
* By: /s/ Richard T. Collier -------------------------------------- RICHARD T. COLLIER Senior Vice President and General Counsel (Attorney-in-fact) 6 INDEX TO EXHIBITS
Sequentially Exhibit Numbered Number Exhibit Page ------- ------- ---- 5 Opinion re legality 23.1 Consent of Coopers & Lybrand LLP 23.2 Consent of Richard T. Collier, Senior Vice President and General Counsel of the Registrant (included in Exhibit 5) 24 Power of Attorney 99 Rhone-Poulenc Rorer Inc. 1995 Equity Compensation Plan
EX-5 2 OPINION RE LEGALITY (COMMON STOCK OF REGISTRANT) Exhibit 5 --------- December 23, 1996 Rhone-Poulenc Rorer Inc. 500 Arcola Road Collegeville, PA 19426-0107 Ladies/Gentlemen: Rhone-Poulenc Rorer Inc. (the "Company") has requested my opinion, as General Counsel of the Company, in connection with the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Act"), with respect to 5,000,000 shares of the Company's Common Stock, without par value (the "Shares"), which are issuable pursuant to the Rhone-Poulenc Rorer Inc. 1995 Equity Compensation Plan (the "Plan"). I or attorneys under my supervision have examined such records and have made such examination of law as I deem appropriate in connection with rendering such opinion. I have also assumed that the registration provisions of the Act and of such securities or "Blue Sky" laws as may be applicable shall have been complied with. Based thereon, it is my opinion that, when issued and delivered in accordance with the provisions of the Plan, the Shares will be legally issued, fully paid and non-assessable. I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent I do not admit that I am in the category of persons whose consent is required under Section 7 for the Securities Act of 1933 or the rules and regulations for the Securities and Exchange Commission thereunder. /s/ Richard T. Collier ----------------------------------- Richard T. Collier Senior Vice President and General Counsel EX-23.1 3 CONSENT OF COOPERS & LYBRAND LLP Exhibit 23.1 ------------ CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement of Rhone-Poulenc Rorer, Inc. on Form S-8 of our report dated January 26, 1996 on our audits of the consolidated financial statements of Rhone-Poulenc Rorer, Inc. as of December 31, 1995 and 1994 and for the years ended December 31, 1995, 1994, and 1993, which report is included in the Company's Annual Report on Form 10-K for the year ended December 31, 1995. We consent to the references to our firm under the caption "Experts." COOPERS & LYBRAND LLP /s/ Coopers & Lybrand LLP Philadelphia, Pennsylvania December 23, 1996 EX-24 4 POWER OF ATTORNEY Exhibit 24 ---------- POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, does hereby nominate, constitute and appoint Richard B. Young, Richard T. Collier and Patrick Langlois, or any of them, as his agent and attorney-in-fact, in his name to execute on behalf of the undersigned a Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in connection with the registration under said Act of shares of Common Stock of Rhone-Poulenc Rorer Inc. (the "Company"), the authority herein given to include execution of amendments to any part of such Registration Statement and generally to do and perform all things necessary to be done in the premises as fully and effectively in all respects as the undersigned could do if personally present. IN WITNESS WHEREOF, this power of attorney has been executed in counterparts by individuals listed below as of the 30th day of October 1996. /s/ Jean-Marc Bruel /s/ Manfred E. Karobath, M.D. - --------------------------- ----------------------------- Jean-Marc Bruel Manfred E. Karobath, M.D. /s/ Jean-Jacques Bertrand - --------------------------- ----------------------------- Jean-Jacques Bertrand Michael H. Jordan /s/ Robert E. Cawthorn /s/ Igor Landau - --------------------------- ----------------------------- Robert E. Cawthorn Igor Landau /s/ Michel de Rosen /s/ Peter J. Neff - --------------------------- ----------------------------- Michel de Rosen Peter J. Neff /s/ Charles-Henri Filippi /s/ James S. Riepe - --------------------------- ----------------------------- Charles-Henri Filippi James S. Riepe /s/ Dale F. Frey /s/ Jean-Pierre Tirouflet - --------------------------- ----------------------------- Dale F. Frey Jean-Pierre Tirouflet /s/ Claude Helene - --------------------------- Claude Helene EX-99 5 EQUITY COMPENSATION PLAN Exhibit 99 ---------- RHONE-POULENC RORER INC. 1995 EQUITY COMPENSATION PLAN ----------------------------- [Amended and Restated Effective November 1, 1996] The purpose of the Rhone-Poulenc Rorer Inc. 1995 Equity Compensation Plan (the "Plan") is (i) to authorize the Executive Personnel and Compensation Committee (the "Committee") of the Board of Directors to provide designated officers (including officers who are also directors), other employees and directors who are not employees ("Non-Employee Directors") of Rhone-Poulenc Rorer Inc. and its subsidiaries (hereinafter collectively referred to as the "Company") and principals of organizations involved with the Company on significant projects ("Key Advisors") with certain rights to acquire common stock of the Company and (ii) to provide for the grant of incentive stock options, nonqualified stock options and stock appreciation rights. The Company believes that the Plan will cause the participants to contribute materially to the growth of the Company, thereby benefitting the Company's shareholders and will align the economic interests of the participants with those of the shareholders. This Plan shall serve as the successor equity incentive program to the Rorer Group Inc. Equity Compensation Plan. 1. Administration -------------- The Plan shall be administered and interpreted by a committee (the "Committee") consisting of not less than two persons appointed by the Board of Directors of the Company, all of whom shall be non-employee directors as defined under Rule 16b-3 under the Securities Exchange Act of 1934 (the "Exchange Act") and "outside directors" as defined under Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code") and related Treasury regulations. The Committee shall have the sole authority to determine (i) the employees and Key Advisors to whom options and awards shall be granted under the Plan, (ii) the type, size and terms of the awards to be made to each such individual, (iii) the time when the awards will be granted and the duration of the exercise period and (iv) any other matters arising under the Plan. Non-Employee Directors shall receive grants only pursuant to the provisions of Section 6. The Committee shall have full power and authority to administer and interpret the Plan, to make factual determinations and to adopt or amend such rules, regulations, agreements and instruments for implementing the Plan and for conduct of its business as it deems necessary or advisable, in its sole discretion. The Committee's interpretations of the Plan and all determinations made by the Committee pursuant to the powers vested in it hereunder shall be conclusive and binding on all persons having any interests in the Plan or in any awards granted hereunder. All powers of the Committee shall be executed in its sole discretion, in the best interest of the Company and in keeping with the objectives of the Plan and need not be uniform as to similarly situated individuals. Notwithstanding the foregoing, administration of Section 6 with respect to nondiscretionary 1 grants to Non-Employee Directors is intended to be self-executing in accordance with the express terms and conditions of Section 6. However, to the extent that administrative determinations are required with respect to Section 6, such determinations shall be made by the members of the Board who are not eligible to receive grants under Section 6, but in no event shall such determinations affect the eligibility of optionees, the determination of the exercise price, the timing of the grants or the number of shares subject to such grants. 2. Grants ------ Incentives under the Plan shall consist of incentive stock options, nonqualified stock options, restricted stock grants and stock appreciation rights (hereinafter collectively referred to as "Grants"). All Grants shall be subject to the terms and conditions set forth herein and to those other terms and conditions consistent with this Plan as the Committee deems appropriate and as are specified in writing by the Committee to the employee (the "Grant Letter"). The Committee shall approve the form and provisions of each Grant Letter to an employee or Key Advisor. Grants under a particular Section of the Plan need not be uniform as among the employees or Key Advisors and Grants under two or more Sections of the Plan may be combined in one instrument; provided, however, that Grants to Non-Employee Directors shall be made only in accordance with the provisions of Section 6. 3. Shares Subject to the Plan -------------------------- (a) Subject to the adjustment specified below, the aggregate number of shares of common stock of the Company ("Company Stock") that have been or may be issued or transferred under the Plan is 5,000,000 shares. During the term of the Plan, the maximum aggregate number of shares of Company Stock that shall be subject to options or awards under the Plan to any single individual shall be 500,000 shares. The shares may be authorized but unissued shares of Company Stock or reacquired shares of Company Stock, including shares repurchased by the Company on the open market. If and to the extent options or stock appreciation rights granted under the Plan terminate, expire, or are canceled, forfeited, exchanged or surrendered without having been exercised, or if any shares of restricted stock are forfeited, the shares subject to such option or such award shall again be available for purposes of the Plan. (b) If there is any change in the number or kind of shares of Company Stock outstanding (i) by reason of a stock dividend, spinoff, recapitalization, stock split, or combination or exchange of shares, (ii) by reason of a merger, reorganization or consolidation in which the Company is the surviving corporation, (iii) by reason of a reclassification or change in par value, or (iv) by reason of any other extraordinary or unusual event affecting the outstanding Company Stock as a class without the Company's receipt of consideration, or if the value of outstanding shares of Company Stock is substantially reduced as a result of a spinoff or the Company's payment of an extraordinary dividend or distribution, the maximum number of shares of Company Stock available for Grants, the maximum number of shares of Company Stock that any individual participating in the Plan may be granted in any 2 year, the number of shares covered by outstanding Grants, the kind of shares issued under the Plan, and the price per share or the applicable market value of such Grants may be proportionately adjusted by the Committee to reflect any increase or decrease in the number or kind of issued shares of Company Stock to preclude the enlargement or dilution of rights and benefits under such Grants; provided, however, that any fractional shares resulting from such adjustment shall be eliminated. The adjustments determined by the Committee shall be final, binding and conclusive. 4. Eligibility for Participation ----------------------------- Officers and other employees of the Company, Key Advisors designated by the Committee and Non-Employee Directors shall be eligible to participate in the Plan (hereinafter referred to individually as the "Participant" and collectively as the "Participants"), provided that Key Advisors and Non-Employee Directors shall not be eligible to receive Incentive Stock Options (as defined in Election 5(b) below). The Committee shall select the employees and Key Advisors to receive Grants (together with Non-Employee Directors receiving Grants under Section 6, the "Grantees") from among the Participants and determine the number of shares of Company Stock subject to a particular Grant in such manner as the Committee determines; provided, however, that Non-Employee Directors shall only receive Grants pursuant to Section 6. Nothing contained in this Plan shall be construed to (i) limit the right of the Company to grant options otherwise in connection with the acquisition, by purchase, lease, merger, consolidation or otherwise, of the business or assets of any corporation, firm or association, including options granted to employees thereof who become employees of the Company, or for other proper corporate purpose, or (ii) limit the right of the Company to grant stock options or make other awards outside of this Plan. 5. Granting of Options ------------------- (a) Number of Shares. The Committee shall grant to each Grantee who is an employee or Key Advisor a number of stock options as the Committee shall determine. (b) Type of Option and Price. (i) The Committee may grant options qualifying as incentive stock options ("Incentive Stock Options") within the meaning of Section 422 of the Code and/or other stock options ("Nonqualified Stock Options") or any combination of Incentive Stock Options and Nonqualified Stock Options (hereinafter referred to collectively as "Stock Options"), all in accordance with the terms and conditions set forth herein. 3 (ii) The purchase price of Company Stock subject to an Incentive Stock Option or a Nonqualified Stock Option shall be the fair market value of a share of such Stock on the date such Stock Option is granted. Notwithstanding the foregoing, with respect to a Stock Option other than an Incentive Stock Option, the price at which Company Stock may be purchased may be equal to either (i) the fair market value of Company Stock as of a date subsequent to the date of grant as specified by the Committee in the Grant Letter or (ii) the average of such fair market value over a period of time as specified by the Committee in the Grant Letter, but only when the price so established would not result in the disallowance of the Company's expense deduction pursuant to Section 162(m) of the Code. (iii) The "fair market value" of Company Stock shall be the closing price of a share of Company Stock on the New York Stock Exchange; provided, however, that if shares of Company Stock shall not be listed on the New York Stock Exchange, then the fair market value will be the closing price of a share of Company Stock on the principal stock exchange on which such shares are listed for trading, or if no sale takes place on such day on any such exchange, the average of the closing bid and asked prices on such day as officially quoted on any such stock exchange or if the Company Stock is not admitted to trading on any stock exchange the fair market price shall be the last sale reported on the NASDAQ National Market System published in the Wall Street Journal or, if no such sale is so reported, the average of the reported closing bid and asked prices on such day in the over-the- counter market, as furnished by the National Association of Security Dealers Automated System, or, if such price at the time is not available from such system, as furnished by any similar system then engaged in the business of reporting such prices and selected by the Company or, if there is no such system, as furnished by any member of the National Association of Security Dealers, selected by the Company. (c) Exercise Period. The Committee shall determine the option exercise period of each Stock Option. The exercise period shall not exceed ten years from the 4 date of grant. Notwithstanding any determinations by the Committee regarding the exercise period of any Stock Option, all outstanding Stock Options shall become immediately exercisable upon a Change in Control of the Company (as defined herein). (d) Vesting of Options. The vesting period for Stock Options shall commence on the date of grant and shall end on the third anniversary thereof, with one-third of the shares of Company Stock subject to each Grant becoming purchasable on each anniversary date of the grant, on a cumulative basis (except as otherwise provided herein or in the Grant Letter or as otherwise determined by the Committee). Notwithstanding any determinations by the Committee regarding the vesting period of any Stock Option, all outstanding Stock Options shall become immediately exercisable upon a Change in Control of the Company (as defined herein). (e) Manner of Exercise. A Grantee may exercise a Stock Option by delivering a notice of exercise to the Committee with accompanying payment of the option price. Such notice may instruct the Company to deliver shares of Company Stock due upon the exercise of the Stock Option to any registered broker or dealer designated by the Company ("Designated Broker") in lieu of delivery to the Grantee. Such instructions must designate the account into which the shares are to be deposited. The Grantee may tender this notice of exercise, which has been properly executed by the Grantee, and the aforementioned delivery instructions to any Designated Broker. (f) Termination of Employment, Disability or Death. (1) In the event the Grantee during his lifetime ceases to be an employee of the Company or Key Advisor for any reason other than death, any Stock Option which is otherwise exercisable by the Grantee shall terminate unless exercised within six months and one day of the date on which he ceases to be an employee or Key Advisor (or within such other period of time as may be specified in the Grant Letter), but in any event no later than the date of expiration of the option exercise period; provided, however, that in the case of a Grantee who is disabled within the meaning of Section 22(e)(3) of the Code, such period shall be one year rather than six months and one day (except as the Committee may otherwise provide in the Grant Letter) and that in the case of Incentive Stock Options, such period shall be 90 days rather than six months. (2) In the event of the death of the Grantee while he is an employee or Key Advisor of the Company or within not more than three months of the date on which he ceases to be an employee or Key Advisor (or within such other period of time as may be specified in the Grant Letter), any Stock Option which was otherwise exercisable by the Grantee at the date of death may be exercised by his personal representative at any time prior to the expiration of one year from the date of death, but in any event no later than the date of expiration of the option exercise period. 5 (g) Satisfaction of Option Price. The Grantee shall pay the option price in cash or by delivering shares of Company Stock already owned by the Grantee for the period necessary to avoid a charge to the Company's earnings for financial reporting purposes and having a fair market value on the date of exercise equal to the option price or with a combination of cash and shares. The Grantee shall pay the option price and the amount of withholding tax due, if any, at the time of exercise. Shares of Company Stock shall not be issued or transferred upon exercise of a Stock Option until the option price is fully paid. (h) Limits on Incentive Stock Options. Each Grant of an Incentive Stock Option shall provide that the aggregate fair market value of the Company Stock on the date of the Grant with respect to which Incentive Stock Options are exercisable for the first time by a Grantee during any calendar year under the Plan or any other stock option plan of the Company shall not exceed $100,000. An Incentive Stock Option shall not be granted to any Participant who, at the time of grant, owns stock possessing more than 10 percent of the total combined voting power of all classes of stock of the Company or parent of the Company, unless the option price per share is not less than 110% of the fair market value of Company Stock on the date of grant and the option exercise period is not more than five years from the date of grant. 6. Stock Option Grants to Non-Employee Directors --------------------------------------------- (a) Number of Shares. Each individual who becomes a Non-Employee Director after the effective date of this Plan as set forth in Section 18 shall receive a grant of a Non-qualified Stock Option to purchase 20,000 shares of Company Stock as of the date of the first meeting of shareholders at which he or she is first elected to the Board of Directors or the first meeting of shareholders after he or she becomes a director (whether or not he or she is a candidate for election). (b) Option Price and Exercise Period. The purchase price of Company Stock subject to such grants shall be the fair market value of a share of such stock as of the date such Stock Option is granted. "Fair Market Value" shall be determined pursuant to Section 5(b). Each Stock Option granted pursuant to this Section shall have an exercise period of ten years from the date of grant. (c) Vesting of Options. The vesting period for such Stock Options shall commence on the date of grant and shall end on the fifth anniversary thereof, with 20% of the shares of Company Stock subject to each grant becoming exercisable on each anniversary date of the grant, on a cumulative basis. Notwithstanding the foregoing, all outstanding Stock Options granted pursuant to this Section shall become immediately exercisable upon a Change in Control of the Company (as defined herein). (d) Manner of Exercise and Satisfaction of Option Price. A Non- Employee Director may exercise and satisfy the option price of Stock Options granted pursuant to this Section in accordance with the provisions of Section 5(e) and (g) respectively. 6 (e) Termination of Relationship With the Company, Disability or Death. (1) In the event a Non-Employee Director during his lifetime ceases to serve as a Non-Employee Director for any reason other than on account of becoming an employee of the Company or death, any Stock Option granted pursuant to this Section which is otherwise exercisable by the Non-Employee Director shall terminate unless exercised within six months of the date on which he ceases to serve as a Non-Employee Director, but in any event no later than the date of expiration of the option exercise period; provided, however, that in the case of a Non- Employee Director who is disabled within the meaning of Section 105(d)(4) of the Code, such period shall be one year rather than six months. (2) In the event of the death of the Non-Employee Director while he is serving as a Non-Employee Director or within not more than three months of the date on which he ceases to be a Non-Employee Director, any Stock Option granted pursuant to this Section which was otherwise exercisable by the Non-Employee Director at the date of death may be exercised by his personal representative at any time prior to the expiration of one year from the date of death, but in any event no later than the date of expiration of the option exercise period. 7. Restricted Stock Grants The Committee may issue or transfer shares of Company Stock to a Participant under a grant (a "Restricted Stock Grant") pursuant to an incentive or long range compensation plan or program approved by the Committee and adopted by the Board of Directors of the Company. Key Advisors shall not be eligible to receive Restricted Stock Grants. The following provisions are applicable to Restricted Stock Grants: (a) General Requirements. Shares of Company Stock issued pursuant to Restricted Stock Grants will be issued for no consideration. Subject to any other restrictions by the Committee as provided pursuant to this Section, restrictions on the transfer of shares of Company Stock set forth in Section 7(d) shall lapse as to up to one-third of the shares covered by a Restricted Stock Grant on each anniversary of the date of the grant or such other date as the Committee may approve until the restrictions have lapsed on 100% of the shares; provided, however, that upon a Change in Control of the Company (as defined herein), all restrictions on the transfer of the shares which have not, prior to such date, been forfeited shall immediately lapse. The period of years during which the Restricted Stock Grant will remain subject to restrictions will be designated in the Grant Letter as the "Restriction Period." (b) Number of Shares. The Committee shall grant to each Grantee a number of shares of Company Stock pursuant to a Restricted Stock Grant in such manner as the Committee determines. 7 (c) Requirement of Employment. If the Grantee's employment terminates during a period designated in the Grant Letter as the Restriction Period, the Restricted Stock Grant terminates as to all shares covered by the Grant as to which restrictions on transfer have not lapsed, and those shares of Company Stock must be immediately returned to the Company. The Committee may, however, provide for complete or partial exceptions to this requirement as it deems equitable. (d) Restrictions on Transfer and Legend on Stock Certificate. During the Restriction Period, a Grantee may not sell, assign, transfer, pledge, or otherwise dispose of the shares of Company Stock to which such Restriction Period applies except to a Successor Grantee under Section 9. Each certificate for a share issued or transferred under a Restricted Stock Grant shall contain a legend giving appropriate notice of the restrictions in the Grant. The Grantee shall be entitled to have the legend removed from the stock certificate or certificates covering any of the shares subject to restrictions when all restrictions on such shares have lapsed. (e) Unless the Committee determines otherwise, during the Restriction Period, the Grantee shall have the right to vote shares subject to the Restricted Stock Grant and to receive any regular cash dividends paid on such shares. (f) Lapse of Restrictions. All restrictions imposed under the Restricted Stock Grant shall lapse upon the expiration of the applicable Restriction Period; provided, however, that upon a Change in Control of the Company (as defined herein), all restrictions on the transfer of the shares which have not, prior to such date, been forfeited shall immediately lapse. In addition, the Committee may determine as to any or all Restricted Stock Grants, that all the restrictions shall lapse, without regard to any Restriction Period, under such circumstances as it deems equitable. 8. Stock Appreciation Rights ------------------------- (a) The Committee may grant stock appreciation rights ("SARs") to any Grantee in tandem with any Stock Option, for all or a portion of the applicable Stock Option, either at the time the Stock Option is granted or at any time thereafter while the Stock Option remains outstanding; provided, however, that in the case of an Incentive Stock Option, such rights may be granted only at the time of the grant of such Stock Option. The exercise price of each SAR shall be equal to (i) the exercise price or option price of the related Stock Option or (ii) the fair market value of a share of Company Stock as of the date of grant of such SAR, but only in such circumstances where the SAR is granted subsequent to the date of grant of the related Stock Option and an exercise price established in accordance with clause (i) above would result in the disallowance of the Company's expense deduction pursuant to Section 162(m) of the Code and related Treasury regulations. (b) The number of SARs granted to a Grantee which shall be exercisable during any given period of time shall not exceed the number of shares of Company 8 Stock which the Grantee may purchase upon the exercise of the related Stock Option or Stock Options during such period of time. Upon the exercise of a Stock Option, the SARs relating to the Company Stock covered by such Stock Option shall terminate. Upon the exercise of SARs, the related Stock Option shall terminate to the extent of an equal number of shares of Company Stock. (c) Upon a Grantee's exercise of some or all of his SARs, the Grantee shall receive in settlement of such SARs an amount equal to the value of the stock appreciation for the number of SARs exercised, payable in cash, Company Stock or a combination thereof. Subject to adjustments required pursuant to Subsection (a)(ii), the stock appreciation for an SAR is the difference between the option price specified for the related Stock Option and the fair market value of the underlying Company Stock on the date of exercise of such SAR. (d) At the time of such exercise, the Grantee shall have the right to elect the portion of the amount to be received that shall consist of cash and the portion that shall consist of Common Stock, which for purposes of calculating the number of shares of Company Stock to be received, shall be valued at their fair market value on the date of exercise of such SARs. The Committee shall have the right to disapprove a Grantee's election to receive cash in full or partial settlement of the SARs exercised, and to require that shares of Company Stock be delivered in lieu of cash. If shares of Company Stock are to be received upon exercise of an SAR, cash shall be delivered in lieu of any fractional share. (e) An SAR is exercisable only during the period when the Stock Option to which it is related is also exercisable. 9. Transferability of Options and Grants ------------------------------------- (a) Only a Participant or his or her authorized legal representative may exercise rights under a Grant. Such persons may not transfer those rights except by will or by the laws of descent and distribution or, if permitted in any specific case by the Committee in their sole discretion, pursuant to a qualified domestic relations order as defined under the Code or Title I of ERISA or the regulations thereunder. When a Participant dies, the personal representative or other person entitled to succeed to the rights of the Participant ("Successor Grantee") may exercise such rights. A Successor Grantee must furnish proof satisfactory to the Company of his or her right to receive the Grant under the Participant's will or under the applicable laws of descent and distribution. (b) Notwithstanding the foregoing, the Committee may provide, in a Grant Letter, that a Grantee may transfer Nonqualified Stock Options to family members or other persons or entities according to such terms as the Committee may determine; provided that the Grantee receives no consideration for the transfer of an Option and the transferred Option shall continue to be subject to the same terms and conditions as were applicable to the Option immediately before the transfer. 9 10. Change in Control of the Company -------------------------------- As used herein, a "Change in Control" shall be deemed to have occurred if Rhone-Poulenc S.A. and its Affiliates (as used herein, the term "Affiliates" shall be deemed to include any corporation, joint venture, or other business enterprise, whether incorporated or unincorporated, which Rhone-Poulenc S.A. directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with) cease to be the beneficial owners (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities. 11. Amendment and Termination of the Plan ------------------------------------- (a) Amendment. The Board of Directors of the Company, by written resolution, may amend or terminate the Plan at any time; provided, however, that any amendment that materially increases the benefits accruing to Participants under the Plan, increases the aggregate number (or individual limit for any single Grantee) of shares of Company Stock that may be issued or transferred under the Plan (other than by operation of Section 3(b)), or materially modifies the requirements as to eligibility for participation in the Plan, shall be subject to approval by the shareholders of the Company if required by applicable law, and provided, further, that the Board of Directors shall not amend the Plan without shareholder approval if such approval is required by Section 162(m) of the Code, or if such amendment would cause the Plan or the Grant or exercise of an Incentive Stock Option under the Plan to fail to comply with the requirements of Section 422 of the Code including, without limitation, a reduction of the option price set forth in Section 5(b) or an extension of the period during which an Incentive Stock Option may be exercised as set forth in Section 5(c). (b) Termination of Plan. The Plan shall terminate on the tenth anniversary of its effective date unless terminated earlier by the Board of Directors of the Company or unless extended by the Board with the approval of the shareholders. (c) Termination and Amendment of Outstanding Grants. A termination or amendment of the Plan that occurs after a Grant is made shall not result in the termination or amendment of the Grant unless the Grantee consents or unless the Committee acts under Section 19(b). The termination of the Plan shall not impair the power and authority of the Committee with respect to an outstanding Grant. Whether or not the Plan has terminated, an outstanding Grant may be terminated or amended under Section 19(b) or may be amended by agreement of the Company and the Grantee consistent with the Plan. 12. Funding of the Plan ------------------- This Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to assure the 10 payment of any Grants under this Plan. In no event shall interest be paid or accrued on any Grant, including unpaid installments of Grants. 13. Rights of Participants ---------------------- Nothing in this Plan shall entitle any Participant or other person to any claim or right to be granted an award under this Plan. Neither this Plan nor any action taken hereunder shall be construed as giving any Participant any rights to be retained by or in the employ of the Company. 14. Withholding of Taxes -------------------- The Company shall have the right to deduct from all Grants paid in cash, or from other wages paid to the employee of the Company, any federal, state or local taxes required by law to be withheld with respect to such cash awards and, in the case of Grants paid in Company Stock, the Participant or other person receiving such shares shall be required to pay to the Company the amount of any such taxes which the Company is required to withhold with respect to such Grants or the Company shall have the right to deduct from other wages paid to the employee by the Company the amount of any withholding due with respect to such Grants. 15. Agreements with Participants ---------------------------- Each Grant made under this Plan shall be evidenced by a Grant Letter containing such terms and conditions as the Committee shall approve. 16. Requirements for Issuance of Shares ----------------------------------- No Company Stock shall be issued or transferred upon payment of any Grant hereunder unless and until all legal requirements applicable to the issuance or transfer of such Company Stock have been complied with to the satisfaction of the Committee. The Committee shall have the right to condition any Restricted Stock Grant or Stock Option made to any Participant hereunder on such Participant's undertaking in writing to comply with such restrictions on his subsequent disposition of such shares of Company Stock as the Committee shall deem necessary or advisable as a result of any applicable law, regulation or official interpretation thereof, and certificates representing such shares may be legended to reflect any such restrictions. 17. Headings -------- Section headings are for reference only. In the event of a conflict between a title and the content of a Section, the content of the Section shall control. 11 18. Effective Date and Designation of the Board ------------------------------------------- Subject to the approval of the Company's shareholders, this Plan shall be effective as of May 1, 1995. 19. Miscellaneous ------------- (a) Substitute Grants. The Committee may make a Grant to an employee of another corporation who becomes a Participant by reason of a corporate merger, consolidation, acquisition of stock or property, reorganization or liquidation involving the Company or any of its subsidiaries in substitution for a stock option or restricted stock grant granted by such corporation ("Substituted Stock Incentives"). The terms and conditions of the substitute Grant may vary from the terms and conditions required by the Plan and from those of the Substituted Stock Incentives. The Committee shall prescribe the provisions of the substitute Grants. (b) Compliance with Law. The Plan, the exercise of Grants and the obligations of the Company to issue or transfer shares of Company Stock under Grants shall be subject to all applicable laws and to approvals by an governmental or regulatory agency as may be required. With respect to persons subject to Section 16 of the Exchange Act, it is the intent of the Company that the Plan and all transactions under the Plan comply with all applicable provisions of Rule 16b-3 or its successors under the Exchange Act. The Committee may revoke any Grant if it is contrary to law or modify a Grant to bring it into compliance with any valid and mandatory government regulation. The Committee may also adopt rules regarding the withholding of taxes on payments to Grantees. The Committee may, in its sole discretion, agree to limit its authority under this Section. (c) Ownership of Stock. A Grantee or Successor Grantee shall have no rights as a shareholder with respect to any shares of Company Stock covered by a Grant until the shares are issued or transferred to the Grantee or Successor Grantee on the stock transfer records of the Company; provided, however, that such individuals shall have the right to vote shares of Company Stock subject to a Restricted Stock Grant and to the payment of cash dividends on such shares during the Restriction Period. 12 -----END PRIVACY-ENHANCED MESSAGE-----