<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)
RHONE-POULENC RORER INC.
------------------------------------
(Name of issuer)
Common Shares, without par value
--------------------------------
(Title of class of securities)
76242T 10 4
----------------------
(CUSIP Number)
Yves Brissy
Rhone-Poulenc S.A.
25 Quai Paul Doumer
92408 Courbevoie Cedex, France
(331) 47-68-12-34
-------------------------------------------------
(Name, address, and telephone number of person
authorized to receive notices and communications)
Copies of all notices should be sent to:
Hubertus V. Sulkowski Esq.
Shearman & Sterling
12, rue d'Astorg
75008 Paris, France
(331) 44-71-17-17
June 2, 1994
--------------------------------------
(Date of event which requires
filing of this statement)
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition which is the subject
of this statement, and is filing this statement because of Rule
13d-1(b) (3) or (4), check the following box: / /
Check the following box if a fee is being paid with this
statement: / /
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CUSIP No. 76242T 10 4
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Rhone-Poulenc S.A.
(2) Check the Appropriate Box if a Member of a Group (See
Instructions)
/ / (a)
/ / (b)
(3) SEC Use Only
(4) Source of Funds (See Instructions)
(5) Check if Disclosure of Legal Proceedings is Required
Pursuant to Item 2(d) or 2(e).
/ /
(6) Citizenship or Place of Organization France
Number of (7) Sole Voting Power 94,987,762
Shares
Beneficially (8) Shared Voting Power
Owned by
Each (9) Sole Dispositive Power 94,987,762
Reporting
Person (10) Shared Dispositive Power
With
(11) Aggregate Amount Beneficially Owned by Each Reporting
Person 94,987,762
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions)
/ /
(13) Percent of Class Represented by Amount in Row (11)
Approximately 68.3 % (based upon 138,986,185 shares outstanding as of
March 10, 1994 (including 2,693,700 shares in RPR's Employee Benefits
Trust), according to Rhone-Poulenc Rorer Inc.'s Proxy Statement dated
March 21, 1994).
(14) Type of Reporting Person (See Instructions) CO
<PAGE> 3
This Amendment No. 5 amends and restates in its entirety the Statement
on Schedule 13D originally filed by Rhone-Poulenc S.A., a French societe
anonyme ("RPSA"), with the Securities and Exchange Commission on May 10, 1990
as part of Amendment No. 9 to a Statement on Schedule 14D-1 by RPSA, as
amended. This Amendment No. 5 is filed to reflect information required
pursuant to Rule 13d-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended, relating to shares of common
stock, without par value, of Rhone-Poulenc Rorer Inc., a Pennsylvania
corporation ("RPR" or the "Issuer").
Item 1. Security and Issuer.
This Statement on Schedule 13D relates to shares of common stock, with
out par value, of RPR (the "Shares"). RPR's principal executive offices are
located at 500 Arcola Road, Collegeville, Pennsylvania 19426-0107.
Item 2. Identity and Background.
(a) This Statement on Schedule 13D is filed by RPSA.
(b) The business address of RPSA is 25 Quai Paul Doumer, 92408
Courbevoie Cedex, France.
(c) RPSA is a major international pharmaceutical and chemical group
engaged primarily in the research, development, production, marketing and sale
of pharmaceuticals, agricultural chemicals, specialty chemicals, organic and
inorganic intermediate chemicals, and fibers and polymers.
The names, residence or business addresses and present principal
occupation or employment and the name, principal business and address of any
corporation or other organization in which such employment is conducted, of the
executive officers and directors of RPSA are set forth in Schedule A hereto and
incorporated herein by reference.
(d) During the last five years, neither RPSA nor, to the best of
RPSA's knowledge, any of the directors or executive officers of RPSA have been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, neither RPSA nor, to the best of
RPSA's knowledge, any of the directors or executive officers of RPSA have been
a party to a civil
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2
proceeding of a judicial or administrative body of competent jurisdiction and
as a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
(f) The citizenship of the executive officers and the directors of
RPSA is set forth in Schedule A hereto and incorporated herein by reference.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to the terms of the Acquisition Agreement, dated as of March
12, 1990, between RPSA and RPR (the "Acquisition Agreement"), RPR acquired
Shares in a series of transactions in 1990. Upon expiration on May 5, 1990 of
its March 18, 1990 tender offer for Shares (the "Tender Offer"), RPSA purchased
on a pro rata basis 21,629,061 Shares of the 41,646,844 Shares tendered to it
and not withdrawn (representing approximately 50.1% of the then outstanding
Shares on a fully diluted pre-split basis, excluding Shares subject to
outstanding employee stock options) at a price of $78 per Share. On July 31,
1990, RPR issued 24,205,670 Shares to RPSA in consideration of the contribution
by RPSA to RPR of its Human Pharmaceutical Business (as defined in the
Acquisition Agreement), the issuance by RPSA to RPR of certain Contingent Value
Rights ("CVRs") and other transactions (collectively, the "Stock Acquisition
Transactions"). As a result of these transactions, on July 31, 1990, RPSA
owned an aggregate of 45,834,731 Shares, representing approximately 68.68% of
the Shares then outstanding on a fully diluted pre-split basis. The total
amount of funds required by RPSA to consummate the Tender Offer and to pay
related fees and expenses was approximately $1.7 billion. RPSA obtained such
funds through borrowings under certain credit facilities, from general
corporate funds, and from proceeds of a commercial paper program.
On May 7, 1991, the Board of Directors of RPR declared a two-for-one
split of the Shares that was effected by means of a 100% stock dividend
distributed to shareholders on June 7, 1991. As a result of such two-for-one
share split, RPSA's ownership of Shares increased from 45,834,731 Shares to
91,669,462 Shares, representing approximately 67% of the then outstanding
Shares on a fully diluted basis.
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3
At January 31, 1993, RPSA's ownership interest had been diluted to
approximately 66.63% of the then outstanding Shares, primarily due to (i) the
issuance by RPR in December 1990 of 1,610,880 Shares in exchange for shares of
capital stock of Laboratoire Roger Bellon ("LRB"), tendered to RPR pursuant to
an exchange offer by RPR for any and all shares of capital stock of LRB not
owned by RPR or its subsidiaries and (ii) the exercise, after July 31, 1990, of
stock options granted to RPR's officers and directors. On February 11, 1993,
RPSA issued a press release announcing that it had decided to purchase
additional Shares on the open market to return its ownership interest in RPR to
its original level of 68.68% and to offset such dilutive events. After
purchases of 3,318,300 Shares, RPSA owns an aggregate of 94,983,762 Shares.
Item 4. Purpose of Transaction.
The purpose of the Tender Offer was for RPSA to acquire voting control
of RPR. The purpose of the Stock Acquisition Transactions was to transfer the
Human Pharmaceutical Business and the CVRs to RPR subsequent to RPSA's
acquiring control of RPR and to increase RPSA's ownership interest in RPR
through the issuance of additional Shares to RPSA in such transactions.
The following summary of certain provisions of the Acquisition
Agreement is qualified in its entirety by reference to the Acquisition
Agreement, a copy of which has been filed as an exhibit to this Statement on
Schedule 13D and is incorporated by reference herein.
Section 7.6 of the Acquisition Agreement provides, among other things,
that through July 31, 1997 (unless earlier terminated pursuant to the
provisions of the Acquisition Agreement) (the "Standstill Period"), RPSA will
not and will cause its subsidiaries and affiliates, their respective officers
and directors and any person acting on behalf of RPSA, any of such subsidiaries
or affiliates or their respective officers and directors (collectively, and
including RPSA, the "RPSA Group"), not to:
(A) acquire, agree to acquire, make any proposal to acquire or
announce or disclose any intention to make a proposal to acquire, directly
or indirectly, any Shares or any other issued and outstanding securities of
RPR generally entitled to vote for the election of directors of RPR
(collectively, "Voting Securities") except that
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4
the RPSA Group may purchase or otherwise acquire Voting Securities if and
only to the extent that after any such purchase or other acquisition the
RPSA Group would beneficially own Voting Securities possessing aggregate
voting power not in excess of the percentage of aggregate voting power
possessed by Shares beneficially owned (without duplication of amounts) by
the RPSA Group immediately following the July 31, 1990 closing under the
Acquisition Agreement;
(B) propose to enter into, or announce or disclose any intention to
propose to enter into, directly or indirectly, any merger or business
combination involving RPR or any of its subsidiaries or to purchase,
directly or indirectly, a material portion of the assets of RPR or any of
its subsidiaries;
(C) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) to vote, or seek to advise or influence any person with
respect to the voting of, any Voting Securities, or become a "participant"
in any "election contest" (as such terms are defined or used in Regulation
14A of the Exchange Act) relating to the election of directors of RPR;
provided, however, that RPSA shall not be deemed to have engaged in a
"solicitation" or to have become a "participant" by reason of the
membership of RPSA Designees (as defined in the Acquisition Agreement) on
the Board of Directors of RPR or by voting its Shares in any such election
or by reason of RPR's solicitation of proxies in connection with any annual
or special meeting of shareholders of RPR in accordance with the provisions
of the Acquisition Agreement;
(D) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) or otherwise act in
concert with any person, (i) for the purpose of circumventing the
provisions of the Acquisition Agreement, or (ii) other than with other
members of the RPSA Group (to the extent permitted by the Acquisition
Agreement), for the purpose of acquiring, holding, voting or disposing of
any Voting Securities;
(E) request RPR (or its directors, officers, employees or agents),
directly or indirectly, to amend or
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5
waive any of the provisions contained in Sections 7.6 through 7.9 of the
Acquisition Agreement or take any action which might require RPR or any
member of the RPSA Group to make a public announcement regarding the
possibility of (i) a business combination or merger involving RPR or any
of its subsidiaries, on the one hand, and any member of the RPSA Group,
on the other hand, or (ii) the sale to any member of the RPSA Group of a
material portion of the assets of RPR or any of its subsidiaries;
(F) deposit any Voting Securities in a voting trust, or subject any
Voting Securities to a voting or similar agreement; or
(G) sell, transfer, pledge or otherwise dispose of or encumber any
Voting Securities except, subject to certain conditions, (i) certain sales
of Voting Securities pursuant to a firm commitment, underwritten
distribution to the public, registered pursuant to the Registration Rights
Agreement between RPSA and RPR or otherwise under the Securities Act of
1933, as amended (the "Securities Act"); (ii) sales of Voting Securities
in certain defined privately negotiated transactions; or (iii) certain
sales of Voting Securities pursuant to Rule 144 of the General Rules and
Regulations under the Securities Act.
The Acquisition Agreement also provides that during the Standstill
Period, neither RPR nor any of its subsidiaries shall purchase any Voting
Securities, except for the express purpose of funding any employee benefit,
stock option or other incentive or profit sharing plans of RPR or any of its
subsidiaries.
The Acquisition Agreement further provides that, following the
expiration of the Standstill Period, (i) RPSA will be permitted, at any time
and from time to time, to purchase Shares in open market transactions, provided
that, as a result of such purchases, RPSA would not beneficially own Voting
Securities possessing, when added (without duplication) to all Voting
Securities beneficially owned by the RPSA Group, in excess of 75% of the
aggregate voting power of all Voting Securities at the time outstanding and
(ii) in the event RPSA desires to purchase Shares in excess of 75% limitation,
RPSA may acquire such Shares only pursuant to a Qualifying Tender Offer (as
defined in the Acquisition Agreement).
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6
Provisions of the Acquisition Agreement may be amended, modified or
waived with the affirmative vote of a majority of three Independent Directors
(as defined in the Acquisition Agreement) of RPR.
RPSA is considering, and may continue to consider in the future, the
feasibility and advisability of several alternative transactions involving RPR
or its assets or securities, including transactions relating to business
combinations, mergers or transfers of assets or securities involving RPR.
However, no assurances can be given that RPSA will pursue any such possible
transactions.
As described above, any amendment, waiver or modification of
provisions of the Acquisition Agreement that would be necessary in respect of
any such transactions would require the approval of a majority of the
Independent Directors. No assurances can be given as to how the Independent
Directors may act with respect to any such matter.
Item 5. Interest in Securities of the Issuer.
(a) As of June 2, 1994, RPSA was the owner of 94,987,762 Shares
constituting approximately 68.34 % of the outstanding Shares (based upon
138,986,185 Shares outstanding as calculated above).
The following table shows the number of Shares beneficially owned by
directors and executive officers of RPSA as of March 10, 1994, and the nature
of such beneficial ownership.
<TABLE>
<CAPTION>
Number of Shares
Number of Shares Subject to
Beneficial Owner Owned Directly Exercisable Options
- ---------------- ---------------- -------------------
<S> <C> <C>
Jean-Marc Bruel 0 12,000
Robert E. Cawthorn 129,987 316,883
Michel de Rosen 0 0
Prof. Claude Helene 0 12,000
Igor Landau 200 12,000
Peter Neff 0 12,000
Jean-Pierre Tirouflet 0 12,000
</TABLE>
Pursuant to the terms of a shareholder-approved plan now known as the
Rhone-Poulenc Rorer Amended and Restated Stock Plan (the "Stock Plan"), Mr.
Landau and Prof. Helene
<PAGE> 9
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were each awarded, on July 31, 1990, options to purchase 20,000 Shares at a
price of $32.3125 per Share, the market value on that date. Messrs. Bruel,
Neff and Tirouflet were each awarded, on May 7, 1991, options to purchase
20,000 Shares at $41.125 per Share, the market value on that date. These
options become exercisable during service as directors at the rate of 20% of
the Shares on each of the first five anniversaries of the date of the grant.
The foregoing description reflects the two-for-one split in the Shares that was
effected on June 7, 1991.
(b) RPSA has the sole power to vote and dispose of 94,987,762 Shares.
Each of the directors and executive officers of RPSA listed in
paragraph (a) above has the sole power to vote and dispose of the numbers of
Shares set forth opposite his name in paragraph (a) above.
(c) Except as described above, neither RPSA nor, to the best
knowledge of RPSA, any of the directors or executive officers of RPSA, effected
any transactions in the Shares during the past 60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings, or Relationships with Respect
to Securities of the Issuer
The following summaries of certain provisions of certain agreements
are qualified in their entirety by reference to such agreements, copies of
which have been filed as exhibits to this Statement on Schedule 13D and are
incorporated by reference herein.
Acquisition Agreement.
In addition to the provisions of the Acquisition Agreement described
in Item 4 above, the Acquisition Agreement provides that at all times that RPR
has outstanding any Shares, or other securities convertible into or
exchangeable for Shares which are held by the public, there shall be no fewer
than three directors who are Independent Persons (as defined in the
Acquisition
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Agreement). The Acquisition Agreement provides that during the period from
July 31, 1990 until the expiration of the Standstill Period (the "Governance
Period"), the Board shall consist of 13 directors. The Acquisition Agreement
further provides that during the Governance Period, RPSA shall, and shall cause
its subsidiaries to, vote all Shares directly or indirectly beneficially owned
by RPSA or any of such subsidiaries to elect, and RPR shall use its best
efforts to cause to be elected, seven individuals selected by RPSA (the "RPSA
Designees"), three executive officers of RPR (including the Chief Executive
Officer) designated by the Chief Executive Officer of RPR (the "RPR Designees")
and three individuals who are Independent Persons selected by the Nominating
Committee of the Board of Directors of RPR (the "Independent Directors").
RPSA and RPR have further agreed in the Acquisition Agreement that
during the Governance Period, (i) the Nominating Committee of the Board shall
consist of RPR's Chief Executive Officer, one RPSA Designee and one Independent
Director who shall be chairman of the Committee, and the Nominating Committee
shall select the Independent Directors, (ii) the Compensation Committee of the
Board shall have one RPSA Designee (who is not an employee of RPR) and shall
otherwise consist exclusively of Independent Directors, (iii) the Audit
Committee of the Board shall consist exclusively of Independent Directors, (iv)
the Executive Committee of the Board shall act pursuant to authority expressly
delegated by the Board, shall meet when necessary and shall consist of an equal
number of RPR Designees (one of whom shall be the Chief Executive Officer of
RPR) and RPSA Designees and at least one Independent Director, (v) the
selection of committee members (other than RPSA Designees) shall be proposed by
the Chief Executive Officer of RPR, subject to approval by the Board in
accordance with the criteria described in this paragraph, and (vi) all actions
taken by any committee of the Board shall be recommendations that shall be
submitted to the full Board for approval unless, prior to such action being
taken, the Board has adopted a resolution expressly delegating to the committee
the power to take the action in question.
Registration Rights Agreement.
Pursuant to the Acquisition Agreement, RPSA and RPR entered into a
Registration Rights Agreement dated as of July 31, 1990, which, among other
things, provides RPSA with three demand registration rights, exercisable no
more than once a year commencing two years after July 31, 1990 and terminating
10 years after July 31, 1990.
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Support Agreement.
In connection with the issuance by RPR of Market Action Preferred
Shares ("MAPS") in December 1991, RPR entered into a support agreement with
RPSA dated December 19, 1991 (the "Support Agreement") pursuant to which both
parties agreed that (i) RPSA will own a majority of the outstanding common
stock of RPR entitled to elect directors; (ii) RPSA will make a capital
contribution to RPR if certain debt-to-capitalization or tangible net worth
ratios do not meet specified levels or if RPR fails to pay a declared dividend
on MAPS on a timely basis; and (iii) RPSA, as guarantor of the Revolving Credit
Facility Agreement dated April 30, 1990, will maintain such facility in full
force, and RPR will maintain, as of any date, the unused portion of such
facility in an amount equal to all principal, interest and premium amounts
payable in the next 12 months with respect to short- and long-term debt other
than amounts owed to RPSA or guaranteed by RPSA, subject to certain
requirements and exceptions. In connection with the Support Agreement, RPR
pays RPSA an annual fee, which in 1993 approximated $.4 million. The Support
Agreement does not constitute a guarantee by RPSA of any obligation of RPR,
including MAPS, and is not enforceable by any holder of MAPS.
Cawthorn Employment Agreement.
On March 12, 1990, RPR and Mr. Cawthorn, an officer of RPSA, entered
into an employment agreement (the "Cawthorn Employment Agreement") with respect
to Mr. Cawthorn's employment by RPR as Chairman and Chief Executive Officer of
RPR, which agreement became effective on May 5, 1990, the date RPSA acquired
Shares pursuant to the Tender Offer. RPSA is not a party to the Cawthorn
Employment Agreement. A copy of the form of the Cawthorn Employment Agreement
is included as an exhibit to the Acquisition Agreement that has been filed as
an exhibit to this Statement on Schedule 13D and a copy of the March 18, 1994
letter agreement amending the Cawthorn Employment Agreement has been filed as
an exhibit hereto.
The Cawthorn Employment Agreement provides, among other things, for an
initial term ending on May 5, 1994, subject to annual extensions (the
"Employment Term"). On March 18, 1994, RPR and Mr. Cawthorn extended the
Employment Term for an additional year, to May 5, 1995, and made certain
amendments to the Cawthorn Employment Agreement. The Cawthorn Employment
Agreement, as so amended, is subject to automatic renewal on a year-to-year
basis, unless either party gives 90 days' notice of its desire that the
contract not be so extended.
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The Cawthorn Employment Agreement provides guidelines for the
determination of Mr. Cawthorn's annual rate of salary for the Employment Term
(the "Base Salary"). In addition, Mr. Cawthorn has received and will receive
annual bonuses during the Employment Term in accordance with RPR's annual bonus
plan as in effect from time to time, and which currently provides for a target
bonus of 70% of Base Salary from which the actual bonus is determined.
During the Employment Term, Mr. Cawthorn was to receive annual grants
of restricted Shares which he received in 1990 and 1991. In 1992, Mr. Cawthorn
voluntarily took a stock option grant offered to senior executives in lieu of a
restricted stock grant in keeping with RPR's elimination of restricted stock as
a means of compensation.
During the Employment Term, Mr. Cawthorn is also entitled to annual
grants of options to purchase Shares determined in accordance with RPR's
incentive compensation plan. These options become exercisable to purchase
one-third of the Shares covered by the option on each of the first three
anniversaries of the date of grant. In years of service as Chief Executive
Officer of RPR subsequent to 1995, Mr. Cawthorn's stock option grants will be
determined by RPR's Executive Personnel and Compensation Committee.
In addition, Mr. Cawthorn received as of August 21, 1990, a grant (the
"One-Time Grant") of an option to purchase 200,000 Shares at an option price of
$30.175, the market value of the Shares restated to reflect a two-for-one split
in June 1991), which options would become exercisable upon the fulfillment of
certain conditions, including the maturity of the CVRs, without payment by
RPSA, in 1993 or 1994. In 1991, the One-Time Grant was amended to make a
number of its provisions consistent with the similar grants made to certain
other executives. These amendments to Mr. Cawthorn's One-Time Grant included
providing that 35% of the shares would become exercisable in the event of the
maturity of the CVRs without payment by RPSA and 65% of the shares would become
exercisable if certain income targets were met, provided the CVRs matured
without payment by RPSA and further that the options would become exercisable
in the year 2000 or earlier, assuming continued employment. The CVRs matured
in July 1993 and pursuant to their terms, RPSA paid CVR holders for each CVR
the sum of $.12, representing the difference between the average market value
of shares of RPR Shares for a 90-day period prior to maturity ($49.01) and the
CVR Target Price of $49.13. In light of the substantial performance
<PAGE> 13
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against the CVR Target Price, the terms of the One-Time Grant (and similar
grants to certain other executives) were modified to provide for immediate
vesting of 35% of the grant and cancellation of the remainder of the option.
Mr. Cawthorn may exercise the vested portion at any time prior to its
expiration in the year 2000.
On the day after the last day of the Employment Term, Mr. Cawthorn
will receive a lump sum payment amounting to the aggregate of his 1994 salary
and the bonus paid for 1994. In addition, upon the later of termination of
employment as Chief Executive Officer of RPR or May 5, 1995, restrictions on
any restricted stock Mr. Cawthorn then holds will lapse and any options which
are vested on that date will be exercisable for a period of five years
following such date, unless the options by their terms expire earlier.
Item 7. Material to Be Filed as Exhibits.
Exhibit
No. Description
- ------- -----------
1.* Acquisition Agreement, dated as of March 12,
1990, between the Company and Rhone Poulenc.
2. Support Agreement dated December 19, 1991
between RPR and RPSA.
3. Employment Agreement, dated as of March 18,
1994, between RPR and Robert E. Cawthorn.
4. Registration Rights Agreement dated as
of July 31, 1990, between RPR and RPSA.
- -------------------------
* Previously filed.
<PAGE> 14
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
RHONE-POULENC S.A.
By /s/ Jean-Pierre Tirouflet
-----------------------------------
Name: Jean-Pierre Tirouflet
Title: Executive Group Vice President
Dated: June 2, 1994
<PAGE> 15
SCHEDULE A
Directors and Executive Officers of
Rhone-Poulenc S.A.
<TABLE>
<CAPTION>
Present Principal Occupation or Employment
Including the Name (principal business)
Position with Name and and Address (if different than
Rhone-Poulenc S.A. Business Address Citizenship Business Address) of Employer
- ------------------ ----------------- ----------- ------------------------------
<S> <C> <C> <C>
I. Directors
---------
Director, Chairman Jean-Rene Fourtou French Director, Chairman of the Board and
and Chief Executive Officer c/o Rhone-Poulenc S.A. Chief Executive Officer of Rhone-Poulenc
25 Quai Paul Doumer S.A.
92408 Courbevoie Cedex, France
Director Assurances Generales de France French Chairman and Chief Executive Officer of
represented by Assurances Generales de France (insurance)
Michel Albert
c/o Assurances Generales de France
87 rue de Richelieu
75060 Paris Cedex 02, France
Director Claude Bebear French Chairman and Chief Executive Officer of
c/o AXA AXA (insurance)
21-23 Avenue Matignon
75008 Paris, France
Director Serge Kampf French Chairman and Chief Executive Officer of
c/o Cap Gemini Sogeti Cap Gemini Sogeti (business management
3 rue Malakoff consulting)
38000 Grenoble, France
Director Francois Kourilsky French Chief Executive Officer of C.N.R.S.
c/o C.N.R.S. (National Center for Scientific Research)
(National Center for Scientific (scientific and technical research)
Research)
3 rue Michel Ange
75016 Paris, France
Director Credit Lyonnais, French President of Credit Lyonnais (banking)
represented by Michel Renault
c/o Credit Lyonnais
18, rue de la Republique
69002 Lyon, France
</TABLE>
<PAGE> 16
SCHEDULE A
Directors and Executive Officers of
Rhone-Poulenc S.A.
<TABLE>
<CAPTION>
Present Principal Occupation or Employment
Including the Name (principal business)
Position with Name and and Address (if different than
Rhone-Poulenc S.A. Business Address Citizenship Business Address) of Employer
- ------------------ ----------------- ----------- ------------------------------
<S> <C> <C> <C>
Director Societe Financialere et Immobiliere, French Chairman of Board of Directors of Societe
Marcel Dassault, represented by Serge Financialere et Immobiliere,
Dassault Marcel Dassault (real estate management)
c/o Societe Financialere et
Immobiliere Marcel Dassault
9 rond-point des Champs-Elysees
75008 Paris, France
Director and Vice Chairman Jean-Marc Bruel French Director and Vice Chairman of
c/o Rhone-Poulenc S.A. Rhone-Poulenc S.A.
25 Quai Paul Daumer
92408 Courbevoie Cedex
France
Director A. Merieux French Chairman and Chief Executive
c/o Institut Merieux S.A. of Institut Merieux S.A.
17 rue Bourgelat (research and development in biology,
69002 Lyon, France medicine and pharmaceuticals)
Director Fiat France S.A., represented French Chairman and Chief Executive
by Giorgio Frasa Officer of Fiat France S.A.
c/o Societe Fiat France (automobiles)
140 Avenue des Champs-Elysees
75008 Paris, France
Director Societe Generale, French Chairman and Chief Executive
represented by Marc Vienot of Societe Generale (banking)
c/o Societe Generale
29 Boulevard Haussman
75009 Paris, France
Director Credit Suisse French Member of the Management Board
represented by Rudolph Hug of Credit Suisse, Zurich and
c/o Credit Suisse Chairman and Chief Executive
Paradeplatz 8 Officer of Credit Suisse Paris (banking)
8001 Zurich, Switzerland
Director Banque Nationale de Paris, French Chairman and Chief Executive of Banque
represented by Michel Pelereau Nationale de Paris (banking)
c/o Banque Nationale de Paris
16 Boulevard des Italiens
75009 Paris, France
</TABLE>
<PAGE> 17
SCHEDULE A
Directors and Executive Officers of
Rhone-Poulenc S.A.
<TABLE>
<CAPTION>
Name and Position with
Business Address Citizenship Rhone-Poulenc S.A.
---------------- ----------- ------------------
<S> <C> <C> <C>
II. Executive Officers
------------------ Jean-Rene Fourtou French Director, Chairman and
c/o Rhone-Poulenc S.A. Chief Executive Officer
25 Quai Paul Doumer
92408 Courbevoie Cedex
France
Jean-Marc Bruel French Vice Chairman; supervises the Fibers
c/o Rhone-Poulenc S.A. and Polymers segment, Quality, Safety and
25 Quai Paul Doumer Environmental Protection and
92408 Courbevoie Cedex Asian operations
France
Robert E. Cawthorn United States Chairman and Chief Executive Officer of
c/o Rhone-Poulenc Rorer Inc. of America Rhone-Poulenc Rorer Inc.
500 Arcola Road
Collegeville, Pennsylvania 19426-0107
USA
Philippe Desmarescaux French Group President; supervises the Agro,
c/o Rhone-Poulenc S.A. Specialty Chemicals and Organic and
25 Quai Paul Doumer Inorganic Intermediates segments,
92408 Courbevoie Cedex Research and Development and North
France America operations
Alain Godard French President, Agro segment
c/o Rhone-Poulenc S.A.
25 Quai Paul Doumer
92408 Courbevoie Cedex
France
</TABLE>
<PAGE> 18
SCHEDULE A
Directors and Executive Officers of
Rhone-Poulenc S.A.
<TABLE>
<CAPTION>
Name and Position with
Business Address Citizenship Rhone-Poulenc S.A.
---------------- ----------- ------------------
<S> <C> <C>
Francois Guinot French President, Organic and Inorganic
c/o Rhone-Poulenc S.A. Intermediate segment
25 Quai Paul Doumer
92408 Courbevoie Cedex
France
Claude Helene French Group Vice President Research and
c/o Rhone-Poulenc S.A. Development
25 Quai Paul Doumer
92408 Courbevoie Cedex
France
Igor Landau French Group President; supervises the Health
c/o Rhone-Poulenc S.A. segment, Human Resources, Corporate
25 Quai Paul Doumer Communications and operations in the
92408 Courbevoie Cedex European Economic Community and the
France European Free Trade Association
Bertrand Louvet French President, Specialty Chemicals
c/o Rhone-Poulenc S.A. segment
25 Quai Paul Doumer
92408 Courbevoie Cedex
France
Peter J. Neff United States Senior Representative Rhone-Poulenc
c/o Rhone-Poulenc S.A. of America Group for the United States,
25 Quai Paul Doumer President and Chief Operating Officer
92408 Courbevoie Cedex of Rhone-Poulenc Inc.
France
Rene Penisson French Group Senior Vice President Human
c/o Rhone-Poulenc S.A. Resources
25 Quai Paul Doumer
92408 Courbevoie Cedex
France
Martin Pinot French President, Fibers and Polymers segment
c/o Rhone-Poulenc S.A.
25 Quai Paul Doumer
92408 Courbevoie Cedex
France
</TABLE>
<PAGE> 19
SCHEDULE A
Directors and Executive Officers of
Rhone-Poulenc S.A.
<TABLE>
<CAPTION>
Name and Position with
Business Address Citizenship Rhone-Poulenc S.A.
---------------- ----------- ------------------
<S> <C> <C>
Jean Planet French Group Secretary General
c/o Rhone-Poulenc S.A.
25 Quai Paul Doumer
92408 Courbevoie Cedex
France
Michel de Rosen French President and Chief Operating Officer
Rhone-Poulenc Rorer Inc. of Rhone-Poulenc Rorer Inc.
500 Arcola Road
Collegeville, Pennsylvania 19426-0107
USA
Jean-Pierre Tirouflet French Executive Group Vice President; supervises
c/o Rhone-Poulenc S.A. Group Finance, Strategic Planning,
25 Quai Paul Doumer Control, Information Systems, and
92408 Courbevoie Cedex Secretary General Functions
France
Edson Vaz Musa Brazilian Executive Group Vice President; supervises
c/o Rhone-Poulenc S.A. Rhodia S.A. as Chairman, International Affairs,
25 Quai Paul Doumer Industrial Coordination, Industrialization
92408 Courbevoie Cedex and South American operations
France
</TABLE>
<PAGE> 20
EXHIBIT INDEX
-------------
Exhibit
No. Description
- ------- -----------
1.* Acquisition Agreement, dated as of March 12, 1990, between the
Company and Rhone Poulenc.
2. Support Agreement dated December 19, 1991 between RPR and RPSA.
3. Employment Agreement, dated as of March 18, 1994, between RPR and
Robert E. Cawthorn.
4. Registration Rights Agreement dated as of July 31, 1990, between
RPR and RPSA.
- -------------------------
* Previously filed.
<PAGE> 1
Exhibit 2
SUPPORT AGREEMENT, dated December 19, 1991, made by Rhone-Poulenc
S.A., a French societe anonyme ("RPSA"), in favor of Rhone-Poulenc Rorer Inc.,
a corporation organized and existing under the laws of Pennsylvania (the
"Company").
WHEREAS, RPSA is the owner of approximately 67% of the outstanding
common stock of the Company;
WHEREAS, RPSA has determined to enter into this Agreement in order to
facilitate the raising of funds by the Company (by the issuance of debt and
equity securities, including shares of Market Auction Preferred Shares (the
"Preferred Stock") in one or more series, from time to time) on favorable
terms;
WHEREAS, capitalized terms not otherwise defined herein are used
herein as defined in Schedule I attached hereto;
NOW, THEREFORE, in consideration of the following agreements and
covenants, IT IS HEREBY AGREED as follows:
1. Stock Ownership. During the term of this Agreement, RPSA will,
directly or indirectly, own free and clear of all liens a majority of the
outstanding common stock of the Company and such common stock shall be entitled
to at least a majority of the votes for the election of directors in the
ordinary course.
2. Support by RPSA. RPSA agrees with the Company that:
(a) If at any time the sum of the principal amount of
outstanding Debt and the liquidation preference of the Company's
outstanding preferred stock (including the Preferred Stock) shall
exceed 75% of Consolidated Capitalization, in each case as shown on
the Balance Sheet, RPSA will, within three Business Days, make, or
cause to be made, a Capital Increase to the extent necessary to cause
such percentage to be not more than 75%.
(b) If at any time the Consolidated Tangible Net Worth, as shown
on the Balance Sheet, shall be less than one U.S. dollar, RPSA will,
within three Business Days, make, or cause to be made, a Capital
Increase to the extent necessary to cause such Consolidated Tangible
Net Worth to be not less than one U.S. Dollar.
<PAGE> 2
2
(c) If at any time (i) dividends on any shares of Preferred
Stock shall have been declared by the Company's Board of Directors out
of funds available therefor under applicable law and the Company's
Articles of Incorporation ("Declared Dividends"), and (ii) the Company
shall fail punctually to pay such Declared Dividends, RPSA will, on
the same Business Day, make, or cause to be made, a Capital Increase
in an amount equal to the unpaid portion of such Declared Dividends.
(d) RPSA shall, and shall cause the Company to, maintain the
Facility in full force and effect without default thereunder. The
Company shall maintain, as of any date, the unused portion of the
Facility in an amount that is at least equal to all amounts payable in
the next 12 months on account of principal, interest and premium, if
any, in respect of indebtedness of the Company for borrowed money,
other than amounts (i) payable to RPSA or (ii) otherwise
unconditionally guaranteed by RPSA as to the payment of principal,
interest and premium, if any; provided, however, that such unused
portion of the Facility shall at no time be less than $325 million or
the principal amount of indebtedness of the Company for borrowed money
(other than amounts referred to in preceding clauses (i) and (ii)),
whichever is smaller.
(e) This Agreement shall remain in full force and effect so long
as any shares of Preferred Stock shall remain outstanding; provided,
however, that if the Company shall have been advised by Moody's and
S&P that, notwithstanding the termination of this Agreement, the
Preferred Stock would receive ratings of not less than a3/A-from
Moody's and S&P, respectively, then either the Company or RPSA may
terminate this Agreement by not less than ten days' written notice to
the other. The Company will take all reasonable action necessary to
enable Moody's and S&P to provide ratings for the Preferred Stock. If
either Moody's or S&P shall not provide a rating for the Preferred
Stock, or neither Moody's nor S&P shall provide a rating for the
Preferred Stock, Morgan Stanley & Co. Incorporated, The First Boston
Corporation and Lehman Brothers Division of Shearson Lehman Brothers
Inc., or their affiliates and successors, after consultation with the
Company,
<PAGE> 3
3
will select a nationally recognized statistical rating organization (a
"Substitute Rating Agency") or two nationally recognized statistical
rating organizations ("Substitute Rating Agencies"), as the case may
be, to act as a Substitute Rating Agency or Substitute Rating
Agencies. In either such event, the rating or ratings for the
Preferred Stock of such Substitute Rating Agency or Agencies
equivalent to the aforesaid ratings shall be substituted therefor and
the aforesaid advice shall be given by such Substitute Rating Agency
or Agencies.
(f) RPSA's obligations to make, or cause to be made, Capital
Increases under this Agreement shall not be subject to any offset,
setoff or counterclaim which RPSA may have or assert against the
Company, whether arising under this Agreement or otherwise.
3. Enforceability of Support Agreement. The agreements,
undertakings, covenants and obligations of RPSA herein are for the benefit of
the Company only and do not run to, and are not enforceable by, any creditor or
holder of any shares of the Company, nor shall this Agreement cause RPSA to be
responsible for the payment of any obligation of the Company to a creditor
thereof. The Company covenants that it will not give or make any warranty or
representation to shareholders or third party creditors which is inconsistent
with the provisions of this paragraph 3.
4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
5. Submission to Jurisdiction. So long as this Agreement is
required to remain in effect in accordance with its terms, RPSA (a) submits to
the jurisdiction of any New York State or Federal court sitting in New York
City with respect to matters arising out of or relating hereto, (b) agrees that
all claims with respect to such action or proceeding may be heard and
determined in such New York State or Federal court, (c) waives the defense of
an inconvenient forum, (d) consents to service of process upon it by mailing or
delivering such service to its agent, CT Corporation System, 1633 Broadway, New
York, New York 10019 (the "Agent"), and authorizes and directs its Agent to
accept such service, (e) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other
<PAGE> 4
4
manner provided by law, and (f) to the extent that it or its properties have or
hereafter may acquire immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise), waives such immunity
in respect of its obligations under this Agreement.
6. Currency of Capital Increases. If, under any applicable law,
whether as a result of judgment against RPSA, the liquidation of RPSA or any
other reason, any payment under this Agreement is made to or recovered by the
Company in a currency other than U.S. dollars (the "other currency") then, to
the extent that the payment (when the other currency is converted into U.S.
dollars at the rate of exchange on the date of payment or, in the case of a
liquidation, the latest date for the determination of liabilities permitted by
applicable law) falls short of the amount unpaid, RPSA shall, as a separate and
independent obligation, fully indemnify the Company against the amount of the
shortfall. For the purposes of the foregoing, the term "rate of exchange"
means the noon buying rate in New York City for cable transfers in foreign
currencies as announced for customs purposes by the Federal Reserve Bank of New
York on the date in question.
7. Captions. The descriptive headings of the various paragraphs
of this Agreement are for convenience only and shall not affect the meaning of
construction of any of the provisions hereof.
IN WITNESS WHEREOF, this Agreement has been executed on the date
first above written.
Rhone-Poulenc S.A.
By
-------------------------------
Title:
Rhone-Poulenc Rorer Inc.
By
-------------------------------
Title:
<PAGE> 5
SCHEDULE I
For the purposes of the Agreement, the following terms shall have the
following respective meanings:
"Balance Sheet" shall mean the consolidated balance sheet of the
Company and its subsidiaries prepared in accordance with generally accepted
accounting principles in the United States as contained in the Company's most
recent Form 10-K or Form 10-Q submitted to the Securities and Exchange
Commission or Annual Report distributed to shareholders.
"Business Day" shall mean a day on which the New York Stock Exchange
is open for trading and which is not a day on which banks in New York City are
authorized or obliged by law to close.
"Capital Increase" shall mean an addition to the capital of the
Company by one or both of the following means (at the option of RPSA):
(i) the subscription of, and payment in cash for, additional shares
of common stock of the Company, all of which payment shall be designated as
capital by the Company; or
(ii) the subscription of, and payment in cash for (at the par value
thereof), shares of preferred stock of the Company ranking junior upon any
voluntary or involuntary liquidation, dissolution or winding-up of the
Company to the Preferred Stock and not carrying any general voting rights.
The Company shall reserve a reasonable number of shares of authorized but
unissued preferred stock of the Company for issuance in connection with any
Capital Increase. Where a Capital Increase is required to be made within a
specified period, it shall be deemed to have been made within that period
if RPSA shall have furnished the Company with the required cash payment
within the period; thereafter the Company and RPSA shall complete the
issuance of the common stock or preferred stock required by such Capital
Increase as promptly as practicable.
"Company" has the meaning specified in the recitals to the Agreement.
"Consolidated Capitalization" shall mean the aggregate of (i) the
amount of "Short-term debt" minus the amount of "Cash and cash equivalents"
(the remainder to be not less than zero), (ii) the amount of "Long-term debt",
(iii) the amount of "Notes payable to Rhone-Poulenc S.A. and affiliates", (iv)
minority interests in consolidated
<PAGE> 6
2
subsidiaries (however shown on the Balance Sheet), (v) mezzanine-type
securities (however shown on the Balance Sheet) and (vi) the amount of "Total
shareholders' equity" (including the liquidation preference of the Preferred
Stock), all as shown on the Balance Sheet.
"Consolidated Tangible Net Worth" shall mean the amount of "Total
assets" minus (i) "Goodwill, net of accumulated amortization," (ii)
"Intangibles, net of accumulated amortization" and (iii) "Total liabilities",
all as shown on the Balance Sheet.
"Debt" shall mean the aggregate of (i) the amount of "Short-term debt"
minus the amount of "Cash and cash equivalents" (the remainder to be not less
than zero), (ii) the amount of "Long-term debt" and (iii) the amount of "Notes
payable to Rhone-Poulenc S.A. and affiliates," all as shown on the Balance
Sheet.
"Declared Dividends" has the meaning specified in paragraph 2(c) of
this Agreement.
"Facility" shall mean the aggregate principal amount of the facility
provided for in the Revolving Credit Facility Agreement, dated as of April 30,
1990, as amended by the Amendment Agreement, dated as of April 18, 1991, each
among the Company, Rhone-Poulenc Rorer S.A., Rhone-Poulenc Rorer GmbH, May &
Baker Pharmaceuticals Limited, RPSA, the Royal Bank of Canada Europe Limited,
Societe Generale and certain Banks named therein, without amendment thereto or
termination thereof, other than amendments that (i) do not impair the Guarantee
of RPSA contained therein and (ii) do not, in the good-faith opinion of the
Board of Directors of the Company, have an adverse effect on the ability of the
Company to perform its obligations pursuant to paragraph 2(d) hereof.
"Moody's" shall mean Moody's Investor Services, Inc.
"Preferred Stock" has the meaning specified in the recitals to the
Agreement.
"RPSA" has the meaning specified in the recitals to the Agreement.
"S&P" shall mean Standard & Poor's Corporation.
"Substitute Rating Agencies" has the meaning specified in paragraph
2(d) of the Agreement.
<PAGE> 1
Exhibit 3
Rhone-Poulenc Rorer Inc.
500 Arcola Road
P.O. Box 1200
Collegeville, PA 19426-0107
March 18, 1994
Mr. Robert E. Cawthorn
50 Crosby Brown Road
Gladwyne, PA 19035
Employment Agreement
Dear Mr. Cawthorn:
This letter agreement (the "Agreement") sets forth our understanding
concerning the terms of your continued employment with RHONE-POULENC RORER INC.
(the "Company") during the employment period (as defined below).
1. Prior Agreements. Except as otherwise specifically provided herein,
effective as of May 5, 1994, this Agreement amends and restates in
full the employment agreement between you and the Company, dated March
12, 1990, as amended (the "Prior Agreement"), and the letter agreement
between you and the Company, dated March 12, 1990, describing certain
methodologies and referred to in the Prior Agreement (the "Letter
Agreement"). During the period between the date hereof and May 5,
1994, the Prior Agreement and the Letter Agreement shall govern the
terms and conditions of your employment with the Company, provided,
however, that Paragraphs 3, 11(a), 11(b), 12(a) and 12(b) of the Prior
Agreement shall not apply after the date hereof and the employment
term under the Prior Agreement shall terminate as of May 4, 1994 by
our mutual consent and without any liability of the Company to you for
severance or otherwise.
2. Employment Period. The period of your employment hereunder will
commence on May 5, 1994 and end on May 4, 1995, provided, however,
that (i) your employment hereunder will be automatically extended for
one (1)
<PAGE> 2
2
year on each May 5th unless either you or the Company shall have given
ninety (90) days' prior written notice to the other of a desire that
such automatic extension not occur and (ii) your employment hereunder
will automatically terminate upon your resignation as Chief Executive
Officer of the Company.
3. Position and Duties. During the employment period, you will serve as
Chairman of the Board of Directors and Chief Executive Officer of the
Company, which are the positions you currently hold, having
relinquished the position of President in 1991. You will have such
responsibilities, duties and authority as you have as of the date
hereof in your positions as Chairman and Chief Executive Officer of
the Company. You agree to serve without additional compensation, if
elected or appointed thereto, as a director of any of the Company's
subsidiaries and in one or more executive offices of any of the
Company's subsidiaries, provided that you are indemnified for serving
in any and all capacities by the Company on a basis no less favorable
than is provided by the Company to you with respect to your services
to the Company, except as may be limited by applicable law. Effective
on the last day of the employment period, you will be deemed to have
resigned from all positions, directorships and offices you then hold
with the Company or any of its subsidiaries, unless the Company will
have requested and you will have agreed to continue to serve in such
capacity.
4. Compensation.
a. Amount. In consideration for your services under this Agreement,
your cash compensation for the employment period will consist of
salary at the rate of your 1994 Salary and your 1994 Bonus.
"1994 Salary" means the annual rate of salary for the
twelve-month period commencing on March 15, 1994 determined in
accordance with Paragraph 5 of the Prior Agreement. "1994 Bonus"
means the bonus payable to you for the period January 1, 1994
through December 31, 1994 determined in accordance with Paragraph
6 of the Prior Agreement.
<PAGE> 3
3
b. Time of Payment. Your compensation will be paid to you in the
following manner:
i. You will be paid base salary semi-monthly in arrears at the
1994 Salary annual rate.
ii. Not later than March 15, 1995, you will be paid an amount
equal to your 1994 Bonus; provided, however, that upon any
termination of your employment prior to December 31, 1994
due to your resignation as Chief Executive Officer of the
Company, the amount of your 1994 Bonus shall be reduced to
an amount proportionate to the actual number of days during
the bonus period in which you served as Chief Executive
Officer and such reduced 1994 Bonus will be paid to you
within ten (10) days of such resignation.
c. Lump-sum Payment upon Termination. On the day after the last day
of the employment period (as the same may be extended), you will
be paid a lump-sum amount equal to one times the 1994 Salary and
1994 Bonus (on a full year basis).
5. Equity Compensation. No later than March 15, 1995, and provided that
at such time you hold your position as Chief Executive Officer, the
Company will grant you stock options for shares of common stock of the
Company in an amount determined in accordance with Paragraph 8(b) of
the Prior Agreement and on such other terms as provided to other
senior executives. Upon the later of termination of your position as
Chief Executive Officer or May 4, 1995, (a) any restrictions on any
restricted shares you then hold will lapse, (b) any vested stock
options you then hold and such additional stock options that would be
vested as of such date if you had continued in employment through such
date will be exercisable for a period of five (5) years following such
date (it being understood that any vested stock options the ten year
term of which would normally expire at any time prior to the end of
such five year period shall expire at such normal time), and (c) any
unvested stock options you then hold will automatically expire.
<PAGE> 4
4
6. Benefits. During the employment period, you will be entitled to the
same benefits to which you are entitled under Paragraph 9 of the Prior
Agreement.
7. Unauthorized Disclosure. During the employment period and for five
years thereafter, except as necessary or appropriate in the
performance of your duties under this Agreement, you will not directly
or indirectly disclose (except as otherwise required by a court or
governmental agency) or use any trade secret or confidential
information you obtained while in the employ of the Company with
respect to any of the products, improvements, formulas, processes,
customers, methods of distribution or methods of manufacture of the
Company or any of its subsidiaries or affiliates, provided, however,
that trade secrets and confidential information will not include any
information known generally to the public or in the industry or
industries in which the Company is involved (other than as a result of
unauthorized disclosure by you).
8. Noncompetition. During the employment period and for one year
thereafter you will not directly or indirectly engage or participate
in, as an owner, investor, partner, shareholder, officer, employee,
director, agent or consultant, any business which directly or
indirectly competes with the Company or any of its subsidiaries or
affiliates (other than through the ownership of not more than five
percent of the voting stock of any corporation).
9. Miscellaneous.
a. Notices. All notices and communications required or
permitted to be given hereunder shall be duly given
delivered the same in hand or by depositing such notice or
communication in the mail, sent by certified or registered
mail, return receipt requested, postage prepaid, or by
delivery by overnight courier, with a receipt obtained
therefore, as follows:
<PAGE> 5
5
If sent to the Company:
RHONE-POULENC RORER INC.
500 Arcola Road
P.O. Box 1200
Collegeville, PA 19426-0107
Attn: General Counsel
with copy to:
RHONE-POULENC S.A.
25, quai Paul Doumer
92408 Courbevoie Cedex
FRANCE
Attn: Directeur des Affaires
Juridiques et des Accords
If sent to you:
50 Crosby Brown Road
Gladwyne, PA 19035
or such other address as either party furnished to the other
by like notice.
a. Tax Withholding. All amounts paid to you hereunder will be
subject to applicable federal, state and local tax
withholding.
b. Amendment. This Agreement may be amended only by a written
document signed by the parties hereto.
c. Governing Law. This Agreement will be governed by, and
construed in accordance with, the law of the Commonwealth of
Pennsylvania.
d. Counterparts. This Agreement may be executed in any number
of counterparts, each executed counterpart constituting an
original and such counterparts together constituting one
agreement.
<PAGE> 6
6
If you agree with the terms of your employment as set forth in this
Agreement, please execute the duplicate copy hereof in the space provided
below.
RHONE-POULENC RORER INC.
By /s/ David A. Brandies
----------------------------
Vice President
ACCEPTED AND AGREED:
By /s/ Robert E. Cawthorn
-------------------------------
Robert E. Cawthorn
ACKNOWLEDGED AND CONSENTED TO:
RHONE-POULENC S.A.
By /s/ Jean-Marc Bruel
-------------------------------
Jean-Marc Bruel
<PAGE> 1
Exhibit 4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of July 31,
1990 between RHONE-POULENC S.A., a French societe anonyme ("RP"), and
RHONE-POULENC RORER INC., a Pennsylvania corporation ("Rorer").
WHEREAS, RP and Rorer entered into an Acquisition Agreement, dated as
of March 12, 1990 (the "Acquisition Agreement"), providing, upon the terms and
subject to the conditions thereof, for the acquisition by RP of shares of
Common Stock, without par value, of Rorer (such class of capital stock of Rorer
being hereinafter referred to as "Rorer Common Stock") (all shares of Rorer
Common Stock held by RP and its subsidiaries from time to time being
hereinafter referred to as the "Shares"); and
WHEREAS, under the terms of the Acquisition Agreement, RP and Rorer
have agreed to enter into a registration rights agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereby agree as follows:
Section 1. Definitions. For the purposes of this Agreement, the
following terms have the following meanings:
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Holders" means RP and any direct or indirect subsidiary of RP holding
Registrable Securities to which registration rights have been assigned
pursuant to Section 7(a) of this Agreement.
"Registrable Securities" means the 45,834,731 Shares held by Holders
as of the date hereof, as such Shares may be adjusted from time to time by
stock dividends, stock splits and similar recapitalizations; provided,
however,
<PAGE> 2
2
that any such securities shall cease to be Registrable Securities when (i)
a registration statement with respect to the sale of such securities shall
have become effective under the 1933 Act and such securities shall have
been disposed of under such registration statement, (ii) such securities
shall have been transferred (except for transfers effected pursuant to and
in accordance with Section 7(a) of this Agreement) either (a) pursuant to
Rule 144 (promulgated under the 1933 Act) or any successor rule or
provision under the 1933 Act, or (b) pursuant to any other transaction that
is exempt from registration under the 1933 Act and complies with the
provisions of paragraphs (e) and (f) of Rule 144, (iii) such securities
shall have ceased to be outstanding or (iv) such securities shall have been
transferred or assigned other than in accordance with Section 7(a) of this
Agreement.
"Registration Expenses" means all out-of-pocket expenses incident to
Rorer's performance of, or compliance with, Section 2 hereof, including,
without limitation, all registration and filing fees (including filing fees
with respect to the National Association of Securities Dealers, Inc.), all
fees and expenses of complying with state securities or "blue sky" laws
(including fees and disbursements of underwriters' counsel in connection
with any "blue sky" memorandum or survey), all printing expenses, all
registrars' and transfer agents' fees and the fees and disbursements of
counsel for Rorer and of its independent public accountants, all
underwriting discounts and commissions and applicable transfer taxes, all
fees and disbursements of counsel for any underwriter of any Registrable
Securities being registered (other than as described above) and all fees
and disbursements of counsel for any sellers of the Registrable Securities
being registered.
Section 2. Registration Upon Request. (a) Subject to the
limitations set forth in Section 2(b), two years after the Third Step Closing
(as defined in the Acquisition Agreement), upon the written request of any
Holder of the Registrable Securities that Rorer effect the registration under
the 1933 Act of all or a specified portion of the Registrable Securities held
by such Holder and any other Holders and specifying the intended method of
disposition of such Registrable Securities, Rorer will use its reasonable best
efforts to effect the registration under the 1933 Act ofthe Registrable
Securities that Rorer has been so requested to register by such Holders.
<PAGE> 3
3
(b) Rorer's obligations under Section 2(a) shall be subject to the
following limitations:
(i) Rorer shall not be obligated to effect more than three
registrations for all Holders under Section 2(a) of this Agreement;
(ii) with respect to each demand for registration, the Holders shall
have demanded registration of at least 15% of the then Registrable
Securities;
(iii) if Rorer shall have previously effected a registration of
Registrable Securities pursuant to Section 2(a), Rorer shall not be
required to effect a registration pursuant to Section 2(a) until a period
of one year shall have elapsed from the effective date of the most recent
such registration;
(iv) if the Registrable Securities to be registered are to be sold in
an underwritten public offering, the managing underwriter selected by Rorer
for such offering shall be of nationally recognized standing and shall be
reasonably acceptable to the Holders selling Registrable Securities;
(v) except with respect to registrations requested prior thereto,
Rorer shall not be required to effect any registration pursuant to Section
2(a) after the tenth anniversary of the Third Step Closing;
(vi) if Rorer determines that it would not be in the best interest of
Rorer for a registration statement to be filed in the near future, then
Rorer's obligations to use its best efforts to file a registration
statement shall be deferred for a period not to exceed 180 days; provided,
however, that Rorer shall not obtain such a deferral more than once in any
12-month period;
(vii) Rorer shall not be obligated to effect any registration for any
entity to which Registrable Securities have been transferred or assigned in
accordance with Section 7(a) of this Agreement if such transferee or
assignee has ceased to be a direct or indirect subsidiary of RP; and
(viii) Rorer shall not be obligated to effect a registration pursuant
to Section 2(a) during the period starting with the date 60 days prior to
Rorer's good faith estimated date of filing of, and ending on the date
<PAGE> 4
4
90 days following the effective date of, a registration statement
pertaining to an underwritten public offering of securities by Rorer.
(c) If (1) any registration made pursuant to Section 2(a) involves an
underwritten offering of the Registrable Securities so to be registered, to be
distributed (on a firm commitment basis) by or through one or more
underwriters, and (2) the managing underwriter of such underwritten offering
shall advise Rorer that, in its judgment, the distribution of any portion of
the Registrable Securities to be registered will materially and adversely
affect the distribution of such securities by such underwriters, then Rorer
will promptly so advise the Holders of Registrable Securities and may require,
by written notice to the Holder that such specified portion of such Registrable
Securities be excluded from such underwritten offering (the securities so
excluded to be apportioned pro rata among the selling Holders according to the
total amount of securities proposed by such Holders to be included in such
offering).
Section 3. Registration Expenses. RP will pay all Registration
Expenses in connection with each of the registrations of Registrable Securities
effected by Rorer pursuant to Section 2.
Section 4. Registration Procedures. (a) If and whenever Rorer is
required to use its reasonable best efforts to effect the registration of any
Registrable Securities under the 1933 Act as provided in Section 2, Rorer will,
as expeditiously as is reasonable:
(i) prepare and file with the Securities and Exchange Commission
(the "Commission"), on any appropriate form, a registration statement with
respect to such Registrable Securities and use its reasonable best efforts
to cause such registration statement to become effective;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and use its best efforts to comply with the provisions
of the 1933 Act with respect to the disposition of all Registrable
Securities and other securities covered by such registration statement
until the expiration of 90 days after such registration statement first
becomes
<PAGE> 5
5
effective or, if sooner, such time as all such Registrable Securities and
other securities have been disposed of in accordance with the intended
method of disposition by the seller or sellers thereof set forth in such
registration statement;
(iii) furnish to each seller and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the 1933
Act, such documents incorporated by reference in such registration
statement or prospectus, if any, and such other documents, as such seller
may reasonably request in order to facilitate the sale or disposition of
such Registrable Securities;
(iv) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under such
other securities or "blue sky" laws of such jurisdictions as each seller
shall reasonably request, and do any and all other acts and things that may
be reasonably necessary or advisable to enable such seller or any
underwriter to consummate the disposition in such jurisdictions of its
Registrable Securities covered by such registration statement, except that
Rorer shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified, or to subject itself to taxation in respect of doing business in
any such jurisdiction, or to consent to general service of process in any
such jurisdiction or to amend its charter or by-laws to enable it to do
business in any such jurisdiction;
(v) furnish to each seller or sellers, addressed to them, an opinion
of counsel for Rorer, dated the date of the closing under the underwriting
agreement relating to any underwritten offering;
(vi) during the period, referred to in Section 4(a)(ii), that Rorer
is required to keep such registration statement effective, immediately
notify each seller of Registrable Securities covered by such
<PAGE> 6
6
registration statement at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act, of the happening of any event
as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing, or if it is necessary to amend or supplement
such prospectus or registration statement to comply with law, and at the
request of any such seller prepare and furnish to such seller a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and shall
otherwise comply in all material respects with the law and so that such
prospectus or registration statement, as amended or supplemented, will
comply with the law;
(vii) upon delivery of the certificates with respect to Registrable
Securities to be registered pursuant hereto, issue to any underwriter to
which the Holder of Registrable Securities may sell such Registrable
Securities in connection with any such registrations (and to any direct or
indirect transferee of any such underwriter) certificates evidencing such
Registrable Securities without any legend restricting the transferability
of the Registrable Securities; and
(viii) make available, as soon as reasonably practicable, an earnings
statement satisfying the provisions of Section 11(a) of the 1933 Act with
respect to such registration.
Rorer may require each seller of Registrable Securities as to which any
registration is being effected to furnish Rorer with such information regarding
such seller and the distribution of such securities as Rorer may from time to
time reasonably request in writing for inclusion in the registration statement
and as shall be required by law or by the Commission in connection therewith.
<PAGE> 7
7
Each Holder agrees that, upon receipt of any notice from Rorer of the
happening of any event of the kind described in Section 4(a)(vi) hereof, such
Holder will forthwith discontinue disposition of securities pursuant to the
registration statement covering such securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
4(a)(vi) hereof, and, if so directed by Rorer, such Holder will deliver to
Rorer all copies, other than permanent file copies then in such Holder's
possession, of the most recent prospectus covering such securities at the time
of receipt of such notice. In the event Rorer shall give such notice, Rorer
shall extend the period during which such registration statement shall be
maintained effective by the number of days during the period from and including
the date of the giving of notice pursuant to Section 4(a)(vi) hereof to the
date when Rorer shall make available to the Holders of securities covered by
such registration statement a prospectus supplemented or amended to conform
with the requirements of Section 4(a)(vi) hereof.
(b) If requested by the underwriters for any underwritten offering of
Registrable Securities on behalf of the Holder of Registrable Securities
pursuant to a registration requested under Section 2, Rorer will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to contain such representations and warranties by Rorer and such other terms
and conditions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation, opinions of
counsel, "comfort" letters signed by the independent public accountants who
have issued a report on Rorer's financial statements included in such
registration statement, and indemnities to the effect and to the extent
provided in Section 5. Each seller shall be a party to any such underwriting
agreement and the representations and warranties by, and the other agreements
on the part of, Rorer to and for the benefit of such underwriters, shall also
be made to and for the benefit of such seller.
(c) If any registration pursuant to Section 2 shall be in connection
with an underwritten public offering, each Holder of Registrable Securities
agrees, if so required by the managing underwriters, not to effect any sale or
distribution of Registrable Securities within 30 days prior to the estimated
effective date of such registration statement or (other than as part of such
underwritten public offering) 180 days after the effective date of such
<PAGE> 8
8
registration statement. Rorer may impose stop transfer restrictions with
respect to the Registrable Securities of such Holder, subject to the foregoing
restriction, until the end of such 180-day period.
Section 5. Indemnification and Contribution. (a) Rorer agrees to
indemnify and hold harmless each seller of Registrable Securities covered by a
registration statement effected pursuant to this Agreement and each person or
entity, if any, who controls any such seller within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, the prospectus included in such registration statement at the time
it became effective, or any amendment or supplement thereto, or any related
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as any such losses, claims,
damages or liabilities are caused by any such untrue statement or alleged
untrue statement or omission based upon and in conformity with information
furnished in writing to Rorer by such seller specifically for use therein;
provided that Rorer shall not be obligated to indemnify (i) such seller to the
extent that any such loss, claim, damage or liability arises out of such
seller's failure to send or give a copy of the final or amended or supplemented
prospectus to the person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such person if such
statement or omission was corrected in such final or amended or supplemented
prospectus; (ii) any such seller that controls Rorer within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act; or (iii) any
such seller to the extent that it has been finally judicially determined by a
court of competent jurisdiction that indemnification of such seller by Rorer
would be unlawful.
(b) Each seller of Registrable Securities covered by a registration
statement effected pursuant to this Agreement agrees to indemnify and hold
harmless Rorer, the directors of Rorer, the officers of Rorer who sign the
registration statement and each person (other than any seller of Registrable
Securities), if any, who controls Rorer within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, from and against any losses,
claims,
<PAGE> 9
9
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, the
prospectus included in such registration statement at the time it became
effective, or any amendment or supplement thereto, or any related preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided such statement or omission was made in
reliance upon and in conformity with information furnished in writing to Rorer
by such seller expressly for use therein.
(c) Each seller of Registrable Securities covered by a registration
statement effected pursuant to this Agreement agrees to indemnify and hold
harmless each other seller who sells securities pursuant to such registration
statement (the "Other Sellers") and each person or entity, if any, who controls
such Other Sellers within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act, from and against any losses, claims, damages or
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the registration statement, the prospectus included
in such registration statement at the time it became effective, or any
amendment or supplement thereto, or any related preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, provided such statement or omission was made in reliance upon and
in conformity with information furnished in writing to Rorer by such seller
expressly for use therein.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 5, such person (hereinafter called the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the "indemnifying party") in
writing; provided that the failure of such indemnified party to give such
notice shall not relieve such indemnifying party of its obligations hereunder
if such indemnifying party otherwise has knowledge of the institution of such
proceeding. In case any such proceeding is instituted against an indemnified
party the indemnifying party shall be entitled to participate in and, unless in
such indemnified party's reasonable judgment there are actual or potential
differing interests between the indemnified party and the indemnifying party
with respect to such proceeding, to assume the defense thereof, with counsel
reasonably
<PAGE> 10
10
satisfactory to such indemnified party, and such indemnifying party shall pay
the fees and disbursements of such counsel related to such proceeding. In any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) in
the reasonable judgment of such indemnified person, there are actual or
potential differing interests between the indemnifying party and the
indemnified party with respect to such proceeding. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such proceeding.
(e) If the indemnification provided for in Sections 5(a), (b) and (c)
is unavailable as a matter of law to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under any such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative
benefits received by such indemnified party on the one hand and the
indemnifying parties on the other and also the relative fault of such
indemnified party on the one hand and the indemnifying parties on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnified party and the
indemnifying parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above. The amount paid or payable by an indemnified
party as
<PAGE> 11
11
a result of the losses, claims, damages and liabilities referred to above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
(f) No seller of Registrable Securities covered by such registration
statement or person controlling such seller other than Rorer shall be obligated
to make contribution hereunder that in the aggregate exceeds the total public
offering price of the Registrable Securities sold by such seller, less the
aggregate amount of any damages that such seller and its controlling persons
have otherwise been required to pay in respect of the same claim or any
substantially similar claim. The obligations of such sellers to contribute are
several in proportion to their respective ownership of the securities covered
by such registration statement and not joint.
(g) The indemnity and contribution agreements contained in this
Section 5 shall remain operative and in full force and effect regardless of any
termination of this Agreement.
Section 6. Rule 144. Rorer covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act and
that it will take such further action as any Holder may reasonably request, all
to the extent required from time to time to enable Holders to sell the
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission.
Section 7. Miscellaneous.
(a) Assignment of Registration Rights. The rights of any Holder of
Registrable Securities under this Agreement may be assigned by such Holder, in
whole or in part, to RP or any direct or indirect subsidiary of RP provided
that such transferee assumes in writing the obligations of such Holder
hereunder and notice of any such assignment, together with a copy of such
written assumption, is delivered promptly to Rorer.
<PAGE> 12
12
(b) Amendment of Registration Rights. Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only with the written consent of Rorer and the Holders of at
least a majority of the then Registrable Securities. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon the Holder,
its transferees and assignees, if any, and Rorer.
(c) Effective Date of Agreement. This Agreement shall be effective
upon the Third Step Closing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RHONE-POULENC S.A.
By /s/Patrick Langlois
----------------------------
Name: Patrick Langlois
Title: Senior Vice President
Corporate Finance and
Acquistions
RORER GROUP INC.
By /s/Robert M. Infarirato
----------------------------
Name: Robert M. Infarirato
Title: Vice President
