<PAGE>
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)
CENTEON BIO-SERVICES, INC. EMPLOYEE SAVINGS 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
<TABLE>
<CAPTION>
===============================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share (1) offering price (1) registration fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 75,000 $74.813 $5,610,975 $1,701
without par value
===============================================================================================
</TABLE>
(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.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Centeon Bio-Services, Inc. Employee
Savings Plan.
<PAGE>
This Registration Statement on Form S-8 (the "Registration Statement")
filed by Rhone-Poulenc Rorer Inc. (the "Registrant") relates to 75,000 shares
(the "Shares") of the Company's Common Stock, without par value (the "Common
Stock"), and an indeterminate number of interests issuable pursuant to the
Centeon Bio-Services, Inc. Employee Savings 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.
In addition, the Report on Form 11-K for the nine month period
ended September 30, 1996 with respect to the Plan, filed with the
Commission, is incorporated by reference in this Registration Statement.
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
<PAGE>
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.
The financial statements incorporated in this Registration
Statement by reference to the Report of the Savings Plan on Form 11-K for
the nine month period ended September 30, 1996, 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:
2
<PAGE>
(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
(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 (Common Stock of Registrant) (1)
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 Centeon Bio-Services, Inc. Employee Savings Plan
(1) In lieu of an opinion of counsel concerning compliance with the
requirements of the Employee Retirement Income Security Act of
1974 as amended ("ERISA") and an Internal Revenue Service
("IRS") determination letter that the Plan is qualified under
Section 401 of the Internal Revenue Code of 1986, as amended,
the Registrant hereby undertakes to submit the Plan to the IRS
in a timely manner, and shall make all changes required by the
IRS, in order to qualify the Plan.
3
<PAGE>
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;
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
<PAGE>
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.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Jean-Marc Bruel* Director December 20, 1996
- ---------------------------------
Jean-Marc Bruel
/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
- --------------------------------- Director
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
/s/ Peter J. Neff* Director December 20, 1996
- ---------------------------------
Peter J. Neff
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ James S. Riepe*
- --------------------------------- Director December 20, 1996
James S. Riepe
- --------------------------------- Director
Jean-Pierre Tirouflet
</TABLE>
* By: /s/ Richard T. Collier
----------------------------------------------
RICHARD T. COLLIER
Senior Vice President and
General Counsel
(Attorney-in-fact)
The Plan. Pursuant to the requirements of the Securities Act of 1933,
--------
of the Plan has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in King of Prussia,
Pennsylvania on December 20, 1996.
CENTEON BIO-SERVICES, INC.
EMPLOYEE SAVINGS PLAN
By: /s/ Richard A. Bierly
--------------------------------------
Name: Richard A. Biery
Title: Vice President and Treasurer
6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
<S> <C> <C>
5 Opinion re legality (Common Stock of Registrant) (1)
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 Centeon Bio-Services, Inc. Employee Savings Plan
(1) In lieu of an opinion of counsel concerning compliance with the
requirements of the Employee Retirement Income Security Act of 1974
as amended ("ERISA") and an Internal Revenue Service ("IRS")
determination letter that the Plan is qualified under Section 401 of
the Internal Revenue Code of 1986, as amended, the Registrant hereby
undertakes to submit the Plan to the IRS in a timely manner, and
shall make all changes required by the IRS, in order to qualify the
Plan.
</TABLE>
<PAGE>
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, among other things, 75,000
shares of the Company's Common Stock, without par value (the "Shares"), which
are issuable pursuant to the Centeon Bio-Services, Inc. Employee Savings 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, as to Shares that
are original issuance shares issued to eligible participants in the Plan, 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
<PAGE>
Exhibit 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Rhone-Poulenc Rorer, Inc. (the Company) 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 and incorporated by
reference in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995. We also consent to the incorporation by reference in this
Registration Statement of the Company on Form S-8 of our report dated December
19, 1996 on our audit of the financial statements of Centeon Bio-Services, Inc.
employee Savings Plan as of September 30, 1996 and for the period January 1,
1996 (date of formation) to September 30, 1996 which report is included and
incorporated by reference in the Company's Annual Report on Form 11-K. We
consent to the references to our firm under the caption "Experts".
COOPERS & LYBRAND LLP
/s/ Coopers & Lybrand LLP
Philadelphia, Pennsylvania
December 23, 1996
<PAGE>
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 one or more Registration Statements on
Form S-8 to be filed with the Security 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 13th 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/ James S. Riepe
--------------------------- -----------------------------
Charles-Henri Filippi James S. Riepe
/s/ Dale F. Frey
--------------------------- ------------------------------
Dale F. Frey Jean-Pierre Tirouflet
/s/ Claude Helene
---------------------------
Claude Helene
WITNESS:
/s/ Richard B. Young
- ----------------------------
Richard B. Young
<PAGE>
Exhibit 99
----------
CENTEON BIO-SERVICES, INC.
EMPLOYEE SAVINGS PLAN
Effective January 1, 1996
<PAGE>
CENTEON BIO-SERVICES, INC.
EMPLOYEE SAVINGS PLAN
Effective January 1, 1996
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C> <C>
I Purpose........................................... 1
II Definitions....................................... 2
III Participating in the Plan......................... 14
IV Participant's Contributions....................... 17
V Employer Contributions............................ 20
VI Limitations on Contributions and Allocations...... 23
VII Distribution...................................... 30
VIII Vesting........................................... 35
IX Withdrawals and Loans............................. 36
X Administration.................................... 40
XI The Fund.......................................... 43
XII Investment by the Trustee......................... 44
XIII Amendment or Termination of the Plan.............. 45
XIV General Provisions................................ 46
XV Special Provisions for Top-Heavy Plans............ 48
</TABLE>
<PAGE>
ARTICLE I
---------
PURPOSE
-------
1.1 The Centeon Bio-Services, Inc. Employee Savings Plan is intended
to encourage eligible employees to build financial security by enabling them to
accumulate assets in a trust fund through convenient payroll reductions which
are enhanced by contributions from Centeon Bio-Services, Inc. (the "Company").
The Plan is designed to supplement employees' income when they retire, as well
as to help them meet preretirement financial emergencies. The trust fund will be
invested in a variety of investment media.
The Plan continues the benefits provided under the Rhone-Poulenc Rorer
Employee Savings Plan, as amended and restated effective January 1, 1989 (the
"Former Plan") from which this Plan was spun off as of January 1, 1996 for the
employees of the Company on that date or hired thereafter.
-1-
<PAGE>
ARTICLE II
----------
DEFINITIONS
-----------
2.1 "Accounts" shall mean all of the various separate accounts
--------
maintained by the Trustee for each Participant.
(a) "Basic Contribution Account I" shall mean the Account to
----------------------------
which are credited a Participant's contributions made pursuant to Section
4.1 prior to July 1, 1984.
(b) "Basic Contribution Account II" shall mean the Account to
-----------------------------
which are credited a Participant's contributions made pursuant to Section
4.1 after June 30, 1984 and to which is credited (or debited) the net
increase or decrease apportioned to such contributions.
(c) "Employer Contribution Account" shall mean the Account to
-----------------------------
which are credited Employer Contributions to the Plan.
(d) "Rollover Account" shall mean the Account to which are
----------------
credited a Participant's contributions made pursuant to Section 4.10 and to
which is credited (or debited) the net increase or decrease apportioned to
such contributions.
(e) "Supplemental Contribution Account I" shall mean the Account
-----------------------------------
to which are credited a Participant's contributions made pursuant to
Section 4.2 for periods prior to July 1, 1984.
(f) "Supplemental Contribution Account II" shall mean the Account
------------------------------------
to which are credited a Participant's contributions made pursuant to
Section 4.2 for periods after June 30, 1984 and to which is credited (or
debited) the net increase or decrease apportioned to such contributions.
(i) "Supplemental Employer Contribution Account" shall
------------------------------------------
mean the Account to which are credited Supplemental Employer Contributions
made pursuant to Section 5.2 and to which is credited (or debited) the net
increase or decrease apportioned to such contributions.
(j) "PAYSOP Account" shall mean the Account to which are credited
--------------
contributions which had previously been held in the Rorer Group Inc.
Payroll Stock Ownership Plan and which were transferred to this Plan
effective January 1, 1992.
(k) "Qualified Employer Contribution Account" shall mean the
---------------------------------------
Account established pursuant to Sections 2.39 and 2.40 of the Plan.
-2-
<PAGE>
2.2 "Activity Date" shall mean a date on which an Eligible
-------------
Employee may (a) become or cease to be a Participant and (b) make an
investment or reinvestment selection pursuant to Article XII hereof. The
Activity Dates for purposes of the Plan shall be the first day of each
calendar month during the Plan Year, or such other dates as the Committee
may determine, in its sole discretion. The Committee may establish
different Activity Dates and required notice periods for different purposes
under the Plan.
2.3 "Affiliated Company" shall mean any entity (a) which, with
------------------
the Employer, constitutes (1) a "controlled group of corporations" within
the meaning of Section 414(b) of the Code, (2) a "group of trades or
businesses under common control" within the meaning of Section 414(c) of
the Code, or (3) an "affiliated service group" within the meaning of
Section 414(m) of the Code or (b) which is required to be aggregated with
the Employer pursuant to regulations under section 414(o) of the Code and
regulations issued thereunder. An entity shall be considered an Affiliated
Company only with respect to such period as the relationship described in
the preceding sentence exists. When the term "Affiliated Company" is used
in Section 6.9 or 6.10, Sections 414(b) and (c) of the Code shall be deemed
modified by application of the provisions of Section 415(h) of the Code,
which substitute the phrase "more than 50 percent" for the phrase "at least
80 percent" each place it appears in Section 1563(a)(1) of the Code which
is then incorporated by reference in Sections 414(b) and (c) of the Code.
2.4 "Anniversary Date" shall mean the last day of each Plan Year.
----------------
2.5 "Basic Contributions" shall mean the contributions made by
-------------------
a Participant pursuant to Section 4.1.
2.6 "Board of Directors" shall mean the Board of Directors of
------------------
the Company.
2.7 "Code" shall mean the Internal Revenue Code of 1986, as
----
amended.
2.8 "Committee" shall mean the persons appointed by the Board
---------
of Directors to supervise the administration of the Plan, as hereinafter
provided.
2.9 "Company" shall mean Centeon Bio-Services, Inc., a Delaware
-------
corporation, or its successors.
2.10 "Compensation" shall mean with respect to all
------------
Participants, the base wages of a Participant paid by an Employer,
exclusive of overtime, commissions, bonuses, any contributions to any
qualified pension or other fringe benefit programs, severance pay and
amounts identified by the Employer as payment toward business expenses
incurred by the Participant without direct reimbursement, prior to any
reduction in compensation pursuant to Section 4.1 and 4.2 or pursuant to
any plan or program maintained by the Employer pursuant to Section 125 of
the Code. For purposes of Article VI, Compensation shall mean all
remuneration which is required to be reported as wages on the Participant's
Form W-2, and, unless the Company elects otherwise, any Basic or
Supplemental Contributions to this Plan or any
-3-
<PAGE>
reductions in compensation pursuant to any plan or program maintained by
the Employer pursuant to Section 125 of the Code; provided, however, that
only that remuneration paid to the Employee while he was an Eligible
Employee shall be taken into account. Compensation in excess of $200,000
($150,000 for Plan Years beginning on or after January 1, 1994) for any
Plan Year (adjusted to reflect any cost-of-living increases provided in
accordance with Section 415(d) of the Code) shall be disregarded. In
determining Compensation for purposes of the foregoing limitation, the
rules of Section 414(q)(6) of the Code shall apply, except that in applying
such rules, the term "family" shall include only the Spouse of the Employee
and any lineal descendants who have not attained age 19 before the close of
the Plan Year. If, as a result of the application of Code Section
414(q)(6), the limitation is exceeded, then the limitation shall be
prorated among the affected family members in proportion to each such
member's Compensation as determined under this Section prior to application
of the limitation.
2.11 "Earliest Retirement Age" shall mean for purposes of
-----------------------
Section 2.31 the earlier of (a) the date on which the Participant is
entitled to a distribution under the Plan or (b) the later of (i) the date
the Participant attains age 50, or (ii) the earliest date on which, under
the Plan, the Participant could elect to receive benefits if the
Participant incurred a Termination Date.
2.12 "Effective Date" shall mean January 1, 1996.
--------------
2.13 "Eligibility Computation Period" means (a) the twelve-
------------------------------
consecutive month period beginning with the Employee's Employment
Commencement Date, and (b) each Plan Year, beginning with the Plan Year
which includes the first anniversary of the Employee's Employment
Commencement Date.
2.14 "Eligibility Service" means the service credited to an
-------------------
Employee for purposes of determining his eligibility for participation in
the Plan. An Employee shall be credited with one year of Eligibility
Service for each Eligibility Computation Period during which he completes
at least 1,000 Hours of Service. For purposes of determining Eligibility
Service, a Participant will receive credit for service with (i) an
Affiliated Company after it becomes an Affiliated Company hereunder (or
with respect to an entity that is not an Affiliated Company, after the
effective date of its designation as a Participating Employer), provided
that service with such entity prior to its becoming an Affiliated Company
--------
shall be taken into account in determining an Eligible Employee's
Eligibility Service under Sections 3.1 and 3.2 only to the extent specified
in the resolutions of the Board consenting to the adoption of the Plan by
that Affiliated Company; (ii) while a "leased employee" within the meaning
of section 414(n) and section 414(o) of the Code with the Employer or an
Affiliated Company after it became an Affiliated Company hereunder, or
(iii) while an employee covered by the terms of a collective bargaining
agreement that does not provide for participation in this Plan.
2.15 "Eligible Employee" shall mean any Employee other than (i)
-----------------
an Employee who is such solely by reason of being a leased employee within
the meaning of Section 414(n) of the Code, (ii) an Employee whose terms and
conditions of employment are determined through collective bargaining shall
not be eligible to participate in the Plan unless the collective bargaining
agreement so provides, (iii) an Employee who, as to the United States, is a
non-
-4-
<PAGE>
resident alien with no U.S. source income from the Employer, and (iv)
an Employee who is a temporary employee which shall mean, for the purpose
of this Section 2.15, any person who is hired for a specific project or for
a limited duration.
2.16 "Employee" shall mean all individuals employed by the
--------
Company or an Affiliated Company, including officers, shareholders or
directors who are employees and leased employees within the meaning of
Section 414(n)(2) of the Code.
2.17 "Employer" shall mean the Company or any Affiliated
--------
Company which has duly adopted the Plan with the consent of the Board of
Directors.
2.18 "Employer Contribution" shall mean the contribution made
---------------------
by an Employer pursuant to Section 5.1.
2.19 "Employment Commencement Date" shall mean the first date
----------------------------
on which an individual performs an Hour of Service.
2.20 "ERISA" shall mean the Employee Retirement Income Security
-----
Act of 1974, as amended.
2.21 "Former Plan" shall mean the Rhone-Poulenc Rorer Employee
-----------
Savings Plan, as amended and restated effective January 1, 1989.
2.22 "415 Compensation" shall mean a Participant's remuneration
----------------
including wages, salaries, fees for professional services and other amounts
received for personal services actually rendered in the course of
employment with an Employer maintaining the Plan or an Affiliated Company
to the extent such amounts are included in gross income, including
overtime, bonuses, premium time, etc., but excluding the following:
(a) contributions to a deferred compensation plan which, without
regard to Section 415 of the Code, are not includable in the Participant's
gross income for the taxable year in which contributed;
(b) contributions made on behalf of a Participant to a simplified
employee pension described in Section 408(k) of the Code;
(c) distributions from a deferred compensation plan (regardless
of whether such amounts are includable in gross income);
(d) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by a Participant either
becomes freely transferable or is no longer subject to a substantial risk
of forfeiture;
(e) amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option; or
-5-
<PAGE>
(f) other amounts which receive special tax benefits, such as
premiums for group term life insurance (to the extent excludable from gross
income) or Employer contributions towards the purchase of an annuity
contract described in Section 403(b) of the Code.
For purposes of the definition of "Key Employee" in Section 15.2,
415 Compensation shall include elective contributions that are excluded
from gross income under Section 125, 402(e)(3), 402(h) or 403(b) of the
Code.
2.23 "Fund" shall mean the separate fund established for this
----
Plan, administered under the Trust Agreement, out of which benefits payable
under this Plan shall be paid. The Fund may be part of, or participate in,
a Pooled Investment Trust.
2.24 "Highly Compensated Employee" shall mean:
---------------------------
(a) each Employee who, with respect to the Company or an
Affiliated Company, performed services (an "Active Employee") during the
Plan Year for which a determination is being made (the "Determination
Year") and who during such Determination Year, or the preceding
Determination Year:
(1) was at any time a 5% owner (as defined in Section 416(i)
of the Code and the regulations issued thereunder);
(2) received 415 Compensation in excess of $75,000 (adjusted
to reflect any cost-of-living increases provided in accordance with Section
415(d) of the Code);
(3) received 415 Compensation in excess of $50,000 (adjusted
to reflect any cost-of-living increases provided in accordance with Section
415(d) of the Code) and was in the top 20% of Active Employees (based on
415 Compensation received) during such year; or
(4) was an officer (as defined in Section 416(i) of the Code
and the regulations issued thereunder) and received 415 Compensation
greater than 50% of the amount in effect under Section 415(b)(1)(A) of the
Code for the calendar year in which a determination is made.
Notwithstanding the foregoing, the provisions of paragraph (2), (3) or (4)
above shall not cause an Employee to be treated as a Highly Compensated
Employee for the Determination Year of reference unless such Employee is
one of the top 100 Active Employees (based on 415 Compensation received)
during such Determination Year and was not a Highly Compensated Employee in
accordance with the provisions of paragraph (2), (3) or (4) above for the
preceding Determination Year (without regard to this sentence).
(b) For purposes of determining the number of Employees in the
top
-6-
<PAGE>
20% of Active Employees in paragraph (a)(3), Employees described in Section
414(q)(8) of the Code shall be excluded to the extent (i) permitted under
Section 414(q)(8) of the Code and regulations thereunder and (ii) elected
by the Committee.
(c) For purposes of paragraph (a)(4), no more than 50 Employees
(or, if lesser, the greater of three Employees or 10% of the Employees,
excluding Employees described in section 414(q)(8) of the Code disregarded
for purposes of identifying the top 20% of Active Employees) shall be
treated as officers, and if for any Plan Year no officer is described in
such paragraph, the highest paid officer for such Plan Year shall be
treated as described in such paragraph.
(d) If any person is a member of the family of a 5% owner who is
an Employee or former Employee or of a Highly Compensated Employee in the
group consisting of the ten Highly Compensated Employees with the greatest
415 Compensation for the Plan Year, such person shall not be considered a
separate Employee. In such case, the family member (or family members) and
5% owner or Highly Compensated Employee shall be treated as a single Highly
Compensated Employee receiving 415 Compensation and Plan contributions
equal to the sum of the 415 Compensation and Plan contributions of the
family member(s) and the 5% owner or Highly Compensated Employee. The term
"family" shall mean, with respect to any Employee or former Employee, such
Employee's spouse and lineal ascendants or descendants and the spouses of
such lineal ascendants or descendants.
(e) A former Employee shall be treated as a Highly Compensated
Employee, if such Employee was a Highly Compensated Employee while an
active Employee in either the Plan Year in which such Employee separated
from service or in any Plan Year ending on or after his 55th birthday.
(f) The determination of Highly Compensated Employee made
pursuant to this Section shall be made in accordance with Section 414(q) of
the Code and the regulations issued thereunder.
(g) For purposes of this Section, the term "415 Compensation"
shall include Basic and Supplemental Contributions under this Plan.
2.25 "Hoechst Celanese" shall mean Hoechst Celanese Corporation
----------------
and any of its "affiliated companies," as that term is defined in the
Hoechst Celanese Savings Plan.
2.26 "Hoechst Celanese Savings Plan" shall mean Hoechst
-----------------------------
Celanese Savings Plan, amended and restated effective January 1, 1989, and
as amended from time to time.
2.27 "Hour of Service" shall mean an hour
---------------
(a) for which an Employee is directly or indirectly paid or
entitled to payment by an Employer or an Affiliated Company for the
performance of employment duties;
-7-
<PAGE>
(b) for which back pay is either awarded or agreed to,
irrespective of mitigation of damages;
(c) for which an Employee is directly or indirectly paid or
entitled to payment by an Employer or an Affiliated Company on account of a
period of time during which no duties are performed due to vacation,
holiday, illness, incapacity, jury duty, lay-off, or leave of absence;
(d) each hour that constitutes part of the Employee's customary
work week during any period of absence in the armed forces of the United
States, provided that (1) such absence is with the approval of the Employer
or pursuant to a national conscription law, (2) the Employee receives an
honorable discharge, and (3) the Employee returns to employment with the
Employer within 90 days after his release from active service or any longer
period during which his right to reemployment is protected by law.
There shall be excluded from the above those periods during which payments
are made or due solely for the purpose of complying with applicable
workers' compensation, unemployment compensation or disability insurance
laws. No more than 501 Hours of Service shall be credited under Subsection
(c) for any period during which no duties are performed except to the
extent otherwise provided in this Plan. An Hour of Service shall not be
credited where an Employee is being reimbursed solely for medical or
medically related expenses. Hours of Service shall be credited in
accordance with the rules set forth in DOL Reg. 2530.200b-2(b) and (c).
Notwithstanding the foregoing, the Committee may, in accordance
with uniform rules nondiscriminatorily applied, elect to credit Hours of
Service using one or more of the following equivalencies:
Basis Upon Which Records Credit Granted to
Are Maintained Individual for Period
------------------------ ---------------------
shift actual hours for full shift
day 10 hours of service
week 45 hours of service
semi-monthly period 95 hours of service
month 190 hours of service
2.28 "Investment Media" shall mean those funds, contracts,
----------------
obligations or other modes of investment selected by the Committee to which
each Participant may direct the investment of the assets of his Accounts.
-8-
<PAGE>
2.29 "Non-Highly Compensated Employee" shall mean an Employee
-------------------------------
who is not a Highly Compensated Employee.
2.30 "One-Year Break in Service" shall mean an Eligibility
-------------------------
Computation Period during which an Employee is not credited with more than
500 Hours of Service; provided that, if an Employee is absent for one of
the following reasons, he shall be credited with the Hours of Service, for
purposes of eligibility only, for each Hour of Service he would have
received if he had continued in the active employ of an Employer during the
period of absence:
(1) layoff for a period of less than six (6) months;
provided that the Employee returns to work promptly upon receipt of notice
to do so;
(2) leave of absence granted in accordance with established
leave of absence policies;
(3) military service such that his right to reemployment is
protected by law; provided the Employee makes application for reemployment
within the time provided by law; and
(4) illness or accident for a period of less than twelve
(12) months; provided, the employee returns to work as soon as he is
physically able.
If an Employee is absent from work by reason of pregnancy,
childbirth, or placement in connection with adoption, or for purposes of
the care of such Employee's child immediately after birth or placement in
connection with adoption, such Employee shall be credited, solely for
purposes of determining whether he has incurred a One-Year Break in
Service, with the Hours of Service with which such Employee would have been
credited but for the absence; or, if such hours cannot be determined, with
eight (8) Hours of Service per normal workday. The total number of hours
to be treated as Hours of Service under this paragraph shall not exceed
501. The hours described in this paragraph shall be credited either for
the Eligibility Computation Period in which the absence from work begins,
if the Employee would be prevented from incurring a One-Year Break in
Service in such Eligibility Computation Period because the period of
absence is treated as Hours of Service under this paragraph, or, in any
case, for the Eligibility Computation Period next following the one in
which the absence from work begins. Nothing in this paragraph shall be
construed as expanding or amending any maternity or paternity leave policy
of the Company.
2.31 "One-Year Period of Severance" shall mean a 12-consecutive
----------------------------
month period beginning on an Employee's Termination Date and ending on each
anniversary of such Termination Date provided that the Employee does not
perform an Hour of Service for the Company or any Affiliated Company during
such period. Notwithstanding the foregoing, if an Employee is absent for
one of the following reasons, he shall be credited with one Hour of
Service, for purposes of this Section only, for each Hour of Service he
would have received if he had continued in the active employ of an Employer
during the period of absence:
-9-
<PAGE>
(1) layoff for a period of less than six (6) months;
provided that the Employee returns to work promptly upon receipt of notice
to do so;
(2) leave of absence granted in accordance with established
leave of absence policies;
(3) military service such that his right to reemployment is
protected by law; provided the Employee makes application for reemployment
within the time provided by law; and
(4) illness or accident for a period of less than twelve
(12) months; provided, the employee returns to work as soon as he is
physically able.
If an Employee is absent from work by reason of pregnancy,
childbirth, or adoption, or for purposes of the care of such Employee's
child immediately after birth or adoption, the 12-consecutive month period
beginning on the Employee's Termination Date shall not be treated as a One-
Year Period of Severance. Nothing in this paragraph shall be construed as
expanding or amending any maternity or paternity leave policy of the
Company.
2.32 "Participant" shall mean an Eligible Employee who is
-----------
entitled to participate and who elects to participate in this Plan under
Article III hereof.
2.33 "Permanent and Total Disability" shall mean a
------------------------------
Participant's suffering a disability of a nature which enables the
Participant to qualify for and to receive disability benefits under the
Federal Social Security Act.
2.34 "Permanently and Totally Disabled Employee" shall mean a
-----------------------------------------
Participant who has suffered a Permanent and Total Disability.
2.35 "Plan" shall mean the Centeon Bio-Services, Inc. Employee
----
Savings Plan, as set forth herein and as hereafter amended from time to
time.
2.36 "Plan Year" shall mean the calendar year.
---------
2.37 "Pooled Investment Trust" shall mean a pooled investment
-----------------------
trust established pursuant to the Pooled Investment Trust Agreement among
the Company, Rhone-Poulenc Rorer Inc. ("RPR") and American Express Trust
Company ("American Express Trust") in which the assets of the Former Plan
and this Plan may be invested pursuant to the terms of each of the trust
agreements between RPR and American Express Trust and the Company and
American Express Trust.
2.38 "Qualified Domestic Relations Order" shall mean a
----------------------------------
judgment, decree or order (including approval of a property settlement
agreement) made pursuant to a state domestic relations law (including a
community property law) which:
-10-
<PAGE>
(a) relates to the provision of child support, alimony payments
or marital property rights to a spouse, former spouse, child or other
dependent of a Participant (the "Alternate Payee");
(b) creates or recognizes the existence of the Alternate Payee's
right to, or assigns to the Alternate Payee the right to, receive all or a
portion of the benefits payable to a Participant under this Plan;
(c) specifies (i) the name and last known mailing address (if
any) of the Participant and each Alternate Payee covered by the order, (ii)
the amount or percentage of the Participant's Plan benefits to be paid to
the Alternate Payee, or the manner in which such amount or percentage is to
be determined, and (iii) the number of payments or the period to which the
order applies and each plan to which the order relates; and
(d) does not require the Plan to (i) provide any type or form of
benefit, or any option not otherwise provided under the Plan, (ii) provide
increased benefits, or (iii) pay benefits to the Alternate Payee that are
required to be paid to another Alternate Payee under a prior Qualified
Domestic Relations Order. Notwithstanding the foregoing, a Qualified
Domestic Relations Order may provide that distribution commence immediately
or at any other time specified in the Qualified Domestic Relations Order,
but not later than the latest date benefits would be payable to the
Participant under Article VII, if the Order directs (i) that the payment of
the benefits be determined as if the Participant had retired on the date on
which payment is to begin under such Order, taking into account only the
balance standing to the Participant's credit in his Accounts on such date
and (ii) that the payment be made in a form in which such benefits may be
paid under the Plan to the Participant.
2.39 "Qualified Employer Contribution" shall mean a
-------------------------------
contribution made by the Employer pursuant to Section 5.3.
2.40 "Qualified Employer Contribution Account" shall mean so
---------------------------------------
much of a Participant's Account as consists of amounts attributable to
Qualified Employer Contributions under the Plan, including all earnings and
accretions attributable thereto and reduced by all losses attributable
thereto, by all expenses chargeable thereagainst and by all withdrawals and
distributions therefrom.
2.41 "Required Distribution Date" shall mean the April 1 of the
--------------------------
Plan Year following the Plan Year in which the Participant attains age
70 1/2.
2.42 "Retirement" shall mean the termination of employment of
----------
an Employee who is entitled to an immediate receipt of retirement benefits
under a pension or retirement plan maintained or contributed to by the
Employer. If a Participant does not participate in such a Plan, the
Participant's "Retirement" under this Plan shall be the later of the date
on which (a) the Participant attains age 55, (b) completes 10 years of
service (as defined in Section 8.2) and (c) ceases to be employed by the
Employer and all Affiliated Companies on or after his attainment of such
age and years of service.
-11-
<PAGE>
2.43 "RPR" shall mean Rhone-Poulenc Rorer Inc. and any of its
---
"affiliated companies," as that term is defined in the Former Plan.
2.44 "RPR Interest Accumulation Fund" shall mean an Investment
------------------------------
Medium managed by the Former Plan Committee that primarily invests in
guaranteed income contracts.
2.45 "RPR Stock" shall mean the common stock of Rhone-Poulenc
---------
Rorer Inc.
2.46 "RPR Stock Fund" shall mean the Investment Medium
--------------
dedicated to the acquisition and holding of RPR Stock.
2.47 "Rollover Contribution" shall mean the contributions made
---------------------
by a Participant pursuant to Section 4.10.
2.48 "Spouse" shall mean the spouse or surviving spouse of the
------
Participant, as the context requires; provided, that a former spouse shall
be treated as the spouse or surviving spouse to the extent provided under a
Qualified Domestic Relations Order.
2.49 "Supplemental Contributions" shall mean the contributions
--------------------------
made by a Participant pursuant to Section 4.2.
2.50 "Supplemental Employer Contribution" shall mean the
----------------------------------
contributions, if any, made by an Employer pursuant to Section 5.2.
2.51 "Termination Date" shall mean (i) for purposes of Section
----------------
2.30, the earlier of the dates on which an Employee dies or his employment
terminates for any reason; and (ii) for purposes of Section 2.31, the
earlier of (a) the date an Employee dies or retires, quits or is discharged
from the Employer and all Affiliated Companies, or (b) the first
anniversary of the date that the Employee is otherwise first absent from
work from the Employer and all Affiliated Companies (with or without pay)
for any other reason.
2.52 "Trust Agreement" shall mean the Trust Agreement(s)
---------------
executed under this Plan.
2.53 "Trustee" shall mean the corporate trustee(s) or one or
-------
more individuals collectively appointed and acting under the Trust
Agreement.
2.54 "Valuation Date" shall mean any day that the New York
--------------
Stock Exchange is open for business or such other date chosen by the
Committee on which a valuation of the Fund is made.
-12-
<PAGE>
ARTICLE III
-----------
PARTICIPATING IN THE PLAN
-------------------------
3.1 Eligibility for Participation.
-----------------------------
(a) Any Employee who was a "participant" in the Former
Plan or the Hoechst Celanese Savings Plan, as that term is defined in the
Former Plan or the Hoechst Celanese Savings Plan, immediately prior to the
Effective Date or the date on which their employment is transferred from
RPR or Hoechst Celanese to the Employer shall continue to participate in
the Plan without interruption.
(b) Any other Eligible Employee whose employment is
transferred from RPR or Hoechst Celanese to the Employer, or who is
employed by the Employer, prior to March 1, 1996, shall be eligible to
become a Participant on any Activity Date coincident with or following the
Eligible Employee's completion of 3 months of service. However, if any such
Eligible Employee has incurred a One-Year Period of Severance before he
completes 3 months of service, he shall become eligible to participate in
the Plan pursuant to Section 3.1(c) as if he were a new Employee. For
purposes of this subsection (b), any one consecutive period of service of
30 days is deemed a month. The following additional rules shall apply in
calculating an Eligible Employee's 3 months of service under this
subsection (b): (1) if an Employee retires, quits or is discharged, the
period commencing on the Employee's Termination Date and ending on the
first date on which he again performs an Hour of Service shall be taken
into account, if such date is within twelve (12) consecutive months of the
date on which he last performed an Hour of Service; (2) if the Employee is
absent from work for a reason other than one specified in Section 2.1(b)(1)
and within twelve (12) months of the first day of such absence, the
Employee retires, quits or is discharged, the period commencing on the
first day of such absence and ending on the first day he again performs an
Hour of Service shall be taken into account, if such day is within twelve
(12) months of the date his absence began.
Any individual described in this Section 3.1(b) who ceases to be an
Eligible Employee after the day on which he became eligible to become a
Participant shall again become eligible to become a Participant on the date
on which he resumes his status as an Eligible Employee. However, if any
such individual has incurred a One-Year Period of Severance, he shall
become eligible to become a Participant on the first Activity Date
following his reemployment in an Eligible Employee classification.
(c) Any other Eligible Employee who is employed by the
Employer on or after March 1, 1996, shall be eligible to become a
Participant on any Activity Date coincident with or following the later of
(i) the Eligible Employee's completion of one year of Eligibility Service
or (ii) the Eligible Employee's attainment of age 21. However, if any such
Eligible Employee has incurred a One-Year Break in Service before he
satisfies the service and age requirements of this Section 3.1(c), he shall
become eligible to participate in the Plan pursuant to Section 3.1(c) as if
he were a new Employee.
-13-
<PAGE>
Any individual described in this Section 3.1(c) who ceases to be an
Eligible Employee after the day on which he became eligible to become a
Participant shall again become eligible to become a Participant on the date
on which he resumes his status as an Eligible Employee. However, if any
such individual has incurred a One-Year Break in Service, he shall become
eligible to become a Participant on the first Activity Date following his
reemployment in an Eligible Employee classification.
(d) Notwithstanding anything to the contrary in Section
3.1(b) or 3.1(c) hereof, any Eligible Employee whose employment is
transferred from Centeon L.L.C. to the Employer and who is a participant in
the Centeon L.L.C. Employee Savings Plan immediately prior to the time of
such transfer shall become a Participant in this Plan upon the date of such
transfer. Any other Employee whose employment is transferred from Centeon
L.L.C. to the Employer shall be eligible to participate in this Plan in
accordance with Section 3.1(b) or 3.1(c) hereof, whichever is applicable,
provided such transferred Employee shall receive credit, as of the date of
transfer, for a number of years equal to the number of one-year periods of
service credited to the Employee as of the date of the transfer under the
Centeon L.L.C. Employee Savings Plan, and the Employee shall receive
credit, in the Eligibility Computation Period which includes the date of
the transfer, for a number of Hours of Service determined by applying one
of the equivalencies set forth in Department of Labor Regs. (S) 2530.200b-
4(e)(1) to any fractional part of a year credited to the Employee as of the
date of transfer.
(e) Notwithstanding anything to the contrary in the Plan,
effective January 1, 1997, if an Eligible Employee elects to participate in
the Centeon, L.L.C. Defined Contribution Excess Benefit Plan for a Plan
Year, such individual shall be entitled to make Basic Contributions or
share in Employer Contributions under the Plan for such Plan Year only as
provided in Sections 4.11 and 5.12.
(f) For purposes of determining an Eligible Employee's
eligibility under this Section 3.1, any period of employment performed by
an Employee, whose employment is transferred from RPR or Hoechst Celanese
to the Employer and who is employed by RPR or Hoechst Celanese immediately
prior to such transfer, for RPR or Hoechst Celanese prior to the transfer
shall be taken into account.
3.2 Participation. Participants shall share in Employer
-------------
Contributions and Supplemental Employer Contributions under Sections 5.1
and 5.2 for any Plan Year during which they make Basic Contributions to the
Plan.
3.3 Application for Participation. Participation in this Plan
-----------------------------
is voluntary. Each Eligible Employee who elects to become a Participant
shall become a Participant as of an Activity Date upon such notice and
after completing such enrollment and application forms as may be required
by the Committee. Each Eligible Employee who becomes a Participant shall
be deemed to have agreed to the terms and requirements of the Plan and the
Trust Agreement. Any enrollment and application form in effect under the
Centeon, L.L.C. Defined Contribution Excess Benefit Plan shall be deemed to
be an election to become a Participant in this Plan, if so provided in the
enrollment form.
-14-
<PAGE>
3.4 Data. Each Participant shall furnish to the Committee
----
such data as may be requested by the Committee for the determination of his
rights and benefits under the Plan.
3.5 Change of Eligibility Status. In the event a change of
----------------------------
job classification or a transfer to an Affiliated Company results in a
Participant no longer qualifying as an Eligible Employee, such Employee
shall cease to be an active Participant as of the effective date of such
change of job classification or transfer, but the Employee shall not be
deemed to have terminated employment with the Employer or the Affiliated
Company for purposes of this Plan.
3.6 Termination of Participation. A Participant's
----------------------------
participation will end when he and his beneficiaries have received all
benefits due to them under the Plan.
-15-
<PAGE>
ARTICLE IV
----------
PARTICIPANT'S CONTRIBUTIONS
---------------------------
4.1 Basic Contributions. Subject to the limitations set forth
-------------------
in Article VI, a Participant shall authorize the Employer, on forms
provided by the Committee, to reduce his Compensation by either 1%, 2%, 3%,
4%, 5% or 6%, up to a maximum of $6,000, adjusted to the nearer whole
dollar, as a Basic Contribution to the Plan.
4.2 Supplemental Contributions. Subject to the limitations
--------------------------
set forth in Article VI, a Participant who elects to make a Basic
Contribution of 6% (or $6,000, if less) may also elect to authorize the
Employer, on forms provided by the Committee and subject to any limitations
imposed by the Committee, to reduce his Compensation by either 1%, 2%, 3%,
4%, 5% or 6% (calculated by whole percentage points and adjusted to the
nearer whole dollar) as a Supplemental Contribution to the Plan; provided,
however, that such amount, when added to the Participant's Basic
Contributions for the Plan Year, shall not exceed the dollar limitation set
forth in Section 402(g) of the Code.
4.3 How Contributions Are Made. Except as provided in Section
--------------------------
4.11, Basic and Supplemental Contributions shall be made by payroll
reduction in accordance with the consent of the Participant granted
pursuant to the terms of Sections 4.1 and 4.2.
4.4 When Contributions Are Made. Withholding of a
---------------------------
Participant's contributions shall begin as of the first Activity Date
following a timely receipt of his written consent to withhold and shall be
completed in accordance with the Participant's instructions.
4.5 Cash Contributions. Cash contributions in lieu of payroll
------------------
reductions are not permissible, except as provided in Section 4.11.
4.6 Change of Percentage Rate. A Participant may elect to
-------------------------
change his percentage rate of contribution under Section 4.1 or 4.2 (within
the limits set forth in those Sections) as of any Activity Date. Any such
change shall be made in accordance with such written, electronic or
telephonic procedures as may be prescribed by the Committee.
4.7 Discontinuance of Contributions. By giving prior notice
-------------------------------
to the Committee, a Participant may elect to discontinue his Basic
Contributions and/or his Supplemental Contributions at any time. If a
Participant elects to discontinue his Basic Contributions, his ability to
make Supplemental Contributions will also cease. A Participant who has
discontinued either his Basic or Supplemental Contributions shall not be
permitted thereafter to make such Contributions until the Activity Date
next following the effective date of such discontinuance. Notice of
discontinuance shall be given in accordance with such written, electronic
or telephonic procedures as may be prescribed by the Committee.
-16-
<PAGE>
4.8 Return of Basic and Supplemental Contributions.
----------------------------------------------
(a) Notwithstanding any provision in the Plan to the
contrary, a Participant's Basic and Supplemental Contributions made under
this Plan and his elective deferrals (as defined in Section 402(g) of the
Code) made under any other plan or arrangement maintained by the Employer
or an Affiliated Company for a taxable year shall not exceed the dollar
limitation in Section 402(g) of the Code. Furthermore, the Participant
should notify the Committee in writing no later than the March 1 following
the Participant's taxable year that his Basic and Supplemental
Contributions (reduced by amounts previously distributed pursuant to
Sections 6.8 or 6.9) when added to his elective deferrals under any other
plan or arrangement (whether or not maintained by an Employer or Affiliated
Company) exceed the limit imposed by the Code Section 402(g) for the
taxable year in which the deferrals occurred. Not later than the April 15
following the close of the Participant's taxable year, the Committee shall
cause the Trustee to distribute to the Participant the excess deferrals
(adjusted for any income or loss attributable thereto through the date of
distribution and subject, however, to the withholding of taxes and other
amounts as though such amounts were current remuneration). A Participant
shall be deemed to have made a claim for distribution of excess deferrals
from the Plan to the extent that his Basic and Supplemental Contributions
together with his elective deferrals under any other plan or arrangement
maintained by the Employer or an Affiliated Company exceed the limit
imposed by Code Section 402(g) for the taxable year.
(b) In the event a Participant receives a distribution of
Basic Contributions pursuant to paragraph (a) of this Section, the
Participant shall forfeit any Employer or Supplemental Employer
Contributions (plus income thereon to the date of distribution) allocated
to the Participant by reason of the distributed Basic Contributions.
Amounts forfeited shall be used to reduce future Employer Contributions
made pursuant to Section 5.1.
4.9 Transfer to Trustee. Each Employer shall transfer to the
-------------------
Trustee the Basic and Supplemental Contributions of each Participant as
soon as practicable, but no more than thirty (30) days after the end of the
calendar month in which such contributions were withheld from the
Participant's Compensation.
4.10 Rollover Contributions.
----------------------
(a) In accordance with procedures established by the
Committee and applied on a uniform basis, an Eligible Employee may transfer
or have transferred directly to the Fund, from any qualified retirement
plan of a former employer, all or a portion of his vested accrued benefit
in the distributing plan, except that the amount being transferred shall
not contain nondeductible contributions made to the distributing plan by
the Eligible Employee, unless the transfer to the Fund is directly from the
funding agent of the distributing plan.
(b) In addition, an Eligible Employee who has established
an individual retirement account to hold distributions received from
qualified retirement plans of former employers may, in accordance with
procedures established by the Committee and applied
-17-
<PAGE>
on a uniform basis, transfer all of the assets of such individual
retirement account to the Fund. Such individual retirement account shall
not contain nondeductible contributions made by the Eligible Employee while
he was a participant in the plans of his former employers.
(c) The distributions transferred by or for an Eligible
Employee from another qualified retirement plan or from an individual
retirement account shall be credited to the Participant's Rollover Account.
(d) The Trustee shall not accept a distribution from any
other qualified retirement plan or from an individual retirement account
unless the following conditions are met:
(1) the distribution being transferred must come
directly from the fiduciary of the plan of the former employer, or it must
come from the Eligible Employee within 60 days after the Eligible Employee
received a distribution from such other qualified retirement plan or
individual retirement account;
(2) distributions from a plan for a self-employed
person shall not be transferred to this Plan, unless the transfer is
directly to the Fund from the funding agent of the distributing plan;
(3) the distribution being transferred will not cause
the Plan to be a direct or indirect transferee of a plan to which the joint
and survivor annuity requirements of Sections 401(a)(11) and 417 of the
Code apply; and
(4) the distribution being transferred will not cause
the Plan to violate the requirements set forth in Section 411(d)(6) of the
Code (and the regulations issued thereunder).
4.11 Transfer of Basic Contributions. Upon the conclusion of
-------------------------------
each Plan Year and prior to the fifteenth day of the third month following
the end of the Plan Year, if elected by the Participant under the terms of
the Centeon, L.L.C. Defined Contribution Excess Benefit Plan, the amount
attributable to deferral contributions which is distributed from the
Centeon, L.L.C. Defined Contribution Excess Benefit Plan shall be
contributed to the Plan and allocated to the Participant's Basic
Contribution Account II. In no event, however, shall the amount
contributed pursuant to this Section 4.11 exceed $6,000.
-18-
<PAGE>
ARTICLE V
---------
EMPLOYER CONTRIBUTIONS
----------------------
5.1 Employer Contributions. Subject to the limitations set
----------------------
forth in Article VI, each Participant's Basic Contributions shall be
matched on an annual basis by an Employer Contribution up to a maximum
Employer Contribution of $3,000 for a Participant in a Plan Year. The Basic
Contributions shall be matched by Employer Contributions in accordance with
the following schedule:
Basic Contribution Employer Contribution
(as a % of Compensation) (as a % of Basic Contribution)
------------------------ ------------------------------
1st 1% 100%
2nd 1% 90%
3rd 1% 80%
4th-6th 1% 50%
The Company may, with respect to the first Plan Year in which an
Eligible Employee elects to become a Participant pursuant to Article III
hereof, make an additional Employer Contribution of $100 on behalf of the
Participant. The Company may, in its sole discretion, elect to make an
Employer Contribution that is in excess of the amount required to be
contributed by the Company; provided, however, that in no event shall the
total Employer Contributions for any Participant for any Plan Year exceed
the $3,000 limitation referenced above.
5.2 Supplemental Employer Contributions. As soon as possible
-----------------------------------
after the end of the Plan Year, the Employer, in its discretion, may
determine to make a Supplemental Employer Contribution, subject to the
limitations set forth in Article VI. The Supplemental Employer
Contribution for any Plan Year under this Section will be made no later
than the expiration of the period within which such contribution may be
paid and deducted for the purpose of federal income taxes. Supplemental
Employer Contributions shall be allocated to the Supplemental Employer
Contribution Account of each Participant who qualifies for Employer
Contributions under Section 3.2 and who either (i) is in the active
employment of an Employer or an Affiliated Company on the last day of the
Plan Year for which such Supplemental Employer Contributions are made or
(ii) dies, suffers a Permanent and Total Disability, or has a Retirement
during the Plan Year; provided, however, that if this method of allocating
the Supplemental Employer Contribution for a Plan Year (A) would not serve
to prevent the Plan from failing to satisfy the requirements set forth in
Sections 6.3 and 6.5, respectively (such failure to be determined without
regard to the Supplemental Employer Contribution) and/or (B) would result
in the Plan's failure to satisfy either of the requirements set forth in
Sections 6.3 and 6.5, then, but
-19-
<PAGE>
only to the extent necessary to satisfy the requirements set forth in
Sections 6.3 and 6.5 (as determined by the Committee in its sole
discretion), the allocation of the Supplemental Employer Contribution for
the Plan Year shall be made only to those Participants who otherwise
satisfy the requirements set forth in (i) and (ii) above and who are also
Non-Highly Compensated Employees. Supplemental Employer Contributions
shall be treated the same as the Employer Contributions for all purposes
under the Plan, except as otherwise provided herein.
5.3 Qualified Employer Contributions. Subject to the
--------------------------------
limitations described in Article VI, the Employer may, in its discretion,
make Qualified Employer Contributions for a Plan Year, which shall be
allocated as of the last day of the Plan Year for which such contributions
are made, among the Qualified Employer Contribution Accounts of some or all
Active Participants who are not Highly Compensated Employees or other
nonhighly compensated nonexcludible Employees who are not Eligible
Employees for the Plan Year in an amount necessary to satisfy either one of
the tests in Section 6.03 or Section 6.05 or the minimum coverage
requirements of section 410(b) in accordance with Treasury Regulations
issued under sections 401(k), 401(m) or 401(a)(4) of the Code, whichever is
applicable.
5.4 Fund. The contributions deposited by the Employer in the
----
Fund in accordance with this Article V (and Article IV) shall constitute a
fund held for the benefit of Participants and terminated or retired
Employees, and their eligible survivors under and in accordance with this
Plan. No part of the principal or income of the Fund shall be used for, or
diverted to purposes other than those which are exclusively for the benefit
of such Participants, terminated or retired Employees, and their eligible
survivors including necessary administrative costs.
5.5 Determination of Amount. If any Employer in any Plan Year
-----------------------
makes a contribution in excess of the amount allowable as a deduction for
such fiscal year, the amount of the excess shall be returned to the
Employer in accordance with Section 5.7
5.6 When Contributions Are Made. Subject to Section 5.12,
---------------------------
Employer Contributions shall be paid to the Trustee at the time that a
Participant's Basic and Supplemental Contributions are forwarded to the
Trustee. Supplemental Employer Contributions shall be made at the time set
forth in Section 5.2 hereof. Qualified Employer Contributions for any Plan
Year under this Article shall be made no later than twelve (12) months
after the close of the Plan Year to which the contribution applies.
5.7 Form of Contributions. Employer contributions shall be
---------------------
made in cash.
5.8 Deductibility of Contributions. All Basic, Supplemental,
------------------------------
and Employer Contributions under the Plan are conditioned upon their
deductibility under Section 404 of the Code and, to the extent the
deduction is disallowed, shall be returned to the Employer or the
Participant as appropriate within one year after the disallowance of the
deduction. Notwithstanding the foregoing, the maximum amount which may be
returned to the Employer or a Participant shall be the lesser of either the
value of the contribution on the date it is returned or the value of the
contribution on the date it was made.
-20-
<PAGE>
5.9 Mistake. In the case of a contribution which is made under
-------
a mistake of fact, such contribution shall be returned to the Employer or
the Participant, as appropriate, within one year after the payment of the
contribution. Notwithstanding the foregoing, the maximum amount which may
be returned to the Employer or a Participant shall be the lesser of either
the value of the contribution on the date it is returned or the value of
the contribution on the date it was made.
5.10 Contributions Conditioned on Plan Qualification. All
-----------------------------------------------
contributions under the Plan are conditioned on initial qualification of
the Plan under Sections 401(a) and 401(k) of the Code, and if the Plan is
found not to so qualify, it shall be terminated in accordance with the
provisions of Section 13.2 and the Fund shall be distributed to the
Participants and the Employer, as appropriate, within one year after the
denial of such initial qualification.
5.11 Records. All contributions transferred to the Trustee
-------
under the Plan shall be provided under any method authorized by the
Committee to the Trustee and shall include: (a) identify the Participant on
whose behalf the contribution is being made, (b) state whether the
contribution represents a Basic Contribution, Supplemental Contribution,
Employer Contribution, Supplemental Employer Contribution or Qualified
Employer Contribution and (c) direct the investment of the contribution in
accordance with the Participant's investment directions pursuant to Article
XII.
5.12 Transfer of Employer Contributions. Upon the conclusion of
----------------------------------
each Plan Year and prior to the fifteenth day of the third month following
the end of the Plan Year, the amount attributable to Company contributions
which is distributed from the Centeon, L.L.C. Defined Contribution Excess
Benefit Plan shall be contributed to the Plan and allocated to the
Participant's Employer Contribution Account.
-21-
<PAGE>
ARTICLE VI
----------
LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
--------------------------------------------
6.1 General Requirements. For any Plan Year, (a) contributions
--------------------
under the Plan shall not exceed the limitations on deductions imposed under
Sections 404(a)(3) and 404(a)(9) of the Code, and (b) the Plan shall
satisfy (i) the coverage requirements of Section 410(b)(1) of the Code,
(ii) the average deferral percentage test set forth in Section 6.3 and
(iii) the average contribution percentage test set forth in Section 6.5.
6.2 Allocations. Each Employer Contribution shall be allocated
-----------
as of the day the contribution is received by the Trustee with respect to
each Participant in accordance with Section 5.1. Supplemental Employer
Contributions shall be allocated to each Participant eligible to
participate in the contribution under Section 5.2 as soon as possible after
the close of the Plan Year for which the contribution is made, and shall be
based on the amount of the Basic Contributions made by such Participant
during the Plan Year to total Basic Contributions of all eligible
Participants for such Plan Year.
6.3 Average Deferral Percentage Test. The average deferral
--------------------------------
percentage for Highly Compensated Employees who are Eligible Employees
shall not exceed the greater of (a) or (b) as follows:
(a) The average deferral percentage for all Eligible
Employees who are Non-Highly Compensated Employees, multiplied by 1.25, or
(b) The average deferral percentage for all Eligible
Employees who are Non-Highly Compensated Employees, multiplied by 2.0;
provided that the average deferral percentage for Highly Compensated
Employees who are Eligible Employees may not exceed the average deferral
percentage for Eligible Employees who are Non-Highly Compensated Employees
by more than two percentage points.
6.4 Average Deferral Percentage. For purposes of Section 6.3,
---------------------------
the term "average deferral percentage" as applied to a specified group of
Eligible Employees shall mean the average of the ratios, calculated
separately for each such Eligible Employees in such group of:
(a) the amount of Basic and Supplemental Contributions
(excluding any such contributions taken into account in determining the
average contribution percentage in Section 6.5(a), distributed to a Non-
Highly Compensated Employee pursuant to a deemed claim for distribution
under Section 4.8, or returned pursuant to Section 6.9) plus, at the
election of the Committee, any portion of the Supplemental Employer
Contributions and/or Qualified Employer Contributions allocated to the
Participant for the Plan Year permitted to be taken into account under
section 401(k) of the Code and regulations thereunder, paid to the Plan on
behalf of each such Participant for such Plan Year, to
-22-
<PAGE>
(b) the Participant's Compensation for such Plan Year;
provided, however, that only that Compensation paid to a Participant while
he was an Eligible Employee shall be taken into account.
For the purposes of this Section, the deferral percentage of a
Highly Compensated Employee who is an Eligible Employee under this Plan and
who has made elective deferrals under any other qualified cash or deferred
arrangement maintained by the Company or an Affiliated Company pursuant to
Section 401(k) of the Code shall be the sum of his deferral percentages
under all such plans (excluding those that are not permitted to be
aggregated with the Plan under Treas. Reg. (S)1.401(k)-1(b)(3)(ii)(B)) for
the Plan Year. In addition, this Plan shall be aggregated and treated as a
single plan with other plans maintained by the Company or an Affiliated
Company to the extent that this Plan is aggregated with any such other plan
for purposes of satisfying Section 410(b) (other than section
410(b)(2)(A)(ii)) of the Code.
6.5 Average Contribution Percentage Test. The term "average
------------------------------------
contribution percentage test" shall mean the numerical test set forth in
Section 6.3 substituting for the term "average deferral percentage" the
term "average contribution percentage".
(a) The term "average contribution percentage" as applied to
a specified group of Eligible Employees shall mean the average of the
ratios, calculated separately for each such Participant in such group of:
(1) the amount of Employer Contributions paid to the
Plan on behalf of such Participant for such Plan Year (excluding any such
contributions forfeited pursuant to Section 4.8 or 6.8(b)) plus, at the
election of the Committee, any portion of the Supplemental Employer
Contributions and/or Qualified Employer Contributions allocated to the
Participant for the Plan Year required or permitted to be taken into
account under section 401(m) of the Code and regulations thereunder and
plus, at the discretion of the Committee, Basic and Supplemental
Contributions, to
(2) the Participant's Compensation for such Plan Year;
provided, however, that only that Compensation paid to a Participant while
he was an Eligible Employee shall be taken into account.
(b) Basic and Supplemental Contributions may be taken into
account under this Section only to the extent necessary to satisfy the
average contribution percentage test, and only to the extent that the Plan
continues to satisfy the average deferral percentage test set forth in
Section 6.3 without taking into account such Basic and Supplemental
Contributions.
(c) For purposes of this Section, the contribution
percentage of a Highly Compensated Employee who is an Eligible Employee
under this Plan and who has made employee after-tax contributions or for
whom employer matching contributions were made under any other plan of the
Company or an Affiliated Company shall be the sum of his contribution
percentages under all such plans (excluding those that are not permitted to
be aggregated with the
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<PAGE>
Plan under Treas. Reg. (S)1.401(m)-1(b)(3)(ii)) for the Plan Year.
(d) For purposes of determining contribution percentages, the
Employer or the Committee may take Basic and Supplemental Contributions
into account, in accordance with Treasury regulations, so long as the
requirements of Section 6.03 are met both when the Basic and Supplemental
Contributions used in determining contribution percentages are and are not
included in determining actual deferral percentages. In addition, this
Plan shall be aggregated and treated as a single plan with other plans
maintained by the Company or an Affiliated Company to the extent that this
Plan is aggregated with any such other plan for purposes of satisfying
Section 410(b) (other than section 410(b)(2)(A)(ii)) of the Code.
6.6 Limitation on Use of Percentage Tests. For any Plan Year,
-------------------------------------
the sum of the average deferral percentage and the average contribution
percentage for all Highly Compensated Employees who are Eligible Employees
shall not exceed the greater of (a) and (b) where:
(a) is the sum of (i) 1.25 times the greater of the relevant
actual deferral percentage or the relevant actual contribution percentage
and (ii) two percentage points plus the lesser of the relevant actual
deferral percentage or the relevant actual contribution percentage. In no
event, however, shall this amount exceed twice the lesser of the relevant
actual deferral percentage or the relevant actual contribution percentage;
and
(b) is the sum of (i) 1.25 times the lesser of the relevant
actual deferral percentage or the relevant actual contribution percentage
and (ii) two percentage points plus the greater of the relevant actual
deferral percentage or the relevant actual contribution percentage. In no
event, however, shall this amount exceed twice the greater of the relevant
actual deferral percentage or the relevant actual contribution percentage.
For purposes of this Section, the term "relevant actual deferral
percentage" means the actual deferral percentage of the group of Non-Highly
Compensated Employees who are Eligible Employees and the term "relevant
actual contribution percentage" means the actual contribution percentage of
the group of Non-Highly Compensated Employees who are Eligible Employees.
If the limitation in this Section is not met, the actual deferral
percentage or the actual contribution percentage of Highly Compensated
Employees, as determined by the Committee, shall be reduced in the manner
prescribed in Section 6.8 until the limitation is met; provided, however,
that in Plan Years beginning after 1991, the actual contribution percentage
shall be reduced to satisfy this limit. The determination and treatment of
the Basic Contributions, Supplemental Contributions, Employer
Contributions, Supplemental Employer Contributions, Qualified Employer
Contributions, Average Deferral Percentage and Average Contribution
Percentage of any Participant shall satisfy such other requirements as may
be prescribed by the Secretary of the Treasury.
For purposes of this Section, this Plan shall be aggregated and
treated as a single plan with other plans maintained by the Company or an
Affiliated Company to the extent
-24-
<PAGE>
that this Plan is aggregated with any such other plan for purposes of
satisfying Section 410(b) (other than section 410(b)(2)(A)(ii)) of the
Code.
6.7 Treatment of Family Members. For purposes of Section 6.3
---------------------------
and 6.5, if a Highly Compensated Employee is subject to the family
aggregation rules of Section 414(q)(6) of the Code because he is either a
5% owner (as defined in Section 416(i) of the Code and regulations issued
thereunder), or is one of the top 100 Highly Compensated Employees (based
on 415 Compensation received including Basic and Supplemental Contributions
hereunder) during the Plan Year of reference, the combined actual deferral
(or contribution) ratio for the family group (which shall be treated as one
Highly Compensated Employee) shall be the actual deferral (or contribution)
ratio determined by combining the applicable contributions and Compensation
of all of the eligible family members. Any family member(s) included above
shall not be considered a separate Participant in determining the average
deferral percentage or average contribution percentage hereunder. For
purposes of this paragraph, "family member" means, with respect to an
Employee, such Employee's spouse and lineal ascendants and descendants and
the spouses of such lineal ascendants and descendants.
6.8 Return of Excess Contributions.
------------------------------
(a) If the average deferral percentage or the average
contribution percentage for all Participants who are Highly Compensated
Employees exceeds the amount specified in Sections 6.3 or 6.5 for any Plan
Year, the Basic and Supplemental Contributions (and corresponding Employer
Contributions) for the Highly Compensated Employee(s) with the highest
deferral (or contribution) percentage shall be reduced so that his
applicable percentage is reduced to the greater of (1) such percentage that
enables the Plan to satisfy the applicable percentage test, or (2) a
percentage equal to the applicable percentage of the Highly Compensated
Employee(s) with the next highest percentage. This procedure shall be
repeated until the applicable percentage test is satisfied. For purposes of
determining the necessary reduction, Basic and Supplemental Contributions
previously distributed pursuant to Section 4.8 shall be treated as
distributed under this Section 6.8(a).
(b) The average deferral percentage of any Highly
Compensated Employee which must be reduced pursuant to paragraph (a) shall
be reduced (1) first, by distributing Supplemental Contributions and (2)
then, by distributing Basic Contributions to the Employee; and the
provisions of Section 4.8(b) regarding the forfeiture of related Employer
Contributions or Supplemental Employer Contributions shall apply.
(c) The average contribution percentage of any Highly
Compensated Employee which must be reduced pursuant to paragraph (a) shall
be reduced by distributing the excess Employer Contributions to the
Employee.
(d) Any distribution or forfeiture of Basic or
Supplemental Contributions or Employer Contributions necessary pursuant
to subsections (a), (b) or (c) shall include a distribution or forfeiture
of the income, if any, allocable to such contributions. Such income shall
be equal to the sum of the allocable gain or loss for the Plan Year and
shall be
-25-
<PAGE>
determined by the Committee in a manner uniformly applicable to all
Participants and consistent with Treasury regulations.
(e) Distribution under paragraphs (b) and (c) shall be
made within two and one half (2 1/2) months following the close of such
Plan Year, if administratively practicable, but in no event later than the
last day of the Plan Year following such Plan Year.
(f) For purposes of satisfying the nondiscrimination test
described in Section 6.6, the Employer Contributions of all Highly
Compensated Employees shall be reduced as described in subsection (c).
6.9 Maximum Allocation to Participants.
----------------------------------
(a) Notwithstanding any other provision of this Plan, the
amount of the Annual Addition to each Participant's Accounts for any Plan
Year may not exceed the lesser of:
(1) $30,000 (or, if greater, 25% of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code), or
(2) 25% of the total 415 Compensation paid to the
Participant during a Plan Year.
The limitation referred to in paragraph (2) shall not apply to any
contribution for medical benefits within the meaning of Section 401(h) or
Section 419A(f)(2) of the Code which is otherwise treated as an Annual
Addition under Section 415(l)(1) or 419A(d)(2) of the Code.
(b) For purposes of this Section, "Annual Addition" means
the sum of all contributions including all after-tax contributions, by the
Participant or by the Employer or an Affiliated Company hereunder or under
any defined contribution plan maintained by either, all forfeitures
allocated to the Participant's accounts under such plans, and amounts
treated as part of an Annual Addition under Sections 415(l) and 419A(d)(2)
of the Code.
(c) If the amount otherwise allocable to the Accounts of a
Participant would exceed the amount described above as a result of the
reallocation of forfeitures, a reasonable error in estimating the
Participant's Compensation, a reasonable error in determining the amount of
elective deferrals (within the meaning of Section 402(g) of the Code) that
may be made under the limitations of Section 415 of the Code, or such other
circumstances as permitted by law, the Committee shall determine which
portion, if any, of such excess amount is attributable to the Participant's
Basic and Supplemental Contributions, and/or Employer Contributions, and/or
Supplemental Employer Contributions and/or Qualified Employer
Contributions, if any, until such amount has been exhausted. To the extent
any portion of a Participant's Basic or Supplemental Contributions are
determined to be excess under this Section, such Basic or Supplemental
Contributions, with income thereon, shall be returned to the Participant as
soon as administratively practicable. To the extent any portion of the
Employer Contributions, Supplemental Employer Contributions or Qualified
Employer Contributions allocable to a
-26-
<PAGE>
Participant are determined to be excess under this Section, while the
Participant remains an Eligible Employee, his excess Employer
Contributions, Supplemental Employer Contributions and/or Qualified
Employer Contributions shall be held in a suspense account (which shall
share in investment gains and losses of the Fund) by the Trustee until the
following Plan Year (or any succeeding Plan Years), at which time such
amounts shall be allocated to the Participant's Accounts before any
Employer Contributions, Supplemental Employer Contributions or Qualified
Employer Contributions are made on his behalf for the Plan Year. When the
Participant ceases to be an Eligible Employee, his excess Employer
Contributions, Supplemental Employer Contributions and/or Qualified
Employer Contributions held in the suspense account shall be allocated in
the following Plan Year (or any succeeding Plan Years) to the Accounts of
other Participants in the Plan. Furthermore, the Committee shall perform
any other actions as may be necessary to preserve the Plan's status as a
qualified plan.
6.10 Maximum Allocation Under all Plans. If a Participant is
----------------------------------
also earning retirement benefits under a separate defined benefit plan or
plans established by the Company or an Affiliated Company, the benefits
under such plan or plans shall be so limited that the sum of (a) and (b)
below shall not exceed 1.0, where:
(a) is a fraction, the numerator of which is the projected
annual benefit of the Participant under the defined benefit plan(s) and the
denominator of which is the lesser of:
(1) the product of 1.25 and $90,000 (subject to all
adjustments as are permitted by, or required under Section 415 of the
Code), or
(2) the product of 1.4 and 100% of the Participant's
average annual 415 Compensation for his high three consecutive years; and
(b) is a fraction, the numerator of which is the sum of all
Annual Additions for all Plan Years during which he was a Participant and
the denominator of which is the sum, for all Plan Years during which the
Participant was an Employee of the Employer of the lesser of:
(1) the product of 1.25 and the dollar limitation in
effect under Section 415(c)(1)(A) of the Code for such Plan Year, or
(2) the product of 1.4 and 25% of the Participant's 415
Compensation for such Plan Year.
6.11 Accounts. All contributions and earnings thereon may be
--------
invested in one commingled fund for the benefit of all Participants. In
order that the interest of each Participant may be accurately determined
and computed, however, separate Accounts shall be maintained for each
Participant which shall represent his interest in the Fund.
-27-
<PAGE>
ARTICLE VII
-----------
DISTRIBUTION
------------
7.1 General. The interest of each Participant in the Fund
-------
shall be distributed in the manner, in the amount and at the time provided
in this Article, except that in the event of termination of the Plan, the
provisions of Section 13.2 shall govern.
7.2 Retirement. Subject to Section 7.10, upon a Participant's
----------
Retirement, the value of his Accounts in the Fund, computed in accordance
with Section 7.7 shall be paid to him as soon as administratively
practicable following the date of his Retirement in a single payment. In
lieu of receiving a single payment, a Participant may elect to draw upon
his Accounts pursuant to a continuous withdrawal right which shall be
subject to such reasonable terms and conditions (such as minimum amounts
and frequency of withdrawals) as may be established by the Committee, in
its sole discretion. If the Employer determines to make a Supplemental
Employer Contribution or Qualified Employer Contribution for the Plan Year
during which a Participant's Retirement occurs, such Participant's pro rata
share thereof shall be paid to him (or made available to him) as soon as
practicable after the Supplemental Employer Contribution or Qualified
Employer Contribution has been made unless the Participant has elected to
defer distribution pursuant to Section 7.10.
7.3 Death. In the event of a Participant's death, the value
-----
of his Accounts in the Fund, computed in accordance with Section 7.7, shall
be paid in a single distribution as soon as practicable following the date
of his death in accordance with Section 7.4. If the Employer determines to
make a Supplemental Employer Contribution or Qualified Employer
Contribution for the Plan Year during which a Participant dies, such
Participant's pro rata share thereof shall be paid to the Participant's
designated beneficiary as soon as practicable after the Supplemental
Employer Contribution or Qualified Employer Contribution has been made.
7.4 Beneficiary Designation.
-----------------------
(a) Death benefits under the Plan shall be paid to the
Participant's surviving Spouse (i) unless (A) the Spouse consents in
writing not to receive such benefit, (B) such consent acknowledges its own
effect and (C) such consent is witnessed by a notary public; or (ii) unless
the Participant establishes to the satisfaction of a Plan representative
either that he has no Spouse or that his Spouse cannot be located.
(b) Except as provided in this Section, each Participant
shall have the unrestricted right at any time to designate the beneficiary
or beneficiaries who shall receive, on or after his death, his interest in
the Fund. Such designation shall be made by executing and filing with the
Committee a written instrument in such form as may be prescribed by the
Committee for that purpose. Except as provided in this Section, the
Participant shall also have the unrestricted right to revoke and to change,
at any time and from time to time, any beneficiary designations previously
made; provided, however, that the Spouse of the Participant must consent to
any such revocation or change. Such revocations and/or changes shall be
made by executing and filing
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<PAGE>
with the Committee a written instrument in such form as may be prescribed
by the Committee for that purpose. No designation, revocation, or change
of beneficiaries shall be valid and effective unless and until filed with
the Committee. If no designation is made, or if the beneficiaries named in
such designation predecease the Participant, or if the beneficiaries cannot
be located by the Committee, the interest of the deceased Participant shall
be paid to the Participant's surviving Spouse or, if none, to the
Participant's estate.
7.5 Disability. Subject to Section 7.10, in the event that a
----------
Participant suffers a Permanent and Total Disability, the value of his
Accounts, computed in accordance with Section 7.7, shall be paid to him or
applied for his benefit in a single payment as soon as practicable
following the date on which the Committee determines that he has a
Permanent and Total Disability. In lieu of receiving a single payment, a
Participant may elect to receive his Account balances in substantially
equal payments in monthly, quarterly or annual installments. If the
Employer determines to make a Supplemental Employer Contribution or
Qualified Employer Contribution for the Plan Year during which the
Permanent and Total Disability occurs, such Participant's pro rata share
thereof shall be paid to him (or made available to him) as soon as
practicable after the Supplemental Employer Contribution or Qualified
Employer Contribution has been made unless such Participant has elected to
defer distribution pursuant to Section 7.10.
Permanent and Total Disability shall be determined by the
Committee, who may consult with a medical examiner and who may require a
Participant to undergo physical or other examinations reasonably necessary
to form the basis of the Committee's determination.
7.6 Treatment of Terminated Participant.
-----------------------------------
(a) In the case of a Participant whose employment with
the Employer and all Affiliated Companies has terminated (other than by
Retirement, death, or Permanent and Total Disability) and whose vested
Account balances do not exceed $3,500 (and has never exceeded $3,500 at the
time of any prior distribution), the benefit of such Participant,
calculated in accordance with Section 7.7, shall be paid to or applied for
the benefit of such Participant in a single sum as soon as practicable.
(b) Subject to Section 7.10, in the case of a Participant
whose employment with the Employer and all Affiliated Companies has
terminated (other than by Retirement, death, or Permanent and Total
Disability) and whose vested Account balances exceed $3,500 (or have ever
exceeded $3,500 at the time of any prior distribution), the benefit of such
Participant, calculated in accordance with Section 7.7, shall be paid to or
applied for the benefit of such Participant in a single payment as soon as
practicable following the date of termination. In lieu of receiving a
single payment, a Participant may elect to receive his vested Account
balance in substantially equal payments in monthly, quarterly or annual
installments.
7.7 Valuation for Distribution. For the purposes of paying
--------------------------
the amounts to be distributed to a Participant or his beneficiaries under
the provisions of this Article, the value of the Fund and the amount of the
Participant's Accounts shall be determined in accordance with the
provisions of this Section as of the Valuation Date coincident with or next
following the date on
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<PAGE>
which occurs the event which gives rise to payment under this Article (or
the date of the Participant's consent pursuant to Section 7.10, if later).
The Trustee may establish accounting procedures for the purpose of making
the allocations, valuations, and adjustments necessary to maintain the
Participant's Accounts in the Fund. From time to time, the Trustee may
modify its accounting procedures for the purpose of achieving equitable and
nondiscriminatory allocation among the Accounts of Participants in
accordance with the general concepts of the Plan and the provisions of this
Article. All valuations of the Fund shall be performed on the basis of the
fair market value of each of the assets therein.
7.8 Timing of Distribution.
----------------------
(a) Unless the Participant elects otherwise, a Participant
entitled under this Article to receive benefits shall commence to receive
benefits no later than the earlier of the dates determined under (1) and
(2) below:
(1) the later of (A) the 60th day after the close of
the Plan Year in which the Participant attains age 65 or (B) the 60th day
after the close of the Plan Year in which the Participant's employment with
the Employer and all Affiliated Companies terminates; or
(2) the Participant's Required Distribution Date.
(b) A Participant who is an Employee on his Required
Distribution Date, instead of receiving payment in a single sum, may elect
to receive distribution of his Accounts while he remains an Employee in
annual installments, commencing not later than his Required Distribution
Date, over a period certain not extending beyond the life expectancy of the
Participant, with no recalculation of life expectancy. Each such annual
installment shall equal the minimum amount required to be distributed
pursuant to Section 401(a)(9) of the Code and regulations thereunder based
on the applicable life expectancy. Notwithstanding the Participant's
election to receive distribution as described above, the amounts remaining
in the Participant's Accounts upon his actual termination of employment
with the Employer and all Affiliated Companies will be distributed to him
in a single sum on the earliest practicable date following such
termination, but not later than the 60th day following the close of the
Plan Year in which such termination occurs.
(c) Notwithstanding anything in this Plan to the contrary,
a Qualified Domestic Relations Order may provide that any benefits of a
Participant payable to an Alternate Payee shall be distributed immediately
or at any other time specified in the Qualified Domestic Relations Order,
but not later than the latest date benefits would be payable to the
Participant under this Article. If the Qualified Domestic Relations Order
does not specify the time at which benefits shall be payable to the
Alternate Payee, the Alternate Payee may elect, in writing on a form
prescribed by the Committee, to have benefits commence (A) in accordance
with Section 7.6, as of the earlier of (i) the Participant's 50th birthday
or (ii) the Participant's termination of employment, or as of any date
thereafter that is not later than the latest date on which benefits would
be payable to the Participant pursuant to Section 7.6 or (B) in accordance
with Section 7.3, but as of the Alternate Payee's death; provided, however,
that in the event the
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<PAGE>
amount payable to the Alternate Payee under the Qualified Domestic
Relations Order does not exceed $3,500, such amount shall be paid to the
Alternate Payee in a single sum as soon as practicable following the
Committee's receipt of the order and verification of its status as a
Qualified Domestic Relations Order.
7.9 Mode of Distribution. Distributions under this Article
--------------------
shall be made as follows:
(a) the portion of a Participant's Accounts that is not
invested in the RPR Stock Fund shall be paid in cash; and
(b) the portion of a Participant's Accounts that is
invested in the RPR Stock Fund shall be paid in whole shares of RPR Stock
unless the Participant elects to have the portion of his Accounts invested
in the RPR Stock Fund converted to and distributed in cash. If the
Participant makes an election to receive cash in lieu of RPR Stock, his
distribution shall be reduced by any expense incurred (including brokerage
fees and commissions) in converting the portion of his Accounts invested in
the RPR Stock Fund to cash.
7.10 Consent to Distribution. Notwithstanding anything in the
-----------------------
Plan to the contrary, in the case of a Participant whose interest in his
Accounts exceeds $3,500 (or has ever exceeded $3,500 at the time of any
prior distribution), no distribution shall be made pursuant to Section 7.2,
7.5 or 7.6 prior to the Participant's attainment of his Required
Distribution Date without the written consent of the Participant. If the
Participant does not so consent, then distribution will be deferred until
any subsequent date elected by the Participant in writing pursuant to such
procedures as the Committee may impose, but not later than the
Participant's Required Distribution Date. A Participant's election to
receive payment prior to his Required Distribution Date must be made within
the 90-day period ending on the benefit payment date elected by the
Participant and in no event earlier than the date the Committee provides
the Participant with notice of his right to defer payment until his
Required Distribution Date and the modes of payment available. Such notice
must be supplied not less than 30 days nor more than 90 days prior to the
benefit payment date. Notwithstanding the preceding sentence, if Sections
401(a)(11) and 417 of the Code do not apply to the distribution, the
distribution shall commence less than 30 days after receipt of the notice
described herein, provided that the Participant has been notified that he
has a right to a period of at least 30 days to elect a distribution and the
Participant, after receiving such notice, affirmatively elects a
distribution.
7.11 Direct Transfers.
----------------
(a) In the event any payment or payments to be made under
the Plan to a Participant, a beneficiary who is the surviving spouse of a
Participant, or an alternate payee under a Qualified Domestic Relations
Order who is the spouse or former spouse of a Participant would constitute
an "eligible rollover distribution," such individual may request that such
payment or payments be transferred directly from the Trust Fund to the
trustee of (i) an individual retirement account described in Section 408(a)
of the Code, (ii) an individual retirement annuity
-31-
<PAGE>
described in Section 408(b) of the Code (other than an endowment contract),
(iii) an annuity plan described in Section 403(a) of the Code, or (iv) a
qualified retirement plan the terms of which permit the acceptance of
rollover distributions; provided, however, that clauses (iii) and (iv)
shall not apply with respect to an eligible rollover distribution made to a
beneficiary who is the surviving spouse of a Participant or an alternate
payee under a Qualified Domestic Relations Order who is the former spouse
of a Participant. Any such request shall be made in writing, on the form
prescribed by the Committee for such purpose, at such time in advance as
the Committee may specify.
(b) For purposes of this Section 7.11, eligible rollover
distribution shall mean a distribution from the Plan, excluding (i) any
distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) over the life (or life
expectancy) of the individual, the joint lives (or joint life expectancies)
of the individual and the individual's designated beneficiary, or a
specified period of ten (10) or more years, (ii) any distribution to the
extent such distribution is required under Section 401(a)(9) of the Code,
and (iii) any distribution to the extent such distribution is not included
in gross income.
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<PAGE>
ARTICLE VIII
------------
VESTING
-------
8.1 Accounts. Each Participant shall be fully vested at all
--------
times in all of his Accounts under the Plan. In the event the vesting
schedule of this Plan is amended, any Participant who has completed at
least three (3) Years of Service at the time of such amendment may elect to
have his then vested interest in his Accounts determined without regard to
such amendment, by notifying the Committee on a form provided for such
purposes by the Committee. For purposes of this Section 8.1, an amendment
of the vesting schedule of the Plan is a Plan amendment which directly or
indirectly affects the computation of the nonforfeitable percentage of a
Participant's rights to his account balance including any change in the
Plan which affects either the Plan's computation of Years of Service or of
vesting percentages for Years of Service.
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<PAGE>
ARTICLE IX
----------
WITHDRAWALS AND LOANS
---------------------
9.1 General. The interest of each Participant in the Fund may
-------
be withdrawn in the manner, in the amount and at the time provided in this
Article. All withdrawals must be made on written notice in accordance with
the procedures established by the Committee. A withdrawal of less than the
full value of an Account may be made only in multiples of $100, except as
provided under Section 9.5.
9.2 Special Withdrawals. With the approval of the Committee,
-------------------
a Participant may withdraw, without penalty, up to the total value of his
Accounts upon:
(a) termination of the Plan without establishment of a
successor plan; or
(b) the sale by an Employer of substantially all of its
assets used in a trade or business or of its interest in a subsidiary if
the Participant making the withdrawal begins employment with the
corporation acquiring such assets (the "Purchaser") and if the Purchaser
does not maintain the Plan after the disposition.
Unless otherwise determined by the Committee, any withdrawal
pursuant to Section 9.2(b) must be made before the end of the second Plan
Year following the Plan Year in which the disposition occurred.
9.3 Withdrawals from Basic Contribution Account I and
-------------------------------------------------
Supplemental Contribution Account I. A Participant may withdraw from his
-----------------------------------
Basic Contribution Account I and Supplemental Contribution Account I all or
any portion of such Accounts.
9.4 Withdrawals from Rollover Account. A Participant may
---------------------------------
withdraw, as of any date, all or any portion of his Employee Valuation
Account and/or his Rollover Account.
9.5 Withdrawals From Basic Contribution Account II,
-----------------------------------------------
Supplemental Contribution Account II, Supplemental Employer Contribution
------------------------------------------------------------------------
Account and Qualified Employer Contribution Account.
---------------------------------------------------
(a) A Participant may withdraw amounts (other than
earnings attributable to Plan Years beginning after December 31, 1988) from
his Basic Contribution Account II, Supplemental Contribution Account II,
Supplemental Employer Contribution Account and Qualified Employer
Contribution Account by submitting a written request to the Committee,
which request shall represent that the withdrawal is made for one or more
of the following purposes:
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<PAGE>
(1) purchase (excluding mortgage payments) of a
principal residence for the Participant;
(2) post-secondary educational tuition expenses and
related educational fees for the next (12) months for the Participant, his
Spouse, his children or his dependents;
(3) medical expenses for medical care described in
Section 213(d) of the Code of a Participant, his Spouse, his children or
his dependents (or amounts necessary to obtain such medical care); or
(4) the need to prevent the eviction of the
Participant from his principal residence or foreclosure on the mortgage of
the Participant's principal resident; or
(5) such other circumstances as may be prescribed by
the Secretary of the Treasury or his delegate.
(b) Such a withdrawal shall be permitted only if the
Committee finds that it is necessary in light of immediate and heavy
financial needs of the Participant. The amount of the withdrawal may not
exceed the amount required to meet the financial need created by the
hardship (including, if elected by the Participant, any amount necessary to
pay any federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution) and not reasonably available
from other resources of the Participant. A Participant's resources shall
include those assets of his Spouse and minor children that are reasonably
available to the Participant. A Participant must certify, on a form
provided by the Committee, that his financial need cannot be relieved:
(1) through reimbursement or compensation by insurance
or otherwise;
(2) by reasonable liquidation of the Participant's
assets to the extent such liquidation would not itself cause an immediate
and heavy financial need;
(3) by cessation of contributions to the Plan; or
(4) by other distributions from the Plan, by other
distributions or loans from plans maintained by any employer or by
borrowing from commercial sources on reasonable commercial terms.
There shall be no limitation on the frequency of permitted withdrawals
under this Section.
(c) Notwithstanding the provisions of Subsections (a) and
(b), upon his attainment of age 59-1/2, a Participant shall be entitled to
withdraw all or any portion of his Basic Contribution Account II,
Supplemental Contribution Account II, Supplemental Employer
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<PAGE>
Contribution Account and Qualified Employer Contribution Account.
9.6 Withdrawal from Employer Contribution Account and PAYSOP
--------------------------------------------------------
Account. A Participant may withdraw from his Employer Contribution Account
-------
all or any portion of such Account (including any portion of such Account
that is invested in the RPR Stock Fund) which have been held in such
Account for at least two (2) full years. A Participant who has completed
at least sixty (60) months of participation in the Plan may also withdraw
that portion of the Employer Contribution Account (including any portion of
such Account that is invested in the RPR Stock Fund) which has been held in
such Account for less than two (2) full years. A Participant may also
withdraw from his PAYSOP Account all or any portion of such Account which
is not invested in the RPR Stock Fund.
9.7 Withdrawals Not Subject to Replacement. A Participant may
--------------------------------------
not replace any portion of his Accounts withdrawn under this Plan.
9.8 Payment of Withdrawals. Withdrawals under this Article
----------------------
shall be paid in cash.
9.9 Valuation for Distribution. For the purposes of paying
--------------------------
the amounts to be distributed to a Participant or to his beneficiaries
under the provisions of this Article, the value of the Fund and the amount
of the Participant's interest therein shall be determined in accordance
with the provisions of Article VII as of the date of the withdrawal.
9.10 Loans. Each Participant who is an Employee of an
-----
Employer and any other Participant who is a party in interest as defined in
ERISA may apply for a loan from the Plan. The Committee shall have the
right to require any applicant for a loan to secure the written consent of
any party for whose benefit there exists a Qualified Domestic Relations
Order in respect to the Participant's interest under the Plan. Requests
for loans may not be made more frequently than once in any twelve-month
period. Loans shall be at least $1,000 in amount and in no event shall the
total loans exceed the lesser of (i) 50% of the vested balance credited to
his Accounts (including his interest in the RPR Stock Fund) or (ii)
$50,000, as such amount is reduced by the excess, if any, of (A) the
highest outstanding balance of all loans during the twelve months prior to
the time the new loan is to be made over (B) the outstanding balance of
loans made to the Participant on the date such new loan is made. Loans
under any other qualified plan sponsored by the Employer and all Affiliated
Companies shall be aggregated with loans under the Plan in determining
whether or not the limitation stated herein has been exceeded.
Applications for a loan must be submitted in writing, in the manner
prescribed by the Committee. All loans shall be subject to the final
approval of the Committee, in its sole discretion, which discretion shall
be exercised as to all Participants on a reasonably equivalent basis. All
loans shall be made upon such terms and conditions as the Committee shall
determine, which shall include provisions for repayment and adequate
security, shall bear interest on the unpaid principal at a reasonable rate
to be determined by the Committee in accordance with generally prevailing
market conditions for similar types of loans and shall otherwise satisfy
all of the applicable requirements of section 72(p) of the Code and any
regulations promulgated thereunder. Unless otherwise specified, no loan
shall have a term in excess of five years (or, in the case of a loan used
to acquire the Participant's
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<PAGE>
principal residence, a term in excess of ten years), and the loan shall be
repaid on a schedule providing for level amortization determined by the
Committee. Each loan shall be considered a separate Investment Medium (to
which the interest payable on the loan shall be allocated), and the
Participant's interest in the Investment Medium or Media is to be
liquidated from each of such Media on a pro rata basis to provide the loan
principal, provided, however, that a Participant's interest in the PAYSOP
Account shall not be liquidated to provide the loan principal. If any loan
to a Participant is unpaid on the date that he or his beneficiary becomes
entitled to any distribution from the Fund, such loan, in all events and
notwithstanding the terms thereof, shall become immediately due and payable
on such date, and the amount thereof, together with any accrued unpaid
interest thereon, shall be deducted from the amount of any distribution to
which the Participant or his beneficiary may become entitled. The
deduction described in the preceding sentence shall not be made if the
Participant or his beneficiary makes arrangements with the Committee to
continue to repay the loan while the Participant's or beneficiary's
interest remains in the Plan; provided, however, that the Plan's right to
make such deduction shall be exercised immediately upon the Participant's
or beneficiary's (i) request to receive payment of his interest hereunder
which would reduce the interest below the outstanding loan balance or (ii)
failure to make any scheduled loan payment when due. The conditions and
terms of all loans shall be applied in a uniform and consistent manner with
respect to all Participants. A loan may be prepaid in full at any time
without penalty.
9.11. Written Instructions. All loans or withdrawal payments to
--------------------
a Participant under the Plan shall be made by the Trustee from the
appropriate Account of the Participant only upon receipt of written
instructions furnished by the Committee setting forth the amount of the
loan or withdrawal payment and the name and address of the recipient. In
making any loan or withdrawal payment under the Plan, the Trustee shall be
fully entitled to rely on the instructions furnished by the Committee and
shall be under no duty to make any inquiry or investigation with respect
thereto.
9.12. Spousal Consent. No withdrawal or loan request shall be
---------------
granted unless the Spouse of the Participant consents to the withdrawal or
loan within the 90-day period prior to the date the withdrawal or loan is
made. The consent shall be in writing on a form provided by the Committee,
shall acknowledge the effect of the withdrawal or loan on the Participant's
benefit under the Plan, shall be witnessed by a notary public, and shall be
irrevocable. Spousal consent may be waived if it is established to the
satisfaction of the Committee that the consent may not be obtained because
there is no Spouse, because the Spouse cannot be located, or because of
other circumstances as may be prescribed by the Committee.
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<PAGE>
ARTICLE X
---------
ADMINISTRATION
--------------
10.1 Committee. The Committee shall be the named fiduciary
---------
which shall control and manage the operation of and administer the Plan.
The Committee members may, but need not be, employees of an Employer. They
shall be entitled to reimbursement of expenses, but those members of the
Committee who are also employees of an Employer shall be entitled to no
compensation for their service on the Committee. Such Committee shall be
responsible for the general administration of the Plan under the policy
guidance of the Company.
10.2 Duties and Powers of Committee. In addition to the duties
------------------------------
and powers described elsewhere hereunder, the Committee shall have the
following specific duties and powers:
(a) to retain such consultants, accountants, attorneys and
other advisors as deemed necessary or desirable, to render statements,
reports, and advice with respect to the Plan and to assist the Committee in
complying with all applicable rules and regulations affecting the Plan; any
consultants, accountants or attorneys may be the same as those retained by
an Employer;
(b) to review the investment performance of the Fund, to
create additional or substitute Investment Media, and to establish a
funding policy consistent with the objectives of the Plan;
(c) to enact uniform and non-discriminatory rules and
regulations necessary to carry out the provisions of the Plan;
(d) to resolve questions or disputes relating to
eligibility for benefits or the amount of benefits under the Plan;
(e) to interpret the provisions of the Plan;
(f) to determine whether any domestic relations order
received by the Plan is a Qualified Domestic Relations Order;
(g) to evaluate administrative procedures; and
(h) to delegate such duties and powers as the Committee
shall determine from time to time to any person or persons.
10.3 Functioning of Committee. The Committee and those persons
------------------------
and entities
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<PAGE>
to whom the Committee has delegated responsibilities shall keep accurate
records and minutes of meetings, interpretations and decisions. The
Committee shall act by majority vote of the members, and such action shall
be evidenced by a written document.
10.4 Construction of the Plan. The Committee shall take such
------------------------
steps as are considered necessary and appropriate to remedy any inequity
that results from incorrect information received or communicated in good
faith or as the consequence of an administrative error. The Committee
shall have the full discretionary power and authority to make factual
determinations, to interpret the Plan, to make benefit eligibility
determinations and to determine all questions arising in the
administration, interpretation and application of the Plan. The Committee
shall correct any defect, reconcile any inconsistency or ambiguity, or
supply any omission with respect to the Plan. All such corrections,
reconciliations, interpretations and completions of Plan provisions shall
be final, binding and conclusive upon all parties, including, without
limitation, the Company, each Employer, the Employees, their families,
dependents and any Alternative Payees.
10.5 Disputes.
--------
(a) In the event that the Committee denies, in whole or
in part, a claim for benefits by a Participant or his beneficiary, the
Committee shall furnish notice of the denial to the claimant, setting
forth:
(1) the specific reasons for the denial;
(2) specific reference to the pertinent Plan
provisions on which the denial is based;
(3) a description of any additional information
necessary for the claimant to perfect the claim and an explanation of why
such information is necessary; and
(4) appropriate information as to the steps to be
taken if the claimant wishes to submit his claim for review.
Such notice shall be forwarded to the claimant within ninety (90)
days of the Committee's receipt of the claim; provided, however, that in
special circumstances the Committee may extend the response period for up
to an additional ninety (90) days, provided that the Committee so notifies
the claimant in writing and specifies the reason or reasons for such
extensions.
(b) Within sixty (60) days of receipt of a notice of
claim denial, a claimant or his duly authorized representative may petition
the Committee in writing for a full and fair review of the denial. The
claimant or his duly authorized representative shall have the opportunity
to review pertinent documents and to submit issues and comments in writing
to the Committee. The Committee shall review the denial and communicate its
decision and the reasons therefor to the claimant in writing within sixty
(60) days of receipt of the petition; provided, however, that
-39-
<PAGE>
the Committee may extend the response period in special circumstances for
up to an additional sixty (60) days. Written notice of the extension shall
be sent to the claimant prior to the commencement of the extension.
10.6 Indemnification. Each member of the Committee and any
---------------
other person who is an employee or director of an Employer or an Affiliated
Company shall be indemnified by the Company against expenses (other than
amounts paid in settlement to which the Company does not consent)
reasonably incurred by him in connection with any action to which he may be
a party by reason of his performance of administrative functions and duties
under the Plan, except in relation to matters as to which he shall be
adjudged in such action to be personally guilty of negligence or willful
misconduct in the performance of his duties. The foregoing right to
indemnification shall be in addition to such other rights as the Committee
member or other person may enjoy as a matter of law or by reason of
insurance coverage of any kind. Rights granted hereunder shall be in
addition to and not in lieu of any rights to indemnification to which the
Committee member or other person may be entitled pursuant to the by-laws of
the Employer and Affiliated Company.
10.7 Reliance on Data and Consents. The Employer, the Trustee,
-----------------------------
the Committee, all fiduciaries with respect to the Plan, and all other
persons or entities associated with the operation of the Plan, the
management of its assets, and the provision of benefits thereunder, may
reasonably rely on the truth, accuracy and completeness of any data
provided by any Participant, Spouse, or beneficiary, including, without
limitation, representations as to age, health and marital status.
Furthermore, the Employer, the Trustee, the Committee, and all fiduciaries
with respect to the Plan may reasonably rely on all consents, elections and
designations filed with the Plan or those associated with the operation of
the Plan and the Fund by any Participant, the Spouse of any Participant,
any beneficiary of any Participant, any Alternate Payee, or the
representatives of such persons without duty to inquire into the
genuineness of any such consent, election or designation. None of the
aforementioned persons or entities associated with the operation of the
Plan, its assets and the benefits provided under the Plan shall have any
duty to inquire into any such data, and all may rely on such data being
current to the date of reference, it being the duty of the Participants,
spouses of Participants, Beneficiaries, and Alternate Payees to advise the
appropriate parties of any change in such data.
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<PAGE>
ARTICLE XI
----------
THE FUND
--------
11.1 Designation of Trustee. The Company, by appropriate
----------------------
resolution of its Board of Directors, shall name and designate a Trustee
and enter into a Trust Agreement with such Trustee. The Company shall have
the power, by appropriate resolution of its Board of Directors, to amend
the Trust Agreement, remove the Trustee, and designate a successor Trustee,
all as provided in the Trust Agreement. All of the assets of the Plan
shall be held in a trust by the Trustee for use in accordance with this
Plan in providing for the benefits hereunder.
11.2 Exclusive Benefit. No part of the corpus or income of the
-----------------
Fund shall be used for or diverted to purposes other than for the exclusive
benefit of Participants and their beneficiaries, except as expressly
provided in this Plan and in the Trust Agreement.
11.3 No Interest in Fund. No person shall have any interest in,
-------------------
or right to, any part of the assets or income of the Fund, except to the
extent expressly provided in this Plan and in the Trust Agreement.
11.4 Trustee. The Trustee shall be a fiduciary with respect to
-------
management and control of Plan assets and shall have exclusive and sole
responsibility for the custody and investment thereof in accordance with
the Trust Agreement.
11.5 Expenses. Unless otherwise paid by the Company, the
--------
expenses of establishing and administering the Plan and Trust, including
any Fund asset charges and reimbursement for the reasonable expenses
incurred by the Trustee and the Committee members, shall be paid from the
Fund.
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<PAGE>
ARTICLE XII
-----------
INVESTMENT BY THE TRUSTEE
-------------------------
12.1 General. The Trustee shall invest all contributions paid
-------
to it and the income thereon in the Investment Media that each Participant
may select in accordance with Section 12.2.
12.2 Investment Media.
----------------
(a) Thirty (30) days, or such other period as set by the
Committee, prior to the Activity Date as of which a Participant shall
commence to make Basic Contributions, he shall select one or more of the
Investment Media in which his contributions thereto shall be invested, and
what percentage thereof, in increments of 1%, shall be invested in each
Investment Media. For purposes of this Section, "Investment Media" shall
include the RPR Stock Fund. A Participant may amend his investment
selections for contributions in increments of 1% or transfer funds between
Investment Media in increments of 1% or in dollar amounts, subject to
reasonable administrative limits as may be established by the Committee,
effective as of any prospective Activity Date, via toll free telephone
communication with the Trustee and without obtaining prior confirmation or
authorization from the Committee as to the investment funds in which
subsequent contributions and current Account balances, in whole or in part,
are to be invested.
(b) Each Participant shall be solely responsible for the
investment direction he gives under the Plan. Neither the Company or its
officials, nor the Committee, the Trustee, or any other fiduciary of the
Plan will have any responsibility or liability for any losses which may
result from a Participant's investment directions. The Plan is intended to
be a plan described in Section 404(c) of ERISA and Title 29 of the Code of
-------
Federal Regulations Section 2550.404c-1, as in effect on January 1, 1994.
-------------------
12.3 Commingled Investment Media. The amounts contributed by
---------------------------
all Participants to each Investment Medium shall be commingled for
investment purposes.
12.4 Trustee May Hold and Distribute Cash. The Trustee may
------------------------------------
hold assets of the Fund and make distributions therefrom in the form of
cash without liability for interest, if for administrative purposes it
becomes necessary or practical to do so.
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ARTICLE XIII
------------
AMENDMENT OR TERMINATION OF THE PLAN
------------------------------------
13.1 Amendment. The Company reserves the right at any time, and
---------
from time to time, by or pursuant to resolution of the Board of Directors,
to alter, amend, and modify, in whole or in part, the provisions of the
Plan and the Trust Agreement; provided, however, that it shall be
impossible, except as provided in Section 5.4, for any part of the corpus
or income of the Fund, at any time, to be used for, or diverted to,
purposes other than the exclusive benefit of the Participants or their
beneficiaries. Any amendment made pursuant to this Section 13.1 shall be
binding upon each Employer, unless otherwise indicated. In addition, the
Committee may adopt such amendments to the Plan as it shall deem necessary
or appropriate to maintain compliance with current law or regulation, to
correct errors or omissions in the Plan document or to facilitate the
administration of the Plan. Any amendment adopted by the Committee shall
not increase the liability of the Company or materially affect the benefits
of any Participant hereunder. The Committee shall report at least annually
to the Board of Directors of the Company all amendments adopted by the
Committee during the Plan Year.
13.2 Termination. The Plan and the Trust Agreement forming part
-----------
of the Plan may be terminated or partially terminated or contributions
completely discontinued by or pursuant to resolution of the Board of
Directors (or with respect to any Employer, by the board of directors of
that Employer with the approval of the Company) at any time. In the event
of a termination, partial termination, or a complete discontinuance of
contributions or in the event an Employer is dissolved, liquidated or
adjudicated a bankrupt, the interest of the affected Participants of such
Employer, their estates and beneficiaries shall be non-forfeitable and
shall be fully vested, and distributions shall be made to them in cash or
property or in any combination of cash or property. When all assets shall
have been paid out by the Trustees, the Fund shall cease.
13.3 Merger. The Plan shall not be merged or consolidated with,
------
nor shall its assets be transferred to, any other plan unless each
Participant would (assuming the Plan then terminated) receive a benefit
after such merger, consolidation or transfer which is of value equal to or
greater than the benefit he would have received from the value of his
Accounts if the Plan had been terminated on the day before such merger,
consolidation or transfer.
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<PAGE>
ARTICLE XIV
-----------
GENERAL PROVISIONS
------------------
14.1 No Employment Rights. Neither the action of the Company in
--------------------
establishing the Plan, nor the action of any Employer in joining the Plan,
nor any provisions of the Plan, nor any action taken by the Committee shall
be construed as giving to any employee of an Employer the right to be
retained in its employ, or any right to payment except to the extent of the
benefits provided in the Plan to be paid from the Fund.
14.2 Source of Payments. All payments payable under the Plan
------------------
shall be paid or provided for solely from the Fund, and the Employers
assume no liability or responsibility therefor.
14.3 Governing Law. All questions pertaining to the validity,
-------------
construction and operation of the Plan shall be determined in accordance
with the laws of the Commonwealth of Pennsylvania except to the extent
superseded by ERISA.
14.4 Spendthrift Clause.
------------------
(a) No benefit payable at any time under this Plan and no
interest or expectancy herein shall be anticipated, assigned, or alienated
by any Participant or beneficiary, or subject to attachment, garnishment,
levy, execution, or other legal or equitable process, except for (1) an
amount necessary to satisfy a Federal tax levy made pursuant to Section
6331 of the Code and (2) any benefit payable pursuant to a domestic
relations order which is determined to be a Qualified Domestic Relations
Order.
(b) Any attempt to alienate or assign a benefit hereunder,
whether currently or hereafter payable, shall be void. No benefit shall in
any manner be liable for or subject to the debts or liability of any
Participant or beneficiary. If any Participant or beneficiary shall attempt
to, or shall, alienate or assign his benefit under the Plan or any part
thereof, or if by reason of his bankruptcy or other event happening at any
time such benefit would devolve upon anyone else or would not be enjoyed by
him, then the Committee may terminate payment of such benefit and hold or
apply it for the benefit of the Participant or beneficiary.
14.5 Incapacity. If the Committee deems any Participant who is
----------
entitled to receive payments hereunder incapable of receiving or disbursing
the same by reason of age, illness, infirmity, or incapacity of any kind,
the Committee may direct the Trustee to apply such payment directly for the
comfort, support and maintenance of such Participant or to pay the same to
any responsible person caring for the Participant as determined by the
Committee to be qualified to receive and disburse such payments for the
Participant's benefit, and the receipt of such person shall be a complete
acquittance for the payment of the benefit. Payments pursuant to this
Section shall be a complete discharge to the extent thereof of any and all
liability of the
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<PAGE>
Employers, the Committee, the Trustee and the Fund.
14.6 Notices. Each Participant, Spouse, beneficiary and
-------
Alternate Payee shall be responsible for furnishing the Committee with the
current and proper address for the mailing of notices, reports and benefit
payments. Any notice required or permitted to be given shall be deemed
given if directed to the person to whom addressed at such address and
mailed by regular United States mail, first-class and prepaid. If any
check mailed to such address is returned as undeliverable to the addressee,
mailing of checks will be suspended until the Participant, Spouse,
beneficiary or Alternate Payee furnishes the proper address. This
provision shall not be construed as requiring the mailing of any notice or
notification if the regulations issued under ERISA deem sufficient notice
to be given by the posting of notice in appropriate places, or by any other
publication device.
14.7 Lost Payees. A benefit shall be deemed forfeited, and used
-----------
to reduce future Employer Contributions made pursuant to Section 5.1 by the
Employer that last employed the Participant, if the Committee is unable to
locate a Participant, a Spouse, a beneficiary or an Alternate Payee to whom
payment is due; provided, however, that such benefit shall be reinstated if
a claim is made by the party to whom it is properly payable.
14.8 Gender and Number. Except where otherwise clearly
-----------------
indicated by context, the masculine shall include the feminine, the
singular shall include the plural, and vice-versa.
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ARTICLE XV
----------
SPECIAL PROVISIONS FOR TOP-HEAVY PLANS
--------------------------------------
15.1 General Rule. Notwithstanding any provision in the Plan to
------------
the contrary, for any Plan Year in which the Plan is determined to be a
Top-Heavy Plan, the provisions of this Article XV shall become effective.
15.2 Determination of Top-Heavy Status. The Plan shall be
---------------------------------
considered a Top-Heavy Plan for the Plan Year, if, as of the last day of
the first Plan Year and thereafter, as of the last day of the preceding
Plan Year (the "Determination Date"):
(a) the value of the sum of all Accounts of Participants
who are Key Employees (as defined below) exceeds 60% of the sum of all
Accounts of all Participants, or
(b) the Plan is part of an Aggregation Group and such
Aggregation Group is determined to be a Top-Heavy Group (as defined in
Section 416(g)(2)(B) of the Code).
In determining the above Top-Heavy ratio, the Account balances of
an Employee (a) who is a Non-Key Employee (defined for purposes of this
Article as an Employee who is not a Key Employee) but who was a Key
Employee in any prior Plan Year, or (b) who has not performed services for
the Employer maintaining the Plan at any time during the five-year period
ending on the applicable Determination Date are disregarded.
A Key Employee is defined as any Employee, former Employee or the
beneficiary of such Employee who, at any time during a Plan Year or the
immediately preceding four (4) Plan Years is: (a) an officer of the
Employer having annual 415 Compensation greater than 50% of the amount in
effect under Section 415(b)(1)(A) of the Code for any Plan Year; (b) one of
the ten (10) Employees who own the largest interests in the Employer; (c) a
5% owner of the Employer; or (d) a 1% owner of the Company having annual
415 Compensation from the Company of more than $150,000.
For purposes of this Section, Aggregation Group means (a) each
plan of the Company or an Affiliated Company in which a Key Employee
participates, including any terminated or frozen plans which are maintained
within the five year period ending on the applicable Determination Date,
and (b) each other plan of the Company or an Affiliated Company which
enables such plan to meet the requirements of Sections 401(a)(4) or 410 of
the Code. The foregoing notwithstanding, the Company may treat any plan
maintained by the Company or an Affiliated Company not required to be
included in the Aggregation Group as being part of such group if such group
would continue to meet the requirements of Sections 401(a)(4) and 410 of
the Code with such plan being taken into account.
15.3 Minimum Contributions. For any Plan year in which the
---------------------
Plan is
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determined to be a Top-Heavy Plan pursuant to Section 15.2, the Employer
Contributions for such Plan Year for each Participant who is a Non-Key
Employee shall not be less than the lesser of:
(a) 3% of the Participant's 415 Compensation for such Plan
Year, or
(b) the percentage at which Employer Contributions, Basic
and Supplemental Contributions are made or are required to be made under
the Plan for the Plan Year for the Key Employee for whom such percentage is
the highest. Notwithstanding the foregoing, if a Participant is also
participating in another defined contribution plan maintained by the
Company, the minimum contribution hereunder may be reduced in accordance
with regulations issued under Section 416(f) of the Code. If a Participant
is also participating in a defined benefit plan maintained by the Company,
"5%" shall be substituted for "3%" in paragraph (a) of this Section.
The Employer Contributions referred to above shall be provided to
each Non-Key Employee who is a Participant and who has not separated from
service at the end of the Plan Year, regardless of such Employee's number
of Hours of Service, Compensation, or whether such Employee had made any
contribution to the Plan.
15.4 Adjustments to Maximum Limits on Benefits and
---------------------------------------------
Contributions. For any Plan Year in which the Plan is determined to be a
Top-Heavy Plan pursuant to Section 15.2, paragraphs (a)(1) and (b)(1) of
Section 6.10 shall be read by substituting the number "1.00" for the number
"1.25", wherever it appears. Notwithstanding the foregoing, no adjustment
shall be made to Section 6.10 if the following requirements are met:
(a) Section 15.3 shall be applied by substituting "4%" for
"3%"; and the annual accrued benefit derived from employer contributions
under the defined benefit plan for each Participant who is a Non-Key
Employee shall not be less than the product of:
(1) 3% of such Participant's average annual 415
Compensation during the period of consecutive years (not exceeding five)
which yields the highest average; and
(2) the Participant's Years of Service (not exceeding
10) during which the Plan is a Top-Heavy Plan; and
(b) the aggregate of the Accounts of Participants who are
Key Employees under the Plan does not exceed 90% of the aggregate of the
Accounts of all Participants; and
(c) the sum of (i) the present value of the cumulative
accrued benefits for Key Employees under all defined benefit plans in the
Aggregation Group, and (ii) the aggregate of the accounts of Key Employees
under all defined contributions plans in the Aggregation Group does not
exceed 90% of such sum determined for all employees; and
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(d) in the case of a Participant also participating in a
defined benefit plan maintained by the Company, all of the requirements of
paragraph (a) shall be met by substituting "7-1/2%" for "3%" in Section
15.3.
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