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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
FISHER SCIENTIFIC INTERNATIONAL INC.
(Name of Issuer)
Common Stock
$.01 PAR VALUE
(Title of Class of Securities)
------------
338032105
(CUSIP Number)
Donaldson, Lufkin & Jenrette, Inc.
(Name of Persons Filing Statement)
John K. Knight, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Tel. No.: 212 450 4000
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
January 21, 1997
(Date of Event which Requires Filing of
this Statement)
------------
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this Schedule
13D, and is filing this statement because of Rule 13d-1(b)(3) or (4), check
the following: [ ]
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SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH REPORTING PERSON
WITH 1,310,201
9 SOLE DISPOSITIVE POWER
825,328
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II-A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
32,868
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners - A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
2,603
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
13,345
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ EAB Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
3,706
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Offshore Partners II, C.V.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands Antilles
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
40,586
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
918,436
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
918,436
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
48,253
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners- A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
17,919
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Associates LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
66,172
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
66,172
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ First ESC, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
1,588
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ ESC II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
155,636
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ LBO Plans Management Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
160,930
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJMB Funding II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
146,533
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Investors, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
1,288,365
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UK Investment Plan 1997 Partners
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
21,836
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UK Investment Plan 1997, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON -0-
WITH
8 SHARED VOTING POWER
1,310,201
9 SOLE DISPOSITIVE POWER
21,836
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 -- See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% -- See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson Lufkin & Jenrette, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 1,310,201
WITH
9 SOLE DISPOSITIVE POWER
1,310,201
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Equitable Companies Incorporated
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
CO, HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA - UAP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Finaxa
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances I.A.R.D. Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
8 SHARED VOTING POWER
See Item 5
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Courtage Assurance Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alpha Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claude Bebear, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrice Garnier, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 338032105 Page of 90 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henri de Clermont - Tonnerre, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,310,201 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer.
The class of equity securities to which this statement relates
is the common stock, $0.01 par value per share (the "Shares"), of Fisher
Scientific International Inc., a Delaware corporation ("Fisher"). The
principal executive offices of Fisher are located at Liberty Lane, Hampton,
N.H. 03842.
Item 2. Identity and Background.
This Schedule 13D is being filed jointly on behalf of the
following persons (collectively, the "Reporting Persons"): (1) DLJ Merchant
Banking Partners II, L.P., a Delaware corporation ("Partners II"); (2) DLJ
Merchant Banking Partners II-A, L.P. a Delaware limited partnership ("Partners
II-A"); (3) DLJ Millennium Partners, L.P., a Delaware limited partnership
("Millennium"); (4) DLJ Millennium Partners-A, L.P., a Delaware limited
partnership ("Millennium-A"); (5) DLJ Offshore Partners II, C.V., a
Netherlands Antilles limited partnership ("Offshore II"), (6) DLJ EAB
Partners, L.P., a Delaware limited partnership ("EAB"); (7) DLJ Merchant
Banking II, LLC, a Delaware limited liability company ("MBII LLC"); (8) DLJ
Merchant Banking II, Inc., a Delaware corporation ("MBII INC"); (9) DLJ
Diversified Partners, L.P., a Delaware limited partnership ("Diversified");
(10) DLJ Diversified Partners-A, L.P., a Delaware limited partnership
("Diversified-A"); (11) DLJ Diversified Associates, L.P., a Delaware limited
partnership ("Diversified Associates"); (12) DLJ Diversified Partners, Inc., a
Delaware corporation ("Diversified Partners"); (13) DLJ First ESC L.P., a
Delaware limited partnership ("ESC"); (14) DLJ ESC II L.P., a Delaware limited
partnership ("ESC II"), (15) DLJ LBO Plans Management Corporation, a Delaware
corporation ("LBO"); (16) DLJ MB Funding II, Inc., a Delaware corporation
("Funding II"); (17) DLJ Capital Investors, Inc., a Delaware corporation
("DLJCI"); (18) UK Investment Plan 1997 Partners, a Delaware general
partnership ("1997 Partners") (19) UK Investment Plan 1997, Inc. ("Plan 1997"
and together with the previously listed entities, the "DLJ Entities"); (19)
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation ("DLJ"); (20) The
Equitable Companies Incorporated, a Delaware corporation ("EQ"); (21) AXA-UAP,
a societe anonyme organized under the laws of France ("AXA"); (22) Finaxa, a
societe anonyme organized under the laws of France; (23) AXA Assurances
I.A.R.D. Mutuelle, a mutual insurance company organized under the laws of
France; (24) AXA Assurances Vie Mutuelle, a mutual insurance company organized
under the laws of France; (25) AXA Courtage Assurance Mutuelle, a mutual
insurance company organized under the laws of France; (26) Alpha Assurances
Vie Mutuelle, a mutual insurance company organized under the laws of France,
and (27) Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre,
trustees (the "AXA Voting Trustees") of a voting trust (the "AXA Voting
Trust") established pursuant to a Voting Trust Agreement by and among AXA and
the AXA Voting Trustees dated as of May 12, 1992, as amended January 22, 1997.
Partners II, Partners II-A, Millennium, Millennium-A, Offshore
II, EAB, Diversified, Diversified-A, Funding II, 1997 Partners, ESC, and ESC
II are collectively referred to as the "DLJ Funds".
Partners II, Partners II-A, Millenium and Millenium-A are
Delaware limited partnerships which make investments for long term
appreciation. MBII LLC is the Associate General Partner of Partners II and
Partners II-A. MBII INC is the Managing General Partner of Partners II and
Partners II-A. MBII LLC and MBII INC make all of the investment decisions on
behalf of Partners II and Partners II-A.
EAB is Delaware limited partnership which makes investments for
long term appreciation. MBII LLC is the Associate General Partner of EAB and
LBO is the Managing General Partner of EAB. MBII LLC and LBO make all of the
investment decisions on behalf of EAB.
Offshore II is a Netherlands Antilles limited partnership which
makes investments for long term appreciation. MBII LLC is the Associate
General Partner of Offshore II. MBII INC is the Advisory General Partner of
Offshore II. MBII LLC and MBII INC make all of the investment decisions on
behalf of Offshore.
MBII LLC is a Delaware limited liability company and is a
registered investment adviser. As the Associate General Partner of Partners
II, Partners II-A, Millennium, Millennium II-A, EAB and Offshore II, MBII LLC,
in conjunction with MBII INC, participates in investment decisions made on
behalf of these entities. MBII INC is the managing member of MBII LLC.
MBII INC is a Delaware corporation and is a registered
investment adviser. As the Managing General Partner of Partners II,
Partners II-A, Millennium and Millennium-A, and the Advisory General Partner
Offshore II, MBII INC is responsible for the day to day management of these
entities and, in conjunction with MBII LLC, participates in investment
decisions made on behalf of these entities. MBII INC is a wholly owned
subsidiary of DLJCI.
Diversified and Diversified-A are Delaware limited partnerships
which make investments for long term appreciation. A portion of Diversified
and Diversified-A's capital commitments are dedicated to making side-by-side
investments with Partners II and Partners II-A, respectively. Diversified
Associates is the Associate General Partner of Diversified and Diversified-
A and Diversified Partners is the Managing General Partner of Diversified
and Diversified-A. Diversified Partners is responsible for the day to day
management of Diversified and Diversified-A.
Diversified Associates is a Delaware limited partnership and a
registered investment adviser. As the Associate General Partner of
Diversified and Diversified-A, Diversified Associates, in conjunction with
Diversified Partners and subject to the terms of the Diversified Agreement,
participates in the management of investments of Diversified. Diversified
Partners is the general partner of Diversified Associates.
Diversified Partners is a Delaware corporation and a registered
investment adviser. As the Managing General Partner of Diversified and
Diversified-A, Diversified Partners is responsible for the day to day
management of Diversified and Diversified-A. In conjunction with Diversified
Associates, Diversified Partners participates in the investment decisions made
on behalf of Diversified and Diversified-A. Diversified Partners is a wholly
owned subsidiary of DLJCI.
ESC and ESC II are Delaware limited partnerships and "employee
securities company" as defined in the Investment Company Act of 1940, as
amended ("ESC"). LBO, as the Managing General Partner of ESC and ESC II,
makes all of the investments decisions on behalf of ESC and ESC II.
LBO is a Delaware corporation and a registered investment
adviser. LBO is a wholly owned subsidiary of DLJCI. As the Managing General
Partner of EAB, ESC and ESC II, LBO is responsible for the day-to-day
management of EAB, ESC and ESC II.
Funding II is a Delaware corporation which makes investments
for long term appreciation generally side-by-side with Partners II. Funding
II is a wholly owned subsidiary of DLJCI.
DLJCI is a Delaware corporation a holding company. DLJCI is a
wholly owned subsidiary of DLJ.
1997 Partners is a Delaware general partnership which makes
investments for long term appreciation generally side-by-side with Partners
II. Plan 1997 and DLJ are each general partners of 1997 Partners.
Plan 1997 is a Delaware corporation. Plan 1997 is a wholly
owned subsidiary of DLJ.
DLJ is a publicly held Delaware corporation. DLJ directly owns
all of the capital stock of DLJCI and Plan 1997. DLJ, acting on its own
behalf or through its subsidiaries, is a registered broker/dealer and
registered investment adviser engaged in investment banking, institutional
trading and research, investment management and financial and correspondent
brokerage services.
EQ is a Delaware corporation and is a holding company. As of
January 29, 1998, EQ owns, directly or indirectly, 76.4% of DLJ.
AXA is a societe anonyme organized under the laws of France and
a holding company for an international group of insurance and related
financial services companies. As of December 8, 1997, approximately 59% of
the outstanding common stock of EQ, was beneficially owned by AXA. For
insurance regulatory purposes, to insure that certain indirect minority
shareholders of AXA will not be able to exercise control over EQ and certain
of its insurance subsidiaries, the voting shares of EQ capital stock
beneficially owned by AXA and its subsidiaries have been deposited into the
AXA Voting Trust. For additional information regarding the AXA Voting Trust,
reference is made to the Schedule 13D filed by AXA with respect to EQ. As of
January 29, 1998, AXA directly owned 0.15% of DLJ.
Finaxa is a societe anonyme organized under the laws of France
and is a holding company. As of March 5, 1997, Finaxa controlled directly and
indirectly approximately 22.4% of the issued ordinary shares (representing
approximately 32.8% of the voting power) of AXA.
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie
Mutuelle, AXA Courtage Assurance Mutuelle, and Alpha Assurances Vie Mutuelle
(collectively, the "Mutuelles AXA") is a mutual insurance company organized
under the laws of France. Each of the Mutuelles AXA is owned by its policy
holders. As of March 5, 1997, the Mutuelles AXA, as a group, controlled
approximately 61.4% of the issued shares (representing approximately 72.0% of
the voting power) of Finaxa. Including the ordinary shares owned by Finaxa,
on March 5, 1997, the Mutuelles AXA directly or indirectly controlled 25.9% of
the issued ordinary shares (representing 37.8% of the voting power) of AXA.
Acting as a group, the Mutuelles AXA control AXA and Finaxa.
Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre,
the AXA Voting Trustees, exercise all voting rights with respect to the shares
of Equitable capital stock beneficially owned by AXA and its subsidiaries that
have been deposited in the AXA Voting Trust. The business address,
citizenship and present principal occupation of each of the AXA Voting
Trustees are set forth on Schedule I attached hereto.
The address of the principal business and office of each of the
DLJ Entities and DLJ is 277 Park Avenue, New York, New York 10172. The
address of the principal business and principal office of Equitable is 1290
Avenue of the Americas, New York, New York 10104.
The address of the principal business and principal office of
each of AXA and the AXA Voting Trustees is 9, Place Vendome, 75001 Paris,
France. The address of Finaxa is 23, avenue Matignon, 75008 Paris, France;
of each of AXA Assurances I.A.R.D. Mutuelle and AXA Assurances Vie
Mutuelle is 21, rue de Chateaudun, 75002 Paris, France; of AXA Courtage
Assurance Mutuelle is 26, rue Louis-le-Grand, 75002 Paris, France; and of
Alpha Assurances Vie Mutuelle is Tour Franklin, 100/101 Terrasse Boieldieu,
Cedex 11, 92042 Paris La Defense, France.
The name, business address, citizenship, present principal
occupation or employment and the name and business address of any corporation
or organization in which each such employment is conducted, of each executive
officer or member, as applicable, of the Board of Directors, Supervisory
Board, or the Conseil d'Administration (French analogue of a Board of
Directors) of Equitable, AXA, Finaxa and the Mutuelles AXA are set forth on
Schedules A through N, respectively, attached hereto.
During the past five (5) years, neither any of the Reporting
Persons nor, to the best knowledge of any of the Reporting Persons, any of the
other persons listed on Schedules A through N attached hereto, has been (i)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to United
States federal or state securities laws or finding any violation with respect
to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The general and limited partners of the DLJ Entities
contributed $58,410,822.75 for 1,210,587 Shares, and received, in
connection with their commitment to purchase cumulative preferred stock of
the Company, 99,614 Warrants to purchase Shares.
Item 4. Purpose of Transaction.
The DLJ Entities entered into the Agreements (as defined in
Item 5 below) to purchase the Shares and Warrants for general investment
purposes. The DLJ Entities retain the right to change their investment
intent.
On August 7, 1997, Fisher and FSI Merger Corp. ("FSI"), a
Delaware corporation that, as of August 4, 1997, was wholly-owned by Thomas H.
Lee Equity Fund III, L.P., a Delaware limited partnership ("Equity Fund III"),
entered into an Agreement and Plan of Merger (as amended and restated on
September 11 and November 14, 1997, and amended on January 16, 1998, the
"Merger Agreement," filed hereto and made a part hereof as Exhibit 6). The
Merger Agreement provides, among other things, for the merger of FSI with and
into Fisher (the "Merger"), with Fisher as the surviving corporation (the
"Surviving Corporation"). From and after the Effective Time (as defined in
Item 5 below), the Surviving Corporation shall possess all the rights,
privileges, powers and franchises and shall be subject to all of the
restrictions, disabilities and duties of Fisher and FSI, all as provided under
Delaware law. The transactions contemplated by the Merger Agreement were
approved by the stockholders of Fisher on January 16, 1998 and were
consummated on January 21, 1998.
Subject to the agreements described herein or attached hereto,
and to market conditions and other factors, the DLJ Entities or other
affiliates of DLJ may acquire or dispose of shares of Fisher from time to time
in future open-market, privately negotiated or other transactions, may enter
into agreements with third parties relating to acquisitions of securities
issued or to be issued by the Surviving Corporation, may enter into agreements
with the management of Fisher relating to acquisitions of shares of the
Surviving Corporation by members of management, issuances of options to
management or their employment by the surviving corporation, or may effect
other similar agreements or transactions.
Except as set forth herein, the Reporting Persons do not have
any plans or proposals which would relate to or result in any of the
transactions described in subparagraphs (a) through (j) of Item 4 of Schedule
13D.
Item 5. Interest in Securities of the Issuer.
(a) and (b)
Pursuant to the terms of the Merger Agreement, on January 21,
1998 (the "Closing Date"), Fisher filed a Certificate of Merger with the
Secretary of the State of Delaware, and the Merger was effective as of the
filing of such certificate (the "Effective Time"). Certain Fisher management
stockholders (the "Management Investors") elected to retain certain Shares as
provided in the Merger Agreement.
In connection therewith, immediately prior to the Effective
Time, FSI entered into an Investors' Subscription Agreement (the "Subscription
Agreement") (attached hereto and made a part hereof as Exhibit 3) with Equity
Fund III, Thomas H. Lee Foreign Fund III, L.P., a Delaware limited partnership
("Foreign Fund III"), THL FSI Equity Investors, L.P., a Delaware limited
partnership ("THL FSI"), THL-CCI Limited Partnership, a Massachusetts limited
partnership ("THL-CCI"), and certain persons affiliated with Thomas H. Lee
Company, a Massachusetts sole proprietorship (the "Additional THL Persons")
(collectively, the "THL Entities"); the DLJ Funds; Chase Equity Associates,
L.P. ("Chase"); ML IBK Positions, Inc., KECALP Inc. and Merrill Lynch KECALP
L.P. 1997 (collectively, "Merrill Lynch" and, together with the DLJ Funds and
Chase, the "Institutional Investors"), dated January 21, 1998, pursuant to
which the THL Entities and the Institutional Investors purchased shares of
stock of FSI on the Terms set forth in the Subscription Agreement. At the
Effective Time, shares of stock of FSI were converted into 6,278,915 shares of
Fisher Common Stock, of which 5,471,857 were of Fisher Common Stock (which is
voting) and 807,058 were of Fisher non-voting Common Stock. Immediately
following the Effective Time, the DLJ Funds' approximate percentage ownership
of the outstanding common stock of the Surviving Corporation (including those
shares which the DLJ Funds have a right to acquire) is 17.9%.
Simultaneously with the execution of the Subscription
Agreement, on January 21, 1998, Fisher entered into a Common Stock Warrant
Acquisition Agreement (the "Warrant Acquisition Agreement") (attached hereto
and made a part hereof as Exhibit 4) with the THL Entities and the
Institutional Investors in connection with such parties' commitment to
purchase cumulative preferred stock of Fisher. Pursuant to the Warrant
Acquisition Agreement, the THL Entities and the Institutional Investors
received warrants to purchase 516,663 Shares in connection with the Merger.
In addition, Fisher, the THL Entities, the Institutional
Investors (and together with the THL Entities, the "Equity Investors"), and
the Management Investors have entered into an Investors' Agreement dated as of
January 21, 1998 (the "Investors' Agreement") (filed hereto and made a part
hereof as Exhibit 5). The Investors' Agreement, together with the
Subscription Agreement and the Warrant Acquisition Agreement, are sometimes
referred to herein as the "Agreements."
Pursuant to the Investors' Agreement, the Board of Directors of
Fisher will comprise at least ten and no more than eleven members, seven of
which will be nominated by Equity Fund III, one of which will be nominated by
Partners II, one of which will be Paul M. Montrone and one of which will be
Paul M. Meister (Montrone and Meister collectively, the "Management
Directors"). Further, at least two of the members shall not be "Affiliates"
or "Associates" of any party to the Investors' Agreement within the meaning of
Rule 12b-2 under the Exchange Act. Each of the parties to the Investors'
Agreement entitled to vote for the election of directors has agreed to vote
its shares of Fisher in favor of the persons so nominated or designated,
provided that none of the parties will be required to vote for another party's
nominee or a Management Director, as it were, if the number of Shares
beneficially held by the person or group making the nomination or by such
Management Director is less than 10% of such person's or group's or such
Management Director's Initial Ownership (defined as the number of shares of
Equity Securities (as defined in the Investors' Agreement) beneficially owned,
including any rights to acquire such shares, by such person or group or the
Management Directors, as of the date of the Investors' Agreement).
Pursuant to the Investors' Agreement, each of the Institutional
Investors and the Management Investors may transfer shares to certain persons
and entities represented as Permitted Transferees (as defined in the
Investors' Agreement) and, otherwise, only as follows: (i) pursuant to the
Tag-Along Rights described below; (ii) pursuant to the Drag-Along Rights
described below; (iii) pursuant to the exercise of the Registration Rights
described below; and (iv) in a transfer of shares of a class of equity
securities made after an initial public offering in compliance with Rule 144
under the Securities Act of 1933, as amended, in an amount not in excess of
(A) the aggregate number of shares of such class transferred by the THL
Entities, multiplied by (B) such Investor's Initial Ownership of such class
divided by the Initial Ownership of Equity Fund III of such class.
In addition, as to any Institutional Investor and its Permitted
Transferees, Shares will be freely transferable (i) at the earlier of (A) the
date on which the ownership of such Institutional Investor and its Permitted
Transferees falls below 25% of its Initial Ownership and (B) seven years after
the Closing Date; provided that no such transfer may be made to any Adverse
Person (defined as any person reasonably determined by the Board of Directors
to be a competitor or potential competitor of Fisher).
In addition, as to any Management Investor and its Permitted
Transferees, shares will be freely transferable (i) to another Management
Investor, (ii) ten years after the Closing Date, or (iii) in a Qualifying
Public Offering (as defined below), provided that no such transfer may be made
to any Adverse Person.
The Investors' Agreement provides that if the THL Entities
propose to sell shares of a class of Fisher equity securities, the other
parties to the Investors' Agreement will have the right to participate in the
sale ("Tag-Along Rights"), provided that no such rights shall apply (i) in
public offerings, (ii) to sales to THL Designated Transferees (as defined in
the Investors' Agreement) or (iii) to sales of up to 5% in the aggregate of
the Initial Ownership (as defined in the Investors' Agreement) by the THL
Entities of such class of equity securities. If Tag-Along Rights apply, the
THL Entities will provide notice to the Institutional and Management Investors
of the terms and conditions of the proposed sale and offer each such
Shareholder the opportunity to participate. If the number of shares that the
THL Entities and the Institutional and Management Investors propose to sell
exceeds the number that can be sold on the terms and conditions proposed by
the buyer, the THL Entities and each other shareholder who has exercised
Tag-Along Rights will be entitled to sell up to his or her proportionate share
of the sale, referred to in the Investors' Agreement as the "Tag-Along
Portion." To the extent any shareholder declines its Tag-Along Portion, the
THL Entities shall be entitled to sell their own shares in lieu of such
shareholder. Equity Fund III may sell, on behalf of the THL Entities and the
Institutional and Management Investors who have exercised Tag-Along Rights,
their shares on substantially the same terms and conditions set forth in the
notice within 120 days of the date all Tag-Along Rights are waived, exercised
or expire.
The Investors' Agreement contemplates that if (i) the THL
Entities propose to sell not less than 50% or more of their Initial Ownership
of Common Stock (as defined in the Investors' Agreement) in a bona fide third
party sale, or (ii) the THL Entities propose a sale in which the Common Stock
to be sold by the parties to the Investors' Agreement constitute more than 50%
of the outstanding shares of Common Stock, then Equity Fund III may, at its
sole discretion, compel all parties to the Investors' Agreement to participate
in the sale with respect to their proportionate share of the amount of Fisher
Common Stock proposed to be sold, referred to in the Investors' Agreement as
the "Drag-Along Portion," for the same consideration and otherwise on the same
terms and conditions as the THL Entities ("Drag-Along Rights"). The
Management Directors have the right to require that all of their shares be
purchased by the buyer or the other parties to the Investors' Agreement, at
Equity Fund III's option, as a condition to consummation of the sale.
Shareholders other than the THL Entities ("Non-THL Shareholders") have the
right to refuse to participate in such a sale if the sale terms contain a
provision which materially and adversely affects their ability to compete in
any line of business or geographic area; should any shareholder refuse, the
THL Entities may cause such shareholder to sell its proportionate share of
equity securities to the THL Entities.
In the event that Fisher shall issue equity securities after
the date of the Investors' Agreement and prior to any registered public
offering of Fisher common stock yielding aggregate gross proceeds of at least
$50,000,000 ("Qualified Public Offering"), the THL Entities and each of the
Management Investors shall be entitled to purchase their pro rata portion of
Initial Ownership of such offering of equity securities ("Preemptive Rights").
In the event that Fisher shall issue equity securities after a Qualified
Public Offering to any third party, including any shareholder, the THL
Entities shall be entitled to purchase the THL Entities' pro rata portion of
the equity securities being offered. In the event the THL Entities propose to
purchase any new equity securities being issued by Fisher (including as
described in the preceding two sentences), prior to a Qualified Public
Offering each Institutional Investor, and following a Qualified Public
Offering any Non-THL Shareholder, shall be entitled to purchase, at the same
price and on the same terms as the THL Entities, each of their proportionate
share of such new securities, referred to in the Investors' Agreement as the
"Preemptive Rights Portion." The THL Entities shall have the right to
purchase, or designate any other Fisher shareholders to purchase, any equity
securities with respect to which other Fisher shareholders have not exercised
their Preemptive Rights.
To the extent that the THL Entities shall acquire any equity
securities from any person other than the parties to the Investors' Agreement,
certain other investors shall have the right to acquire their proportionate
share of such equity securities to be acquired by the THL Entities, referred to
in the Investors' Agreement as the "Third Party Purchase Portion."
Until the earlier of (A) January 21, 2005 or (B) the date on
which at least 40% of the Common Stock on a Fully Diluted basis (as defined in
the Investors' Agreement) is held by persons other than the parties to the
Investors' Agreement, no Institutional or Management Investor may acquire
Fisher equity securities except by exercising its Preemptive Rights or as
otherwise permitted under the Investors' Agreement.
Under the Investors' Agreement, the THL Entities may require
that Fisher register for sale its shares of equity securities, such
registration which shall not be effected more than six times. After Fisher
has effected two such demands for registration by the THL Entities, the
Institutional Investors may require that Fisher register its shares, such
registration which shall not be effected more than once. After the transfer
of shares of common stock exceeding 20% of the pro rata share of common stock
initially held by all of the Equity Investors, the Management Directors may
require that Fisher register their shares, such registration which shall not
be effected more than three times. If Fisher proposes to register equity
securities under the Securities Act, as amended, in connection with a public
offering, it shall offer all shareholders the opportunity to include in such
registration statement such number of shares of common stock as each such
shareholder may request. All such rights of registration ("Registration
Rights") are subject to certain other customary terms and conditions,
including provisions relating to cutbacks, holdbacks and indemnification.
Additionally, the Investors' Agreement provides that the
parties thereto must maintain certain levels of confidentiality and "ethical
walls" with respect to certain Fisher-related information received on a
confidential basis. Fisher, for its part, shall not enter into any agreements
with any shareholders or prospective shareholders to the extent such
agreements would conflict with the Registration Rights or reduce the amount of
Registrable Securities (as defined in the Investors' Agreement), or otherwise
on terms more favorable than in the Investors' Agreement. Also, Fisher shall
take certain actions reasonably requested by certain parties subject to
Regulation Y or Regulation K of the Federal Reserve Board in connection with
the compliance by those parties with such regulations.
Each of the Agreements is filed as an exhibit to this Schedule
13D and is incorporated herein by reference. The foregoing descriptions of
the Agreements are not intended to be complete and are qualified in their
entirety by reference to such exhibits.
By virtue of the Investors' Agreement, the DLJ Entities, the
other Institutional Investors (except for Chase), the THL Entities, and the
Management Investors may be deemed to share voting and dispositive power with
respect to over 5,922,111 (77.4%) of the Outstanding Shares of Fisher. Each of
the Reporting Persons expressly disclaims the existence of such shared power.
By virtue of the Investors' Agreement, the DLJ Entities, the
other Institutional Investors (except for Chase), the THL Entities, and the
Management Investors may constitute a "group" within the meaning of Rule
13d-5(b) under the Exchange Act. As a member of a group, each of the DLJ
Entities may be deemed to beneficially own the Shares beneficially owned by the
members of the group as a whole (collectively, the "Investors' Shares"). Each
of the Reporting Persons expressly disclaims membership in such group, and
disclaims beneficial ownership of those Investors' Shares held by any other
members of such group.
While each of the DLJ Entities may be deemed to beneficially
own the Investors' Shares, each of the DLJ Entities disclaims beneficial
ownership of those Investors' Shares held by (i) any Institutional Investor
other than the DLJ Entities, (ii) any THL Entity, or (iii) any Management
Investor.
As the sole stockholder of DLJCI and UKIP 1997 INC, DLJ may be
deemed, for purposes of Rule 13d-3 under the Act, to beneficially own
indirectly the Investors' Shares that may be deemed to be owned beneficially
by each of DLJCI and UKIP 1997 INC. Because of EQ's ownership interest in
DLJ, EQ may be deemed, for purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the Investors' Shares that may be deemed to be
beneficially owned indirectly by DLJ. Each of DLJ and EQ disclaims
beneficial ownership of the Investors' Shares.
Because of AXA-UAP's ownership interest in EQ, and the AXA
Voting Trustees' power to vote the EQ shares placed in the AXA Voting Trust,
each of AXA-UAP and the AXA Voting Trustees may be deemed, for purposes of
Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares
that EQ may be deemed to beneficially own indirectly. Because of the direct
and indirect ownership interest in AXA-UAP of Finaxa and the Mutuelles AXA,
each of Finaxa and the Mutuelles AXA may be deemed, for purposes of Rule 13d-3
under the Act, to beneficially own indirectly the Investors' Shares that
AXA-UAP may be deemed to beneficially own indirectly. AXA-UAP, Finaxa, the
Mutuelles AXA, and the AXA Voting Trustees expressly disclaim beneficial
ownership of any of the Investors' Shares.
Neither the filing of this Schedule 13D nor any of its contents
shall be deemed to constitute an admission that a Reporting Person is the
beneficial owner of any of the Shares other than those which such Reporting
Person has acquired pursuant to the Agreements.
(c) The responses to Items 3, 4, and 5 of this Schedule 13D are
incorporated herein.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
See responses to Items 4 and 5.
A copy of each of the Investors' Subscription Agreement, the
Common Stock Warrant Acquisition Agreement, and the Investors' Agreement are
attached hereto as Exhibits 3, 4 and 5 and are incorporated herein by
reference. The summaries of the terms of the Investors' Subscription
Agreement, the Investors' Agreement and the Common Stock Warrant Acquisition
Agreement, set forth herein, are qualified in their entirety by reference to
Exhibits 3, 4, and 5 respectively.
Except for the agreements described in the response, to Items 4
and 5, to the best knowledge of the Reporting Persons, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between the
persons enumerated in Item 2, and any other person, with respect to any
securities of Fisher, including, but not limited to, transfer or voting of any
of the securities, finder's fees, joint ventures, loan or option arrangements,
puts or calls, guarantees of profits, division of profits or loss, or the
giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1: Joint filing agreement among the Reporting Persons
Exhibit 2: Powers of Attorney
Exhibit 3: Investors' Subscription Agreement dated as of
January 21, 1998 among FSI Merger Corp. and the
Investors named therein.
Exihbit 4: Common Stock Warrant Acquisition Agreement dated as
of January 21, 1998 among Fisher Scientific
International Inc. and the Investors named
therein.
Exhibit 5: Investors' Agreement dated as of January 21, 1998
among Fisher Scientific International Inc., the
DLJ Funds and certain other persons named
therein.
Exhibit 6: Second Amended and Restated Agreement and Plan of
Merger, dated as of November 14, 1997, by and
between FSI Merger Corp., and Fisher Scientific
International, Inc.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ Merchant Banking Partners II, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: February __, 1998
DLJ Merchant Banking Partners II-A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: February __, 1998
DLJ Millennium Partners, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: February __, 1998
DLJ Millennium Partners -A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: February __, 1998
DLJ EAB Partners, L.P.
By DLJ LBO Plans Management Corporation
as Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ Offshore Partners II, C.V.
By DLJ Merchant Banking II, Inc.,
as Advisory General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ Merchant Banking II, LLC
By DLJ Merchant Banking II, Inc.,
as Managing Member
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ Merchant Banking II, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ Diversified Partners, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: February __, 1998
DLJ Diversified Partners-A, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: February __, 1998
DLJ Diversified Associates, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ Diversified Partners, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ First ESC, L.P.
By DLJ LBO Plans Management Corporation,
as Managing
General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ ESC II L.P.
By DLJ LBO Plans Management Corporation,
as Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ LBO Plans Management Corporation
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJMB Funding II, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
DLJ Capital Investors, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
UK Investment Plan 1997 Partners
By UK Investment Plan 1997, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President, Secretary and
Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: February __, 1998
UK Investment Plan 1997, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President, Secretary and
Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
-----------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and
Controller
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: February __, 1998
AXA-UAP
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting
Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
-----------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
Schedule A
Executive Officers and Directors
of
DLJ Merchant Banking II, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Merchant Banking II, Inc. ("MBII INC") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of MBII
INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to MBII INC and
each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Nicole S. Arnaboldi Managing Director
* Thompson Dean Managing Director
Carlos Garcia Managing Director
* Peter T. Grauer Managing Director
* David L. Jaffe Managing Director
* Lawrence M.v.D. Schloss Managing Director and Chief Operating
Officer
* Karl R. Wyss Managing Director
- ------------
* Director
Schedule B
Executive Officers and Directors
of
DLJ Diversified Partners, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Diversified Partners, Inc. ("DP INC") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of DP
INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to DP INC and
each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Lawrence M.v.D. Schloss Managing Director and Chief Operating
Officer; Managing Director and Chief
Operating Officer, DLJ Merchant Banking
II, Inc.
* Marjorie S. White Secretary and Treasurer; Vice President
and Secretary, Donaldson, Lufkin &
Jenrette, Inc.
- ------------
* Director
Schedule C
Executive Officers and Directors
of
DLJMB Funding, II, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ MB Funding, II, Inc. ("Funding II") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of
Funding II at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
Funding II and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Charles J. Hendrickson Treasurer; Senior Vice President and
Treasurer, Donaldson, Lufkin & Jenrette, Inc.
Marjorie S. White Secretary; Vice President and Secretary,
Donaldson, Lufkin & Jenrette, Inc.
- ------------
* Director
Schedule D
Executive Officers and Directors
of
DLJ LBO Plans Management Corporation
The names of the Directors and the names and titles of the Executive
Officers of DLJ LBO Plans Management Corporation ("LBO") and their business
addresses and principal occupations are set forth below. Each Director's or
Executive Officer's business address is that of LBO at 277 Park Avenue, New
York, New York 10172. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to LBO and each individual is a United
States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Vincent DeGiaimo Vice President; Senior Vice President and
Managing Director, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Vice President and Secretary; Vice President,
Donaldson, Lufkin & Jenrette, Inc.
- ------------
* Director
Schedule E
Executive Officers and Directors
of
DLJ Capital Investors, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business addresses
and principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of DLJCI at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to DLJCI and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman; Chairman and Chief Executive
Officer, Donaldson, Lufkin & Jenrette, Inc.
* Hamilton E. James Chief Executive Officer; Managing Director,
Donaldson, Lufkin & Jenrette, Inc.
* Joe L. Roby Chief Operating Officer; President and Chief
Operating Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Anthony F. Daddino Executive Vice President and Chief Financial
Officer; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Secretary and Treasurer; Vice President and
Secretary, Donaldson, Lufkin & Jenrette, Inc.
- ------------
* Director
Schedule F
Executive Officers and Directors
of
UK Investment Plan 1997, Inc.
The names of the Directors and the names and titles of the Executive
Officers of UK Investment Plan 1997, Inc. ("UKIP 1997 INC") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of UKIP
1997 INC at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
UKIP 1997 INC and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Vice President, Secretary and Treasurer; Vice
President and Secretary, Donaldson, Lufkin &
Jenrette, Inc.
* Stuart S. Flamberg Director of Taxes; Senior Vice President and
Director of Taxes, Donaldson, Lufkin &
Jenrette, Inc.
* Mark A. Competiello Tax Manager; Senior Vice President and Tax
Manager, Donaldson, Lufkin & Jenrette, Inc.
- ------------
* Director
Schedule G
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the Executive
Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of DLJ
at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to DLJ and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman and Chief Executive Officer.
* Joe L. Roby President and Chief Operating Officer
* Claude Bebear (1) Chairman and Chief Executive Officer,
AXA-UAP AXA-UAP
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Executive Vice President Financial Services
AXA-UAP and Life Insurance Activities U.S. & U.K.),
23, avenue Matignon AXA-UAP
75008 Paris, France
* Denis Duverne (1) Senior Vice President - International Life,
AXA-UAP AXA-UAP
23, avenue Matignon
75008 Paris, France
* Louis Harris Chairman and Chief Executive Officer, LH
LH Research Research (research)
152 East 38th Street
New York, New York 10016-2605
Henri G. Hottingeur (2) Chairman and Chief Executive Officer,
* Banque Hottingeur Banque Hottingeur (banking)
38, rue de Provence
75009 Paris, France
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525, Box 36
121 King Street, West
Toronto, Ontario
M5H 3T9 Canada
* Francis Jungers Retired
19880 NW Nestucca Drive
Portland, Oregon 97229
* Joseph J. Melone Chairman of the Board, The Equitable Life
1290 Avenue of the Americas Assurance Society of the United States
New York, New York 10104
* Edward D. Miller President and Chief Executive Officer, The
1290 Avenue of the Americas Equitable Companies Incorporated
New York, New York 10104
* W. J. Sanders, III Chairman and Chief Executive Officer,
Advanced Micro Devices, Inc. Advanced Micro Devices
901 Thompson Place
Sunnyvale, CA 94086
* Stanley B. Tulin Executive Vice President and Chief
Financial Officer, The Equitable
Companies Incorporated
* John C. West Retired
Bothea, Jordan & Griffin
23B Shelter Cove
Hilton Head Island, SC 29928
* Carl B. Menges Vice Chairman of the Board
* Hamilton E. James Managing Director
* Richard S. Pecther Managing Director
* Theodore P. Shen Managing Director
* Anthony F. Daddino Executive Vice President and Chief
Financial Officer
- ------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
Schedule H
Executive Officers and Directors
of
The Equitable Companies Incorporated
The names of the Directors and the names and titles of the Executive
Officers of The Equitable Companies Incorporated ("EQ") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of EQ at
1290 Avenue of the Americas, New York, New York 10104. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
EQ and each individual is a United States citizen.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear (1) Chairman of the Board; Chairman of the
AXA-UAP Executive Board, AXA-UAP
23, avenue Matignon
75008 Paris, France
* John S. Chalsty Chairman and Chief Executive Officer,
Donaldson, Lufkin & Jenrette, Inc. Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, NY 10172
* Francoise Colloc'h (1) Senior Executive Vice President, Group
AXA-UAP Human Resources and Communications,
23, avenue Matignon AXA-UAP
75008 Paris, France
* Henri de Castries (1) Vice Chairman of the Board; Senior
AXA-UAP Executive Vice President, Financial Services
23, avenue Matignon and Life Insurance Activities, U.S. & U.K.),
75008 Paris, France AXA-UAP
* Joseph L. Dionne Chairman and Chief Executive Officer, The
The McGraw-Hill Companies McGraw-Hill Companies (publishing)
1221 Avenue of the Americas
New York, NY 10020
* William T. Esrey Chairman and Chief Executive Officer, Sprint
Sprint Corporation Corporation (telecommunications)
P.O. Box 11315
Kansas City, MO 64112
* Jean-Rene Fourtou (1) Chairman and Chief Executive Officer,
Rhone-Poulenc S.A. Rhone-Poulenc S.A. (manufacturer of
25 quai Paul Doumer chemicals and agricultural products)
92408 Courbevoie Cedex
France
* Jacques Friedmann (1) Chairman of the Supervisory Board,
AXA-UAP AXA-UAP
9, Place Vendome
75001 Paris
France
Robert E. Garber Executive Vice President and General
Counsel; Executive Vice President and
General Counsel, The Equitable Life
Assurance Society of the United States
Jerome S. Golden Executive Vice President
* Donald J. Greene, Esq. Counselor-at-Law, Partner, LeBoeuf, Lamb,
LeBoeuf, Lamb, Greene Greene & MacRae, L.L.P. (law firm)
& MacRae, L.L.P.
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman and Chief Executive Officer,
Fox-Pitt, Kelton Group Fox-Pitt, Kelton Group Limited (finance)
Limited
35 Wilson Street
London, England EC2M 2SJ
* John T. Hartley Retired Chairman and Chief Executive
Harris Corporation Officer, currently Director, Harris
1025 NASA Boulevard Corporation (manufacturer of electronic,
Melbourne, FL 32919 telephone and copying systems)
* John H. F. Haskell, Jr. Director and Managing Director, SBC
Dillon, Read & Co., Inc. Warburg Dillon Read, Inc. (formerly Dillon,
535 Madison Avenue Read & Co., Inc.) (investment banking firm)
New York, NY 10022
Michael Hegarty Senior Executive Vice President and Chief
Operating Officer; President and Chief
Operating Officer, The Equitable Life
Assurance Society of the United States
* Mary R. (Nina) Henderson President, Best Foods Grocery of CPC
CPC Specialty Markets Group International, Inc. (food manufacturer)
700 Sylvan Avenue
Englewood, NJ 07632
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525
121 King Street West
Toronto, Ontario M5H 3T9
Canada
* Joseph J. Melone Chairman of the Executive Committee of the
Board; Chairman of the Executive Committee
of the Board, The Equitable Life Assurance
Society of the United States
* Edward D. Miller President and Chief Executive Officer;
Chairman and Chief Executive Officer, The
Equitable Life Assurance Society of the
United States
Peter D. Noris Executive Vice President and Chief
Investment Officer; Executive Vice President
and Chief Investment Officer, The Equitable
Life Assurance Society of the United States
* Didier Pineau-Valencienne(1) Chairman and Chief Executive Officer,
64/70, avenue Jean Baptiste Clement Schneider S.A. (electric equipment)
92646 Boulogne Cedex, France
* George J. Sella, Jr. Retired Chairman, President and Chief
American Cyanamid Company Executive Officer, American Cyanamid
P.O. Box 397 Company (manufacturer of pharmaceutical
Newton, NJ 07860 products and agricultural products)
Jose Suquet Executive Vice President; Executive Vice
President and Chief Distribution Officer; The
Equitable Life Assurance Society of the
United States
Stanley B. Tulin Executive Vice President and Chief Financial
Officer; Senior Executive Vice President and
Chief Financial Officer, The Equitable Life
Assurance Society of the United States
* Dave H. Williams Chairman and Chief Executive Officer,
Alliance Capital Alliance Capital Management Corp.
Management Corporation (investment adviser)
1345 Avenue of the Americas
New York, NY 10105
- ------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of United Kingdom
(3) Citizen of Canada
</TABLE>
Schedule I
Members of Executive Committee and Supervisory Board
of
AXA-UAP
The names and titles (for the Executive Committee members) of the
Members of the Executive Committee and Supervisory Board of AXA-UAP and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's business is 23, avenue Matignon, 75008 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA-UAP and each individual is a citizen of the
Republic of France.
Members of the Executive Committee
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Claude Bebear Chairman of the Executive Board
Donald Brydon (1) Senior Executive Vice President, AXA Asset
Management Europe
Henri de Castries Senior Executive Vice President, Financial
Services and Insurance Activities (U.S. and
U.K.)
John Chalsty (2) Senior Executive Vice President; Chairman
and Chief Executive Officer, Donaldson,
Lufkin & Jenrette, Inc. (investment banking)
Francoise Colloc'h Senior Executive Vice President, Group
Human Resources and Communications
Jean-Pierre Gerard (3) Senior Executive Vice President; Chief
Executive Officer, Royale Belge (insurance)
Denis Kessler Senior Executive Vice President, Insurance
Activities outside France, U.K. and U.S.
Claas Kleyboldt (4) Senior Executive Vice President; Chairman of
the Executive Board of AXA Colonia
(insurance)
Gerard de La Martiniere Senior Executive Vice President, Chief
Financial Officer
Edward D. Miller (2) Senior Executive Vice President; President
and Chief Executive Officer; Equitable
Companies Incorporated
Jean-Louis Meunier Senior Executive Vice President, Central
Underwriting Officer
Michel Pinault Senior Executive Vice President, Group
Administration
Claude Tendil Senior Executive Vice President, French
Insurance Activities, international risks,
transborder insurance projects and information
systems policy
Geoff Tomlinson (5) Senior Executive Vice President; Managing
Director, National Mutual Holdings
(insurance)
Dave H. Williams (2) Senior Executive Vice President; Chairman
and Chief Executive Officer, Alliance Capital
Management Corporation (investment adviser)
Mark Wood (1) Senior Executive Vice President Managing
Director Sun Life & Provincial
Members of the Supervisory Board
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C>
Jacques Friedmann Chairman of the Supervisory Board
9, Place Vendome
75008 Paris, France
Jean-Louis Beffa Chairman and Chief Executive Officer,
"Les Miroirs" Compagnie de St. Gobain (industry)
Cedex 27
92096 Paris La Defense, France
Antoine Bernheim General Partner, Lazard Freres et Cie
121, Boulevard Haussman (investment banking); Chairman,
75008 Paris, France Assicurazioni Generali S.p.A. (insurance)
Jacques Calvet Former Chairman of the Executive Board,
75, avenue de la Grande Armee Peugeot S.A. (auto manufacturer)
75116 Paris, France
Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
David Dautresme General Partner, Lazard Freres et Cie
121, Boulevard Haussman (investment banking)
75008 Paris, France
Guy Dejouany Honorary Chairman, Compagnie Generaledes
52, rue d'Anjou Eaux (industry and services)
75008 Paris, France
Paul Desmarais (7) Chairman and Chief Executive Officer, Power
751, Square Victoria Corporation (industry and services)
Montreal Quebec
H3Y 3J7 Canada
Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
Michel Francois-Poncet Chairman of the Supervisory Board,
5, rue d'Antin Compagnie Financiere de Paribas (financial
75002 Paris, France services and banking)
Patrice Garnier Director, Finaxa
Latreaumont
76360 Baretin, France
Anthony J. Hamilton (1) General Partner, Fox-Pitt, Kelton Group
35 Wilson Street Limited (finance)
London, England EC2M 2SJ
Henri Hottinguer (6) Vice Chairman, Financiere Hottinguer
38, rue de Provence (banking)
75009 Paris, France
Richard H. Jenrette (2) Senior Advisor, Donaldson, Lufkin &
c/o Donaldson, Lufkin & Jenrette, Inc. Jenrette, Inc. (investment banking)
277 Park Avenue
New York, New York 10172
Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67200 Strasbourg, France
Gerard Mestrallet Chairman of the Executive Board (finance)
1, rue d'Astorg Suez Lyonnaise des Eaux
75008 Paris, France
Friedel Neuber Chairman of the Executive Board,
Girozentrade Herzogstrasse 15 WestDeutsche Landesbank (banking)
D40127 Dusseldorf, Germany
Alfred von Oppenheim (4) Chairman, Bank Oppenheim (banking)
Konsortium Oppenheim
Unter Sachsenrausen 4
50667 Koln, Germany
Michel Pebereau Chairman and Chief Executive Officer,
16, Boulevard des Italiens Banque Nationale de Paris (banking)
75009 Paris, France
Didier Pineau-Valencienne Chairman and Chief Executive Officer,
64-70, avenue Jean Baptiste Clement Schneider S.A. (electric equipment)
92646 Boulogne Cedex, France
Bruno Roger General Partner, Lazard Freres & Cie
121, Boulevard Hausmann (investment banking)
75008 Paris, France
Simone Rozes First Honorary President, Cour de Cassation
2, rue Villaret de Joyeuse (government)
75017 Paris, France
(1) Citizen of the United Kingdom
(2) Citizen of the United States of America
(3) Citizen of Belgium
(4) Citizen of Germany
(5) Citizen of Australia
(6) Citizen of Switzerland
(7) Citizen of Canada
</TABLE>
Schedule J
Executive Officers and
Members of Conseil d'Administration
of
FINAXA
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Finaxa and their business addresses and
principal occupations are set forth below. If no address is given, the
Member's or Executive Officer's business address is that of Finaxa at 23,
avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Finaxa and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman and Chief Executive Officer;
Chairman of the Executive Board, AXA-UAP
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Hottinguer (1) Chairman and Chief Executive Officer,
38, rue de Provence Banque Hottinguer (banking)
75009 Paris, France
* Paul Hottinguer (1) Assistant Chairman and Chief Executive
38, rue de Provence Officer, Banque Hottinguer (banking)
75009 Paris, France
* Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67000 Strasbourg, France
* Andre Levy-Lang Chief Executive Officer, Paribas
3, rue d'Antin (banking)
75002 Paris, France
Christien Manset Vice Chairman of the Supervisory Board,
3, rue d'Antin Banque Paribas
75002 Paris, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
Emilio Ybarra (2) Chairman, Banco Bilbao Vizcaya (banking)
Paseo de la Castillone, 8
28046 Madrid, Spain
- ------------
* Member, Conseil d'Administration
(1) Citizen of Switzerland
(2) Citizen of Spain
</TABLE>
Schedule K
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Assurances I.A.R.D. Mutuelle and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
Jean-Luc Bertozzi Executive Officer
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie
5, rue la Bruyere (industry)
75009 Paris, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S.
75008 Paris, France & U.K.), AXA-UAP
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67000 Strasbourg, France
* Francois Richer Retired
Georges Rousseau Retired
* 2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive
Vice President, French Insurance Activities,
AXA-UAP
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management
75018 Paris, France consulting)
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen, France
- ------------
* Member, Conseil d'Administration
</TABLE>
Schedule L
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances Vie Mutuelle and each individual is a citizen of
the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
Jean-Luc Bertozzi Executive Vice President
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie
11, rue de Rome (industry)
75008 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S.
75008 Paris, France & U.K.), AXA-UAP
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Henri Lachmann Vice Chairman; Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor Facom (office
67000 Strasbourg, France furniture)
* Francois Richer Retired
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive
Tour Assur 38 Vice President, French Insurance Activities,
92083 Paris La Defense, France AXA-UAP
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management
75018 Paris, France consulting)
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen, France
- ------------
* Member, Conseil d'Administration
</TABLE>
Schedule M
Executive Officers and
Members of Conseil d'Administration
of
AXA COURTAGE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Courtage Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Courtage Assurance Mutuelle and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
* Francis Cordier Chairman and Chief Executive Officer, Group
rue Nicephore Niepce BP 232 76304 Demay Lesieur (food industry)
Sotteville Les Rouen, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S.
75008 Paris, France & U.K.), AXA-UAP
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor Facom (office
67000 Strasbourg, France furniture)
* Francis Magnan Chairman and Chief Executive Officer,
50, boulevard des Dames Compagnie Daher (air and sea transportation)
13002 Marseille, France
* Jean de Ribes Chairman and Chief Executive Officer,
38, rue Fortuny Banque Rivaud (banking)
75008 Paris, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Jean-Paul Saillard Manager, AXA-UAP
23, avenue Matignon
75008 Paris, France
* Claude Tendil Chief Executive Officer; Senior Executive
Tour Assur 38 Vice President, French Insurance Activities,
92083 Paris La Defense, France AXA-UAP
- ------------
* Member, Conseil d'Administration
</TABLE>
Schedule N
Executive Officers and
Members of Conseil d'Administration
of
ALPHA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Alpha Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of Alpha Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu,
Cedex 11, 92042 Paris La Defense, France. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Alpha Assurances
Vie Mutuelle and each individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
* Henri Brischoux Corporate Secretary; AXA Assurance France
Tour Assua 38
92083 Paris La Defense, France
* Bernard Cornille Audit Manager, AXA Assurances
21, rue de Chateaudun
75009 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S.
75008 Paris, France & U.K.), AXA-UAP
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Claude Fath Chairman of the Executive Board, UAP Vie
Tour Assur 28F
92083 Paris Las Defense, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor Facom (office
67000 Strasbourg, France furniture)
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive
Tour Assur 38 Vice President, French Insurance Activities,
92083 Paris La Defense, France AXA-UAP
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen,
France
- ------------
* Member, Conseil d'Administration
</TABLE>
EXHIBIT 1
Joint Filing Agreement
----------------------
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, as amended, each of the persons named below agrees to the joint filing
of a Statement on Schedule 13D (including amendments thereto) with respect to
the common stock, par value $0.01, of Fisher Scientific International, Inc., a
Delaware corporation and further agrees that this Joint Filing Agreement be
included as an exhibit to such filings provided that, as contemplated by
Section 13d-1(f)(l)(ii), no person shall be responsible for the completeness
or accuracy of the information concerning the other persons making the filing,
unless such person knows or has reason to believe that such information is
inaccurate. This Joint Filing may be executed in any number of counterparts,
all of which together shall constitute one and the same instrument.
DLJ Merchant Banking Partners II, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Merchant Banking Partners II-A, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Millennium Partners, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Millennium Partners-A, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ EAB Partners, L.P.
by: DLJ LBO Plans Management Corporation
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJ Offshore Partners II, C.V.
by: DLJ Merchant Banking II, Inc.
its: Advisory General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Merchant Banking II, LLC
by: DLJ Merchant Banking II, Inc.
its: Managing Member
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Merchant Banking II, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Partners, L.P.
by: DLJ Diversified Partners, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Partners-A L.P.
by: DLJ Diversified Partners, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Associates, L.P.
by: DLJ Diversified Partners, Inc.
its: General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Partners, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ First ESC, L.P.
by: DLJ LBO Plans Management Corporation
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJ ESC II, L.P.
by: DLJ LBO Plans Management Corporation
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJ LBO Plans Management Corporation
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJMB Funding II, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary
DLJ Capital Investors, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
UK Investment Plan 1997 Partners
by: UK Investment Plan 1997, Inc.
By: /s/ Majorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President, Secretary and Treasurer
UK Investment Plan 1997, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President, Secretary and Treasurer
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
-----------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and Controller
AXA-UAP
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
-----------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
EXHIBIT 2
Power of Attorney
AXA, a societe anonyme organized under the laws of the Republic
of France (the "Corporation"), hereby constitutes and appoints each of Richard
V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting
singly, as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Corporation and in the name, place
and stead of the Corporation, in any and all capacities, to execute for and on
behalf of the Corporation, all Schedules 13D and Schedules 13G as required by
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, the
issuer and relevant stock exchanges (individually, each a "Filing"); provided,
however, that unless specifically instructed in writing by the Corporation,
this Power of Attorney does not authorize any of the above-listed
attorneys-in-fact and agents of the Corporation (or any person substituted or
resubstituted therefor) to execute or file for or on behalf of the Corporation
any Filing with respect to (i) the Common Stock, par value $.01 per share, of
The Equitable Companies Incorporated, a Delaware corporation, or (ii) the
Units Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
AXA
By: /s/ Claude Bebear
--------------------------------
Name: Claude Bebear
Title: Chairman and Chief Executive
Officer
Power of Attorney
Finaxa, a societe anonyme organized under the laws of the
Republic of France (the "Corporation"), hereby constitutes and appoints each
of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Corporation and in the name,
place and stead of the Corporation, in any and all capacities, to execute for
and on behalf of the Corporation, all Schedules 13D and Schedules 13G as
required by the Securities Exchange Act of 1934, as amended, and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing
by the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value
$.01 per share, of The Equitable Companies Incorporated, a Delaware
corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management
L.P., a Delaware limited partnership. The Corporation hereby grants to such
attorneys-in-fact and agents of the Corporation full power and authority to do
and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as the Corporation might or could, and
hereby ratifies and confirms all that said attorneys-in-fact and agents of the
Corporation or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
FINAXA
By: /s/ Claude Bebear
--------------------------------
Name: Claude Bebear
Title: Chairman and Chief Executive
Officer
Power of Attorney
AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of the
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
AXA ASSURANCES I.A.R.D. MUTUELLE
By: /s/ Claude Tendil
--------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
AXA Assurances Vie Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of the
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
AXA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
--------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
Uni Europe Assurance Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of the
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
UNI EUROPE ASSURANCE MUTUELLE
By: /s/ Claude Tendil
--------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
Alpha Assurances Vie Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of The
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
ALPHA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
--------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
Claude Bebear, as a Voting Trustee (the "Trustee"), pursuant to
a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe
anonyme organized under the laws of the Republic of France, and the Voting
Trustees identified therein, hereby constitutes and appoints each of Richard
V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting
singly, as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf
of the Trustee, all Schedules 13D and Schedules 13G as required by the
Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, the
issuer and relevant stock exchanges (individually, each a "Filing"); provided,
however, that unless specifically instructed in writing by the Trustee, this
Power of Attorney does not authorize any of the above-listed attorneys-in-fact
and agents of the Trustee (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Trustee any Filing with
respect to (i) the Common Stock, par value $.01 per share, of The Equitable
Companies Incorporated, a Delaware corporation, or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The Trustee
hereby grants to such attorneys-in-fact and agents of the Trustee full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the Trustee
might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Trustee, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
By: /s/ Claude Bebear
--------------------------------
Name: Claude Bebear
Title: Voting Trustee
Power of Attorney
Henri de Clermont-Tonnerre, as Voting Trustee (the "Trustee"),
pursuant to a Voting Trust Agreement dated as of May 12, 1992, by and among
AXA, a societe anonyme organized under the laws of the Republic of France and
the Voting Trustees identified herein, hereby constitutes and appoints each of
Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Trustee and in the name,
place and stead of the Trustee, in any and all capacities, to execute for and
on behalf of the Trustee, all Schedules 13D and Schedules 13G as required by
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, the
issuer and relevant stock exchanges (individually, each a "Filing"); provided,
however, that unless specifically instructed in writing by the Trustee, this
Power of Attorney does not authorize any of the above-listed attorneys-in-fact
and agents of the Trustee (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Trustee any Filing with
respect to (i) the Common Stock, par value $.01 per share, of The Equitable
Companies Incorporated, a Delaware corporation, or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The Trustee
hereby grants to such attorneys-in-fact and agents of the Trustee full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the Trustee
might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Trustee, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
By: /s/ Henri de Clermont-Tonnerre
--------------------------------
Name: Henri de Clermont-Tonnerre
Title: Voting Trustee
Power of Attorney
Patrice Garnier, as a Voting Trustee (the "Trustee"), pursuant
to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a
societe anonyme organized under the laws of Republic of France, and the Voting
Trustees identified therein, hereby constitutes and appoints each of Richard
V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting
singly, as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf
of the Trustee, all Schedules 13D and Schedules 13G as required by the
Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, the
issuer and relevant stock exchanges (individually, each a "Filing"); provided,
however, that unless specifically instructed in writing by the Trustee, this
Power of Attorney does not authorize any of the above-listed attorneys-in-fact
and agents of the Trustee (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Trustee any Filing with
respect to (i) the Common Stock, par value $.01 per share, of The Equitable
Companies Incorporated, a Delaware corporation or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The Trustee
hereby grants to such attorneys-in-fact and agents of the Trustee full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the Trustee
might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Trustee, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
By: /s/ Patrice Garnier
--------------------------------
Name: Patrice Garnier
Title: Voting Trustee
FSI MERGER CORP.
INVESTORS' SUBSCRIPTION AGREEMENT
This Investors Subscription Agreement (the "Agreement") is entered
into as of the 21st day of January, 1998 by and between FSI MERGER CORP., a
Delaware corporation ("the "Company") and (i) each of the investors listed on
Exhibit A attached hereto (individually, an "Equity Investor" and
collectively, the "Equity Investors") and (ii) those persons listed on Exhibit
B (individually, an "Individual Investor" and with (i) above, "Investors").
WHEREAS, the Company has been established to enable the Investors
to make an investment in Fisher Scientific International Inc. ("Fisher"), a
Delaware corporation, through a recapitalization transaction (the
"Transaction"), pursuant to that certain Second Amended and Restated Agreement
and Plan of Merger, dated as of November 14, 1997, as amended (the "Merger
Agreement"), by and between Fisher and the Company; and
WHEREAS, the Investors wish to purchase from the Company and the
Company wishes to issue and sell to such Investors, shares of the Company's
capital stock, subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties to this Agree-ment, intending to be legally bound,
mutually agree as follows:
ARTICLE 1
Purchase and Sale of Shares
---------------------------
1.1 Sale and Issuance of Shares. Subject to the terms and
conditions of this Agreement, each Investor hereby subscribes for and
agrees to purchase at the Closing (as herein defined), and the Company does
hereby agree to sell to each Investor at the Closing, the aggregate number
of shares of the Company's Common Stock, par value $.01 per share ("Voting
Common Stock") and shares of the Company's Non-Voting Common Stock, par
value $.01 per share ("Non-Voting Common Stock" and together with Voting
Common Stock, "Common Stock") set forth opposite each Investor's name on
Exhibits A and B (collectively, the "Shares") at a purchase price of $48.25
per share of Common Stock for the total consideration set forth opposite
each Investor's name on Exhibits A and B. Each Investor hereby
acknowledges that the number of Shares set forth opposite its name on
Exhibits A and B constitutes the full, entire and correct number of Shares
to be purchased by it pursuant to this Agreement for the amount of
consideration set forth next to the name of such Investor on Exhibits A and
B.
1.2 Delivery of Purchase Price. In consideration of and in
exchange for the Shares to be purchased hereunder, each Investor shall
deliver to the Com pany at the Closing (as hereinafter defined), the
aggregate purchase price set forth opposite such Investors' name on
Exhibits A and B (the "Purchase Price"), payable by wire transfer of
immediately available funds.
1.3 Closing. The closing of the purchase and sale of the Shares
(the "Closing") shall occur immediately prior to the closing of the Merger
(as defined below) and shall occur at the offices of Skadden, Arps, Slate,
Meagher & Flom LLP, New York, New York, or at such other time and place as
the Company and the Investors may agree (the "Closing Date"). In
consideration of the purchase by each Investor of the Shares and the
payment of the Purchase Price therefor, the Company shall deliver to each
Investor at the Closing a certificate or certificates evidencing the number
of Shares purchased by each Investor , as set forth on Exhibits A and B.
1.4. Merger. Immediately following the Closing hereunder, the
Company will be merged (the "Merger") with and into Fisher with Fisher
surviving the Merger (the "Surviving Corporation"). In the Merger, all the
Shares held by the Investors will be converted into shares of capital stock
in the Surviving Corporation on a one-for-one basis, with the result that,
immediately following the Merger, the Investors shall hold (together with
shares purchased directly pursuant to the Merger Agreement) that number of
shares of capital stock in the Surviving Corporation, and such shares of
capital stock after such conversion shall be referred to as "Shares."
ARTICLE II
Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to each Investor that:
1.1 Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted.
2.2 Capitalization. Immediately prior to the Closing, the
authorized capital of the Company consists of (or will consist of at the
Closing) 6,000,000 shares of Voting Common Stock, par value $.01 per share
and 1,000,000 shares of Non-Voting Common Stock, par value $.01 per share.
Immediately prior to the purchase of shares pursuant to this Agreement, 100
shares of the Company's Common Stock were issued and outstanding, and no
such shares were held in treasury. Immediately prior to the Closing, there
were not any existing options, warrants, calls, subscriptions, or other
rights, or other agreements or commitments, other than in connection with
this Agreement, obligating the Company to issue, transfer or sell any
shares of capital stock of the Company. Immediately after the Closing and
prior to the Merger, there will be 5,471,857 shares of the Company's Voting
Common Stock issued and outstanding and 807,058 shares of the Company's
Non-Voting Common Stock issued and outstanding. The authorized capital of
the Surviving Corporation, as of the Merger, will consist of 50,000,000
shares of Common Stock, par value $.01 per share, 15,000,000 shares of
preferred stock, par value $.01 per share of which 500,000 shares are
designated Series A Junior Participating Preferred Stock, par value $.01
per share. As of the close of business on January 20, 1998, 20,356,764
shares of the Surviving Corporation's Common Stock were issued and
outstanding, and no such shares were held in treasury. The Surviving
Corporation has no shares of Preferred Stock issued and outstanding. As of
January 20, 1998, except for (i) 3,555,774 shares reserved for issuance
pursuant to outstanding options and rights granted under the stock plans
and (ii) 500,000 shares of Junior Preferred Stock reserved for issuance
upon exercise of certain rights, there are not now, and at the Effective
Time there will not be, any existing options, warrants, calls,
subscriptions, or other rights, or other agreements or commitments,
obligating the Surviving Corporation to issue, transfer or sell any shares
of capital stock of the Surviving Corporation or any of its subsidiaries.
2.3 Corporate Activity. The Company was created for the sole
purpose of effecting the Merger and has conducted no activity and has incurred
no liability (other than in connection with the Merger and its financing).
2.4 Authorization. All corporate action on the part of the
Company necessary for the authorization, execution, delivery and performance
of this Agreement by the Company and for the authorization, issuance and
delivery of the Shares being sold under this Agreement, has been taken. This
Agreement, when executed and delivered by all parties hereto, shall constitute
the valid and legally binding obligation of the Company and shall be
enforceable against the Company in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors' rights
generally and except to the extent enforceability may be limited by general
equitable principles.
2.5 Validity of Shares. The Shares, when issued, sold and
delivered in accor dance with the terms of this Agreement, shall be duly
and validly issued, fully paid and nonassessable.
2.6 Securities Act. The sale of Shares in accordance with the
terms of this Agreement (assuming the accuracy of the representations and
warranties of the Investors contained in Article III hereof) is exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"1933 Act").
2.7 Reservation of Shares. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Voting
Common Stock or its treasury shares, solely for the purpose of issuance upon
the conversion of shares of Non-Voting Common Stock, such number of shares of
such class as are then issuable upon the conversion of all outstanding shares
of Non-Voting Common Stock which may be converted.
2.8 Non-Contravention. The execution and delivery of this
Agreement by the Company does not, and the consummation by the Company of the
transactions contemplated hereby and the performance by the Company of the
obligations which it is obligated to perform hereunder will not, (a) violate
any provision of the articles of association, by-laws, agreement of limited
partnership or other organizational documents of the Company, (b) violate in
any material respect any material law, regulation, rule, order, judgment or
decree to which the Company is subject, (c) violate in any material respect,
result in the termination or the acceleration of, or conflict with in any
material respect or constitute a material default under, any material
mortgage, indenture, lease, franchise, license, permit, agreement or
instrument (each, a "Contract") to which the Company is a party or by which
any of its assets or properties are bound.
2.9 Consents, Approvals and Notices. The execution and delivery
of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby does not require any (a) material consent,
authorization, order or approval of, filing or registration with, or notice
to, any governmental or regulatory authority, which has not been obtained
previously, or (b) material consent, authorization, approval, waiver, order,
license, certificate or permit or act of or from, or notice to, any party to
any Contract to which the Company is a party or by which any of its assets or
properties are bound, which has not been obtained previously.
2.10 Litigation. There is no action, suit or proceeding pending
or, to the knowledge of the Company, threatened, before any court against the
Company which challenges the validity or the propriety of the transactions
contemplated by this Agreement.
ARTICLE III
Representations, Warranties and
Agreements of the Investors
---------------------------
Each Investor represents and warrants, in each instance as to
itself only and not as to any other Investor, to the Company that:
3.1 Organization; Authority. Each Equity Investor is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization. Each Individual Investor has the legal
capacity to enter into this Agreement. Each Investor has the power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery by each Investor of this
Agreement and the consummation by such Investor of the transactions
contemplated hereby have been duly authorized by all necessary action on
the part of such Investor.
3.2. Enforceability. This Agreement, when executed and delivered
by all parties hereto, will constitute the valid and legally binding
obligation of each Investor, enforceable against each Investor in
accordance with its terms, except to the extent enforceability may be
limited by bankruptcy laws, insolvency laws, reorganization laws,
moratorium laws or other laws affecting creditors' rights generally and
except to the extent enforceability may be limited by general equitable
principles. Each Individual Investor entered into and is bound by this
Agreement in satisfaction of a commitment made by such Individual Investor
to subscribe for the number of Shares set forth in Exhibit B for such
Individual Investor prior to December 18, 1997.
3.3. Non-Contravention. The execution and delivery of this
Agreement by each Investor does not, and the consummation by such Investor
of the transactions contemplated hereby and the performance by such
Investor of the obligations which it is obligated to perform hereunder will
not, (a) violate any provision of the articles of association, by-laws,
agreement of limited partnership or other organizational documents of such
Investor, (b) violate in any material respect any material law, regulation,
rule, order, judgment or decree to which such Investor is subject, (c)
violate in any material respect, result in the termination or the
acceleration of, or conflict with in any material respect or constitute a
material default under, any material Contract to which such Investor is a
party or by which any of its assets or properties are bound or (d) result
in the creation of any lien or other encumbrance on any of the material
assets or properties of such Investor or the loss of any material license
or other material contractual right with respect thereto.
3.4. Consents, Approvals and Notices. The execution and delivery
of this Agreement by each Investor and the consummation by each Investor of
the transactions contemplated hereby does not require any (a) material
consent, authorization, order or approval of, filing or registration with,
or notice to, any governmental or regulatory authority, which has not been
obtained previously, or (b) material consent, authorization, approval,
waiver, order, license, certificate or permit or act of or from, or notice
to, any party to any Contract to which such Investor is a party or by which
any of its assets or properties are bound, which has not been obtained
previously.
3.5. Litigation. There is no action, suit or proceeding pending
or, to the knowledge of any Investor, threatened, before any court against
such Investor which challenges the validity or the propriety of the
transactions contemplated by this Agreement.
3.6 Investment Representations.
(a) This Agreement is made in reliance upon each
Investor's representations to the Company, which by acceptance
hereof each Investor hereby confirms, that: (i) the Shares
will be acquired by such Investor for investment only, for its
own account and not as a nominee or agent and not with a view
to the sale or distribution of any part thereof in violation of
applicable federal and state securities laws; and (ii) such
Investor has no current intention of selling, granting
participation in or otherwise distributing the Shares in
violation of applicable federal and state securities laws. By
executing this Agreement, each Investor further represents that
it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant
participation to such person, or to any third person, with
respect to any of the Shares in violation of applicable federal
and state securities laws.
(b) Each Investor understands that the Shares have not
been registered under the 1933 Act on the basis that the sale
provided for in this Agreement and the issuance of securities
hereunder are exempt from registration under the 1933 Act
pursuant to Section 4(2) thereof and regulations issued
thereunder, and that the Company's reliance on such exemption
is predicated on the representations and warranties of each
Investor set forth herein.
(c) Each Investor represents that it has, either alone or
together with the assistance of a "purchaser representative"
(as that term is defined in Regulation D promulgated under the
1933 Act), such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of its investment in the Company. Each Investor further
represents that it is familiar with the business and financial
condition, properties, operations and prospects of the Company
and that it has had access, during the course of the
transactions contemplated hereby and prior to its purchase of
Shares, to the same kind of information that is specified in
Part I of a registration statement under the 1933 Act, and that
it has had the opportunity to ask questions of, and receive
answers from, the Company and the Surviving Corporation
concerning the terms and conditions of the investment and to
obtain additional information (to the extent the Company
possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to such Investor or to
which such Investor has had access. Each Investor has made,
either alone or together with its advisors, such independent
investigation of the Company and the Surviving Corporation as
each Investor deems to be, or its advisors deem to be,
necessary or advisable in connection with this investment.
Each Investor understands that no federal or state agency has
passed upon this investment or upon the Company or the
Surviving Corporation, nor has any such agency made any finding
or determination as to the fairness of this investment.
(d) Each Investor represents that it will not sell,
transfer or otherwise dispose of the Shares without
registration under the 1933 Act and applicable state securities
laws, or an exemption therefrom. Each Investor understands
that, in the absence of an effective registration statement
covering the Shares or an available exemption from registration
under the 1933 Act and applicable state securities laws, the
Shares must be held indefinitely. In particular, each Investor
acknowledges that it is aware that the Shares may not be sold
pursuant to Rule 144 promulgated under the 1933 Act unless all
of the conditions of such rule are met. Among the current
conditions for use of Rule 144 by certain holders is the
availability to the public of current information about the
Surviving Corporation. Each Investor represents that, in the
absence of an effective registration statement covering the
Shares or an exemption from registration under the 1933 Act, it
will sell, transfer or otherwise dispose of the Shares only in
a manner consistent with its representations set forth herein
and then only in accordance with the Investors' Agreement
referred to in Section 6.1.
(e) Each Investor represents that it (i) is capable of
bearing the economic risk of holding the unregistered Shares
for an indefinite period of time and has adequate means for
providing for its current needs and contingencies, (ii) can
afford to suffer a complete loss of this investment and (iii)
understands all risk factors related to the purchase of the
Shares.
(f) Each Investor understands that the purchase of the
Shares involves a high degree of risk, that there is no
established market for the Shares and that it is not likely
that any public market for the Shares will develop in the near
future.
(g) Each Investor represents that neither it nor anyone
acting on its behalf has paid any commission or other
remuneration to any person in connection with the purchase of
the Shares.
(h) Independent of the additional restrictions on the
transfer of the shares of Common Stock contained in the
Investors' Agreement referred to in Section 6.1, each Investor
agrees that it will not transfer, dispose of or pledge any of
the Shares other than pursuant to an effective registration
statement under the 1933 Act and applicable state securities
laws, unless and until (i) such Investor shall have notified
the Company of the proposed transfer, disposition or pledge and
shall have furnished the Company with a statement of the
circumstances surrounding the proposed transfer, disposition or
pledge and (ii) if reasonably requested by the Company and at
the expense of each Investor or its transferee, such Investor
shall have furnished to the Company an opinion of counsel
reasonably satisfactory (as to counsel, which in the case of
the Equity Investors, may include internal counsel, and as to
substance) to the Company and its counsel that such proposed
transfer, disposition or pledge may be made without
registration of such Shares under the 1933 Act and applicable
state securities laws.
3.7 Legends; Stop Transfer.
(a) Each Investor acknowledges that all certificates
evidencing the Shares shall bear the following legend:
"TRANSFER RESTRICTED
--------------------
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
any state Securities Laws and may not be offered or sold
except in compliance therewith.
The securities represented by this certificate are subject
to the terms and conditions, including certain restrictions
on transfer, of an Investors' Agreement dated as of January
21, 1998, as amended from time to time, and none of such
securities, or any interest therein, shall be transferred,
pledged, encumbered or otherwise disposed of except as
provided in that Agreement. A copy of the Investors'
Agreement is on file with the Secretary of the Company and
will be mailed to any properly interested person without
charge within five (5) days after receipt of a written
request."
(b) The certificates evidencing the Shares shall also bear
any legend required by any applicable state securities law.
(c) In addition, the Company shall make a notation
regarding the restrictions on transfer of the Shares in its
stock books, and the Shares shall be transferred on the books
of the Company only if transferred or sold pursuant to an
effective registration statement under the 1933 Act and
applicable state securities laws covering such Shares or
pursuant to and in compliance with the provisions of Section
3.6(h) hereof. All common stock of the Company and/or the
Surviving Corporation hereafter issued to any Investor shall
bear the same endorsement, shall be subject to all the terms
and conditions of this Agreement, and for all purposes shall be
deemed shares of "Common Stock" hereunder. A copy of this
Agreement, together with any amendments thereto, shall remain
on file with the Secretary of the Company and shall be
available for inspection to any properly interested person
without charge within five days after the Company's receipt of
a written request therefor.
3.8 Definition of Shares. Notwithstanding anything to the
contrary contained herein, each Investor hereby acknowledges and agrees
that each representation and warranty made in this Article III is made with
respect to Shares purchased pursuant to this Agreement and shares of
capital stock in the Surviving Corporation issued in the Merger for the
Shares purchased hereunder.
3.9 Brokers. No broker, investment banker, financial advisor or
other person or entity is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
or on behalf of any Investor or any of its affiliates.
ARTICLE IV
Conditions to Obligations of the Investors at Closing
-----------------------------------------------------
The obligations of each Investor under Article I of this Agreement
are subject to the fulfillment on or before the Closing Date of each of the
following conditions:
4.1 Representations and Warranties. The representations,
warranties and agreements of the Company contained in Article II hereof
shall be true on and as of the Closing Date with the same force and effect
as if they had been made on the Closing Date.
4.2 Performance by the Company. The Company shall have
performed in all material respects all of its obligations and shall have
materially complied with each and all of its covenants required to be
performed or complied with by it on or before the Closing Date.
4.3 Qualifications. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful
issuance and sale of the Shares pursuant to this Agreement shall have been
duly obtained and shall be effective on and as of the Closing Date.
ARTICLE V
Conditions to Obligations of the Company at Closing
---------------------------------------------------
The obligations of the Company under Article I of this Agreement
are subject to the fulfillment on or before the Closing Date of each of the
following conditions:
5.1 Representations. The representations, warranties and
agreements of the Investors contained in Article III hereof shall be true
on and as of the Closing Date with the same force and effect as if they had
been made on the Closing Date.
5.2 Performance. Each Investor shall have performed in all
material respects all of its obligations and shall have materially complied
with each and all of its covenants required to be performed or complied
with by it on or before the Closing Date, including without limitation the
execution and delivery of the agreements and undertakings provided for in
this Agreement.
5.3 Qualifications. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful
issuance and sale of the Shares pursuant to this Agreement shall have been
duly obtained and shall be effective on and as of the Closing Date.
ARTICLE VI
Mutual Conditions Precedent
---------------------------
The obligations of the Company and of each Investor under Article
I of this Agreement are subject to the fulfillment on or before the Closing
Date of the following conditions:
6.1 Investors' Agreement. The Company and each of the Investors
identified on Exhibits A and B shall have executed and delivered the
Investors' Agreement in substantially the form attached as Exhibit C
hereto.
6.2 Merger Conditions. All conditions precedent to the Closing
of the Merger shall have been performed or waived as of the
Closing Date in accordance with the terms of the Merger
Agreement.
6.3 Simultaneous Purchase. Each Investor listed on Exhibits A
and B hereto shall have simultaneously purchased at the Closing the number
of Shares set forth opposite each Investor's name for the consideration
specified.
ARTICLE VII
Use of Proceeds
---------------
The cash proceeds from the sale of the Shares hereunder will be
used to provide the Company with funds for certain of the payments which are
required to be made by the Company in connection with the Transaction.
ARTICLE VIII
Miscellaneous
-------------
8.1 Termination. (a) This Agreement may be terminated (as to
the party electing so to terminate it) at any time prior to the Closing
Date:
(i) by any party hereto if the Merger shall not have been
consummated by the close of business on January 31, 1998;
(ii) by an Investor if any of the conditions specified in
Article IV or VI of this Agreement have not been met or waived by it pursuant
to the terms of this Agreement by the Closing Date, or at such earlier date
that it becomes apparent that any such condition can no longer be satisfied; or
(iii) by the Company if any of the conditions specified in
Article V or VI of this Agreement have not been met or waived by it pursuant
to the terms of this Agreement by the Closing Date or at such earlier date
that it becomes apparent that any such condition can no longer be satisfied.
(b) If the Merger shall not have been consummated by the
close of business on January 22, 1998, the funds delivered by the Investors
shall be delivered to and held by an escrow agent, on terms which are
reasonably acceptable to Investors holding a majority of the funds contributed.
8.2 No Waiver; Modifications in Writing. No failure or
delay on the part of the Company or the Investors in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power
or remedy. The remedies provided for herein are cumulative and are not
exclusive of any remedies that may be available to the Company or each
Investor at law or in equity or otherwise. No waiver of or consent to any
departure by the Company from any provision of this Agreement shall be
effective unless signed in writing by the party entitled to the benefit
thereof, provided that notice of any such waiver shall be given to each
party hereto as set forth below. This Agreement, together with the
Exhibits hereto, sets forth the entire understanding of the parties and
supersedes all prior agreements, arrangements and communications, whether
oral or written, with respect to the subject matter hereof. Except as
otherwise provided herein, no amendment, modification or termination of any
provision of this Agreement shall be effective unless signed in writing by
or on behalf of the Company and each Investor. Any amendment, supplement
or modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by the
Company from the terms of any provision of this Agreement, shall be
effective only in the specific instance and for the specific purpose for
which made or given. Except where notice is specifically required by this
Agreement, no notice to or by or demand to or on the Company in any case
shall entitle or obligate the Company to any other or further notice or
demand in similar or other circumstances.
8.3 Notices. All notices and other communications necessary or
contemplated under this Agreement shall be in writing and shall be
delivered in the manner specified herein. All notices shall be deemed to
have been duly given upon confirmation by telecopy if delivered by telecopy
or by hand, or one day after sending by overnight delivery service, or five
days after sending by certified mail, postage prepaid, return receipt
requested to the respective addresses of the parties set forth below:
(a) for notices and communications to the Company:
Thomas H. Lee Company
75 State Street
Boston, Massachusetts 02109
Fax: (617) 227-3514
Attention: Anthony J. DiNovi
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Fax: (212) 735-2000
Attention: Eric L. Cochran, Esq.
(b) for notices and communications to (i) each Equity
Investor, to its address as set forth under each
Equity Investor's name in Exhibit A, and (ii) each
Individual Investor, to his attention in care of
Thomas H. Lee Company.
By notice complying with the foregoing provisions of this Section 8.3, each
party shall have the right to change the notice address for future notices and
communications to such party.
8.4 Costs, Expenses and Taxes. The Company shall pay the
Company's and each Investor's costs and expenses incurred in connection
with this Agreement and the Investors' Agreement, any amendment or
supplement to or modification of any of the foregoing, and any and all
other documents furnished pursuant hereto or thereto or in connection
herewith or therewith. The Company shall pay any and all stamp, transfer
and other similar taxes payable or determined to be payable in connection
with the execution and delivery of this Agreement or the original issuance
of the Shares but excluding all federal, state and local income or similar
taxes and shall save and hold each Investor harmless from and against any
and all liabilities with respect to or resulting from any delay in paying,
or omission to pay, such taxes. The Company shall bear all expenses of
shipping certificates evidencing the Shares (including, without limitation,
insurance expenses) from the location of the Closing to such other places
within the United States of America as the Investor shall specify.
8.5 Execution of Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original and all of which, taken together, shall constitute but
one and the same Agreement.
8.6 Binding Effect; Assignment. The rights and obligations of
any or all of the Investors under this Agreement may not be assigned to any
other person. Except as expressly provided in this Agreement, this
Agreement shall not be construed so as to confer any right or benefit upon
any person other than the parties to this Agreement, and their respective
successors and assigns. This Agreement shall be binding upon the Company
and each of the Investors, and their respective successors and assigns.
8.7 Governing Law. This Agreement shall be governed by the laws
of the State of Delaware (regardless of the laws that might otherwise
govern under applicable Delaware principles of conflicts of law) as to all
matters, including but not limited to matters of validity, construction,
effect, performance and remedies.
8.8 Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
8.9 Exhibits and Headings. The Exhibits to this Agreement shall
be deemed to be a part of this Agreement. The Article and Section headings
used or contained in this Agreement are for convenience of reference only
and shall not affect the construction of this Agreement.
8.10 Injunctive Relief. Each of the parties to this Agreement
hereby acknowledges that in the event of a breach by any of them of any
material provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. Each of the parties therefore agrees that, in the
event of a breach of any material provision of this Agreement, the
aggrieved party may elect to institute and prosecute proceedings to enforce
specific performance or to enjoin the continuing breach of such provision,
as well as to obtain damages for breach of this Agreement. By seeking or
obtaining any such relief, the aggrieved party will not be precluded from
seeking or obtaining any other relief to which it may be entitled.
8.11 Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement or the Investors'
Agreement, or where any provision hereof or thereof is
validly asserted as a defense, the successful party shall be
entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
8.12 Survival of Agreements, Representations and Warranties. All
agreements, representations and warranties contained herein or made in
writing by or on behalf of the Company or each Investor, as the case may
be, in connection with the transactions contemplated by this Agreement
shall survive the execution and delivery of this Agreement and the sale and
purchase of the Shares of payment therefor.
* * * * * *
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument as of the date first above written.
FSI MERGER CORP.
By: /s/ Anthony J. DiNovi
----------------------------
Name: Anthony J. DiNovi
Title:
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument as of the date first above written.
THL Equity Shareholders:
THOMAS H. LEE EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------------
Name: Anthony J. DiNovi
Title:
THOMAS H. LEE FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------------
Name: Anthony J. DiNovi
Title:
THL FSI EQUITY INVESTORS, L.P.
By: THL Equity Advisors III Limited
Partner
ship, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------------
Name: Anthony J. DiNovi
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp.
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------------
Name: Anthony J. DiNovi
DLJ Entities' Shareholders:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJ DIVERSIFIED PARTNERS - A, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJ MILLENNIUM PARTNERS - A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJMB FUNDING II, INC.
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
UK INVESTMENT PLAN 1997 PARTNERS
By: Donaldson, Lufkin & Jenrette Inc.,
as general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Thompson Dean
---------------------------------
Name: Thompson Dean
Title:
The address for each of the DLJ Entities
listed above is:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, New York 10172
Fax: (212) 892-7272
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
By: /s/ Michael Blott
---------------------------------
Name: Michael Blott
Title: Executive Partner
Address:
380 Madison Avenue
New York, NY 10017
Merrill Lynch Entities:
ML IBK POSITIONS, INC.
By: /s/ James V. Caruso
---------------------------------
Name: James V. Caruso
Title: Vice President
KECALP INC.
By: /s/ Robert Tully
---------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
MERRILL LYNCH KECALP L.P. 1997
By: KECALP Inc., as general partner
By: /s/ Robert Tully
---------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
The address for each of the Merrill Lynch
Entities
listed above is:
255 Liberty Street
New York, NY 10080
Fax: (212) 236-7584
Individual Shareholders:
By: /s/ David V. Harkins
---------------------------------
Name: David V. Harkins
By: /s/ Sheryll J. Harkins
---------------------------------
Name: The 1995 Harkins Gift Trust
By: /s/ Thomas R. Shepherd
---------------------------------
Name: Thomas R. Shepherd
Money Purchase Pension Plan
By: /s/ Scott A. Schoen
---------------------------------
Name: Scott A. Schoen
By: /s/ C. Hunter Boll
---------------------------------
Name: C. Hunter Boll
By: /s/ Scott M. Sperling
---------------------------------
Name: Scott M. Sperling
By: /s/ Sperling Family Limited
Partnership
---------------------------------
Name: Sperling Family Limited
Partnership
By: /s/ Anthony J. DiNovi
---------------------------------
Name: Anthony J. DiNovi
By: /s/ Thomas M. Hagerty
---------------------------------
Name: Thomas M. Hagerty
By: /s/ Warren C. Smith, Jr.
---------------------------------
Name: Warren C. Smith,Jr.
By: /s/ Seth W. Lawry
---------------------------------
Name: Seth W. Lawry
By: /s/ Joseph J. Incandela
---------------------------------
Name: Joseph J. Incandela
By: /s/ Kent R. Weldon
---------------------------------
Name: Kent R. Weldon
By: /s/ Terrence M. Mullen
---------------------------------
Name: Terrence M. Mullen
By: /s/ Todd M. Abbrecht
---------------------------------
Name: Todd M. Abbrecht
By: /s/ Wendy L. Masler
---------------------------------
Name: Wendy L. Masler
By: /s/ THL-CCI Limited Partnership
---------------------------------
Name: THL-CCI Limited Partnership
By: Wendy L. Master
Title: Vice President
By: /s/ Andrew D. Flaster
---------------------------------
Name: Andrew D. Flaster
By: /s/ Kristina A. Watts
---------------------------------
Name: First Trust Co. FBO
Kristina A. Watts
By: /s/ Charles Robins
---------------------------------
Name: Charles Robins
By: /s/ James Westra
---------------------------------
Name: James Westra
By: /s/ Charles A. Brizius
---------------------------------
Name: Charles A. Brizius
Schedule I
Certain Named Individual Investors
- ----------------------------------
David V. Harkins
The 1995 Harkins Gift Trust
Thomas R. Shepherd Money Purchase Pension Plan (Keogh)
Scott A. Schoen
C. Hunter Boll
Scott M. Sperling
Sperling Family Limited Partnership
Anthony J. DiNovi
Thomas M. Hagerty
Warren C. Smith, Jr.
Seth W. Lawry
Joseph J. Incandela
Kent R. Weldon
Terrence M. Mullen
Todd M. Abbrecht
Wendy L. Masler
Andrew D. Flaster
First Trust Co. FBO Kristina A. Watts
Charles W. Robins
James Westra
Charles A. Brizius
EXHIBIT A -- INVESTORS STOCK SUBSCRIPTION AGREEMENT
Number of Shares Purchased By Each Equity Investor
--------------------------------------------------
<TABLE>
<CAPTION>
Stockholder Number of Shares Number of Shares
----------- of Voting of Non-Voting
Common Stock Common Stock
---------------- ----------------
<S> <C> <C>
Thomas H. Lee Equity Fund III, L.P. 2,409,525 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
Thomas H. Lee Foreign Fund III, L.P. 149,094 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
THL FSI Equity Investors, L.P. 1,210,587 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
THL-CCI Limited Partnership 148,392 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
DLJ Merchant Banking Partners II, L.P. 762,579 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Merchant Banking Partners II-A, L.P. 30,369 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Offshore Partners II, C.V. 37,500 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Diversified Partners, L.P. 44,584 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Diversified Partners - A, L.P. 16,557 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Millennium Partners, L.P. 12,330 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Millennium Partners - A, L.P. 2,405 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJMB Funding II, Inc. 135,393 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
UK Investment Plan 1997 Partners 20,176 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ EAB Partners, L.P. 3,424 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ ESC II, L.P. 143,803 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ First ESC, L.P. 1,467 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Chase Equity Associates, L.P. 0 807,058
270 Park Avenue
New York, NY 10172
Merrill Lynch KECALP L.P. 1997 194,674 0
c/o KECALP Inc.
225 Liberty Street
New York, NY 10080
KECALP Inc. 37,081 0
225 Liberty Street
New York, NY 10080
ML IBK Positions, Inc. 10,363 0
Joseph S. Valenti
c/o ML IBK Positions, Inc.
225 Liberty Street
New York, NY 10080-6114
========= =======
TOTAL 5,370,303 807,058
</TABLE>
EXHIBIT B -- INVESTORS STOCK SUBSCRIPTION AGREEMENT
Stockholder Number
----------- of Shares
of Voting
Common Stock
------------
David V. Harkins 17,996
The 1995 Harkins Gift Trust 2,000
Thomas R. Shepherd Money Purchase Pension Plan (Keogh) 6,249
Scott A. Schoen 11,997
C. Hunter Boll 11,997
Scott M. Sperling 5,999
Sperling Family Limited Partnership 3,999
Anthony J. DiNovi 9,998
Thomas M. Hagerty 9,998
Warren C. Smith, Jr. 9,998
Seth W. Lawry 2,999
Joseph J. Incandela 2,499
Kent R. Weldon 1,500
Terrence M. Mullen 750
Todd M. Abbrecht 750
Wendy L. Masler 415
Andrew D. Flaster 415
First Trust Co. FBO Kristina A. Watts 415
Charles W. Robins 415
James Westra 415
Charles A. Brizius 750
=======
TOTAL 101,554
-------
EXHIBIT C
[INVESTORS' AGREEMENT]
FISHER SCIENTIFIC INTERNATIONAL INC.
COMMON STOCK WARRANT ACQUISITION AGREEMENT
Dated as of January 21, 1998
TABLE OF CONTENTS
Page
----
PARTIES............................................................... 4
1. DEFINITIONS
2. ORIGINAL ISSUE OF WARRANTS
2.1. Form of Warrant Certificates................................... 2
2.2. Execution and Delivery of Warrant Certificates................. 2
3. EXERCISE PRICE; EXERCISE OF WARRANTS; COMPLIANCE WITH THE
SECURITIES ACT
3.1. Exercise Price................................................. 2
3.2. Exercise of Warrants........................................... 3
3.3. Expiration of Warrants......................................... 3
3.4. Method of Exercise............................................. 3
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTORS
4.1 Organization, Authority........................................ 4
4.2 Enforceability................................................. 4
4.3 Non-Contravention.............................................. 4
4.4 Consents, Approvals and Notices................................ 5
4.5 Litigation..................................................... 5
4.6 Investment Representations..................................... 5
4.7 Brokers........................................................ 8
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.1 Organization and Standing...................................... 8
5.2 Capitalization................................................. 8
5.3 Authorization.................................................. 8
5.4 Securities Act................................................. 9
5.5 Non-Contravention.............................................. 9
5.6 Consents, Approvals and Notices................................ 9
5.7 Litigation..................................................... 9
6. RIGHTS OF HOLDERS
7. ADJUSTMENTS
7.1. Stock Dividend and Distributions; Stock Splits; Reverse
Stock Splits; Reclassifications................................ 9
7.2. Other Dilutive Events.......................................... 10
7.3. Notice of Adjustment........................................... 10
7.4. Statement on Warrants.......................................... 10
7.5. Fractional Interest............................................ 10
8. WARRANT TRANSFER BOOKS
9. WARRANT HOLDERS
9.1. No Voting Rights............................................... 11
9.2. Right of Action................................................ 11
10. COVENANTS
10.1. Reservation of Shares.......................................... 12
10.2. Determinations by Board of Directors........................... 12
11. MISCELLANEOUS
11.1. Payment of Taxes............................................... 12
11.2. Surrender of Certificates...................................... 12
11.3. Mutilated, Destroyed, Lost and Stolen Warrant Certificates..... 12
11.4 Notices........................................................ 13
11.5. Applicable Law................................................. 13
11.6. Persons Benefitting............................................ 13
11.7. Counterparts................................................... 13
11.8. Amendments..................................................... 14
11.9. Headings....................................................... 14
SIGNATURES......................................................16
EXHIBIT A Institutional Investors' Schedule of Warrants to be
Acquired
EXHIBIT B Individual Investors' Schedule of Warrants to be
Acquired
EXHIBIT C Form of Voting Warrant Certificate
EXHIBIT D Form of Non-Voting Warrant Certificate
COMMON STOCK WARRANT ACQUISITION AGREEMENT
AGREEMENT dated as of January 21, 1998 between Fisher
Scientific International Inc., a Delaware corporation (the "Company"), and (i)
each of the investors listed on Exhibit A attached hereto (individually, an
"Institutional Investor" and collectively, "Institutional Investors") and (ii)
those persons listed on Exhibit B (each, an "Individual Investor" and with (i)
above, "Investors").
In connection with the commitment by the Investors to purchase
cumulative preferred stock of the Company (the "Preferred Stock"), prior to
the execution of the Second Amended and Restated Agreement and Plan of Merger,
dated November 14, 1997, as amended, between FSI Merger Corp. ("FSI") and the
Company (the "Merger Agreement") pursuant to which FSI will be merged with and
into the Company (the "Merger"), the Company has agreed to issue to the
Investors warrant certificates evidencing 516,663 warrants (the "Warrants") to
purchase the number of shares of the voting common stock, par value $0.01 per
share ("Voting Common Stock") and non-voting common stock, par value $.01 per
share ("Non-Voting Common Stock" and, together with the Voting Common Stock,
"Common Stock"), of the Company set forth opposite each Investor's name on
Exhibits A and B (the "Shares"). The certificates evidencing Warrants to
purchase Voting Common Stock ("Voting Common Stock Certificates") and
certificates evidencing Warrants to purchase Non-Voting Common Stock
("Non-Voting Common Stock Certificates" and, collectively with Voting Common
Stock Certificates, "Warrant Certificates") are attached hereto as Exhibits C
and D.
In consideration of the foregoing, or the purpose of defining
the terms and provisions of the Warrants and the respective rights and
obligations thereunder of the Company and the record holders of the Warrants,
the Company and each Investor hereby agrees as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have
the following meanings:
Company: the meaning set forth in the preamble to this
Agreement and its successors and assigns.
Exercise Price: the meaning set forth in Section 3.1.
Expiration Date: the tenth anniversary of this Agreement.
Holders: from time to time, the holders of the Warrants
and, unless otherwise provided or indicated herein, the holders of the
Underlying Shares.
Investors: the meaning set forth in the preamble to this
Agreement.
Investors' Agreement: the Investors' Agreement, dated as of
even date herewith, by and among the Company, the Investors and certain other
parties named therein.
Person: any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
Securities Act: the Securities Act of 1933, as amended.
Shares: the meaning set forth in Article I of the
Investors' Agreement.
Underlying Shares: the shares of Common Stock issuable or
issued upon the exercise of the Warrants.
Warrant Certificates: the meaning set forth in the preamble
to this Agreement.
Warrants: the meaning set forth in the preamble to this
Agreement.
2. ORIGINAL ISSUE OF WARRANTS.
2.1. Form of Warrant Certificates. The Warrant
Certificates shall be in registered form only, and shall be dated the date on
which executed by the Company and may have such legends and endorsements
typed, stamped, printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation pursuant thereto or with any rule or regulation of any securities
exchange on which the Warrants may be listed, or to conform to usage.
2.2. Execution and Delivery of Warrant Certificates.
Warrant Certificates evidencing Warrants to purchase a number of duly
authorized, validly issued, fully paid and nonassessable Shares shall be
executed, on the date of this Agreement, by the Company and delivered to and
issued in the name of each Investor. The Warrant Certificates shall be
executed on behalf of the Company by its President or by any of its Vice
Presidents, either manually or by facsimile signature printed thereon. In
case any officer of the Company whose signature shall have been placed upon
any of the Warrant Certificates shall cease to be such officer of the Company
before issue and delivery thereof, such Warrant Certificates may,
nevertheless, be issued and delivered with the same force and effect as though
such person had not ceased to be such officer of the Company.
3. EXERCISE PRICE; EXERCISE OF WARRANTS; COMPLIANCE WITH THE
SECURITIES ACT.
3.1. Exercise Price. Each Warrant Certificate shall
entitle the Holder thereof, subject to the provisions of this Agreement, to
receive one share of either Voting Common Stock or Non-Voting Common Stock for
each Warrant represented thereby at an exercise price (the "Exercise Price")
of $48.25 per share, subject to adjustment as herein provided.
3.2. Exercise of Warrants. The Warrants shall be
exercisable in whole or in part on or prior to the Expiration Date.
3.3. Expiration of Warrants. The Warrants shall terminate
and become void at the close of business on the Expiration Date.
3.4. Method of Exercise.
(a) In order to exercise a Warrant the Holder thereof must
surrender the Warrant Certificate evidencing such Warrant to the Company at
its principal office, together with the Exercise Subscription Form on the
reverse of or attached to the Warrant Certificate duly executed, accompanied
by payment, in cash or by certified or by official bank check payable to the
order of the Company, in the amount equal to the Exercise Price multiplied by
the number of Warrants being exercised. As an alternative to the payment of
the aggregate Exercise Price in the manner set forth in Section 3.4, the
Holder may (i) deliver as payment, in whole or part, of the aggregate Exercise
Price, Common Stock to the Company, in which case an amount equal to the
aggregate "fair market value" on the date of exercise of the Common Stock
delivered shall be applied towards the payment of the aggregate Exercise Price
and/or (ii) with the approval of the Board of Directors of the Company,
instruct the Company, by written notice accompanying the surrender of the
Warrant and the Exercise Subscription Form, to apply to the payment of all or
a portion of the aggregate Exercise Price such number of shares of Common
Stock otherwise issuable to such Holder upon such exercise as shall be
specified in such notice, in which case an amount equal to the aggregate "fair
market value" of the specified number of shares on the date of exercise shall
be deemed to have been paid to the Company and the number of shares issuable
upon such exercise shall be reduced by such specified number. If the
aggregate Exercise Price exceeds the aggregate fair market value of the Common
Stock delivered or applied pursuant to (i) and/or (ii) above, the Holder shall
pay to the Company, in the manner set forth in Section 3.4, an amount equal to
such excess. Notwithstanding anything to the contrary in this Section 3.4, if
the aggregate fair market value of the Common Stock delivered or applied
pursuant to (i) and/or (ii) above exceeds the aggregate Exercise Price, in no
event shall the Holder be entitled to receive any amounts from the Company.
The "fair market value" means, with respect to Common Stock, the fair market
value of such Common Stock determined by such methods or procedures as shall
be established from time to time by the Company. Unless otherwise determined
by the Board in good faith, the per share fair market value of Common Stock as
of a particular date shall mean, if public shareholders hold, as of the last
day of the prior fiscal quarter, shares of Common Stock worth $100,000,000 or
more (as determined by the Company), (i) the closing sales price per share of
Common Stock on the national securities exchange on which the Common Stock is
principally traded, for the last preceding date on which there was a sale of
such Common Stock on such exchange, or (ii) if the shares of Common Stock are
then traded in an over-the-counter market, the average of the closing bid and
asked prices for the shares of Stock in such over-the-counter market for the
last preceding date on which there was a sale of such Stock in such market, or
if public shareholders do not hold, as of the last day of the prior fiscal
quarter, shares of Common Stock worth more than $100,000,000 or if the shares
of Common Stock are not then listed on a national securities exchange or
traded in an over-the-counter market, such value as the Company, in its sole
discretion, shall determine in good faith.
(b) If fewer than all the Warrants represented by a
Warrant Certificate are surrendered for exercise, such Warrant Certificate
shall be surrendered and a new Warrant Certificate of the same tenor and for
the number of Warrants that were not surrendered shall be executed by the
Company. The new Warrant Certificate shall be registered in such name or
names as may be directed in writing by the Holder and delivered to the Person
or Persons entitled to receive the same.
(c) Upon exercise of a Warrant in conformity with the
foregoing provisions, the Company shall issue or cause to be issued in the
name of and delivered to the Holder of such Warrant or, subject to Section
11.1, as such Holder (upon payment by such Holder of any applicable transfer
taxes) may direct, a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable Shares to which such
Holder shall be entitled upon such exercise together with an amount in cash in
lieu of any fraction of a share as provided in Section 7.5.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTORS.
Each Investor represents and warrants, in each instance as
to itself only and not as to any other Investor, to the Company that:
4.1 Organization, Authority. Each Institutional Investor
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization. Each Individual Investor has the legal capacity
to enter into this Agreement. Each Investor has the power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery by each Investor of this Agreement and the
consummation by such Investor of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of such Investor.
4.2 Enforceability. This Agreement, when executed and
delivered by all parties hereto, will constitute the valid and legally binding
obligation of each Investor, enforceable against each Investor in accordance
with its terms, except to the extent enforceability may be limited by
bankruptcy laws, insolvency laws, reorganization laws, moratorium laws or
other laws affecting creditors' rights generally and except to the extent
enforceability may be limited by general equitable principles. Each Investor
entered into and is bound by this Agreement in satisfaction of a commitment
made by such Investor to purchase Preferred Stock.
4.3 Non-Contravention. The execution and delivery of this
Agreement by each Investor does not, and the consummation by such Investor of
the transactions contemplated hereby and the performance by such Investor of
the obligations which it is obligated to perform hereunder will not, (a)
violate any provision of the articles of association, by-laws, agreement of
limited partnership or other organizational documents of such Investor, (b)
violate in any material respect any material law, regulation, rule, order,
judgment or decree to which such Investor is subject, (c) violate in any
material respect, result in the termination or the acceleration of, or
conflict with in any material respect or constitute a material default under,
any material mortgage, indenture, lease, franchise, license, permit, agreement
or instrument (each, a "Contract") to which such Investor is a party or by
which any of its assets or properties are bound or (d) result in the creation
of any lien or other encumbrance on any of the material assets or properties
of such Investor or the loss of any material license or other material
contractual right with respect thereto.
4.4 Consents, Approvals and Notices. The execution and
delivery of this Agreement by each Investor and the consummation by each
Investor of the transactions contemplated hereby does not require any (a)
material consent, authorization, order or approval of, filing or
registration with, or notice to, any governmental or regulatory authority,
which has not otherwise been obtained or (b) material consent,
authorization, approval, waiver, order, license, certificate or permit or
act of or from, or notice to, any party to any Contract to which such
Investor is a party or by which any of its assets or properties are bound,
which has not been otherwise obtained.
4.5 Litigation. There is no action, suit or proceeding
pending or, to the knowledge of any Investor, threatened, before any court
against such Investor which challenges the validity or the propriety of the
transactions contemplated by this Agreement.
4.6 Investment Representations.
(a) This Agreement is made in reliance upon each
Investor's representations to the Company, which by acceptance
hereof each Investor hereby confirms, that: (i) the Warrants and the
Underlying Shares will be acquired by such Investor for investment
only, for its own account and not as a nominee or agent and not with
a view to the sale or distribution of any part thereof in violation
of applicable federal and state securities laws; and (ii) such
Investor has no current intention of selling, granting participation
in or otherwise distributing the Warrants or Underlying Securities
in violation of applicable federal and state securities laws. By
executing this Agreement, each Investor further represents that it
does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participation to such
person, or to any third person, with respect to any of the Warrants
or Underlying Shares in violation of applicable federal and state
securities laws.
(b) Each Investor understands that the Warrants and
Underlying Shares have not been registered under the Securities Act
on the basis that the sale provided for in this Agreement and the
issuance of securities hereunder are exempt from registration under
the Securities Act pursuant to Section 4(2) thereof and regulations
issued thereunder, and that the Company's reliance on such exemption
is predicated on the representations and warranties of each Investor
set forth herein.
(c) Each Investor represents that it has, either
alone or together with the assistance of a "purchaser
representative" (as that term is defined in Regulation D promulgated
under the Securities Act), such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Company. Each Investor
further represents that it is familiar with the business and
financial condition, properties, operations and prospects of the
Company and that it has had access, during the course of the
transactions contemplated hereby and prior to its acquisition of
Warrants or purchase of Underlying Shares, to the same kind of
information that is specified in Part I of a registration statement
under the Securities Act, and that it has had the opportunity to ask
questions of, and receive answers from, the Company concerning the
terms and conditions of the investment and to obtain additional
information (to the extent the Company possessed such information or
could acquire it without unreasonable effort or expense) necessary
to verify the accuracy of any information furnished to such Investor
or to which such Investor has had access. Each Investor has made,
either alone or together with its advisors, such independent
investigation of the Company as each Investor deems to be, or its
advisors deem to be, necessary or advisable in connection with this
investment. Each Investor understands that no federal or state
agency has passed upon this investment or upon the Company, nor has
any such agency made any finding or determination as to the fairness
of this investment.
(d) Each Investor represents that it will not sell,
transfer or otherwise dispose of the Warrants or the Underlying
Shares without registration under the Securities Act and applicable
state securities laws, or an exemption therefrom. Each Investor
understands that, in the absence of an effective registration
statement covering the Warrants or the Underlying Shares or an
available exemption from registration under the Securities Act and
applicable state securities laws, the Warrants or Underlying Shares
must be held indefinitely. In particular, each Investor
acknowledges that it is aware that the Warrants and Underlying
Shares may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of such rule are met.
Among the current conditions for use of Rule 144 by certain holders
is the availability to the public of current information about the
Company. Each Investor represents that, in the absence of an
effective registration statement covering the Warrants or Underlying
Shares or an exemption from the Securities Act, it will sell,
transfer or otherwise dispose of the Warrants and Underlying Shares
only in a manner consistent with its representations set forth
herein and then only in accordance with the Investors' Agreement
referred to in Section 1.
(e) Each Investor represents that it (i) is capable
of bearing the economic risk of holding the unregistered Warrants or
Underlying Shares for an indefinite period of time and has adequate
means for providing for its current needs and contingencies, (ii)
can afford to suffer a complete loss of this investment and (iii)
understands all risk factors related to the Warrants or Underlying
Shares.
(f) Each Investor understands that the Warrants and
the Underlying Shares involves a high degree of risk, that there is
no established market for the Warrants or Underlying Shares and that
it is not likely that any public market for the Warrants will
develop in the near future.
(g) Each Investor represents that neither it nor
anyone acting on its behalf has paid any commission or other
remuneration to any person in connection with the Warrants and
Underlying Shares.
(h) Independent of the additional restrictions on
the transfer of the shares of Common Stock contained in the
Investors' Agreement referred to in Section 1, each Investor agrees
that it will not transfer, dispose of or pledge any of the Warrants
or Underlying Shares other than pursuant to an effective
registration statement under the Securities Act and applicable state
securities laws, unless and until (i) such Investor shall have
notified the Company of the proposed transfer, disposition or pledge
and shall have furnished the Company with a statement of the
circumstances surrounding the proposed transfer, disposition or
pledge and (ii) if reasonably requested by the Company and at the
expense of each Investor or its transferee, such Investor shall have
furnished to the Company an opinion of counsel reasonably
satisfactory (as to counsel, which in the case of the Institutional
Investors, may include internal counsel, and as to substance) to the
Company and its counsel that such proposed transfer, disposition or
pledge may be made without registration of such Warrants or
Underlying Shares under the Securities Act and applicable state
securities laws.
(i) Legends; Stop Transfer.
i. Each Investor acknowledges that all stock
certificates issues pursuant to the exercise of the Warrants shall
bear the following legend:
"TRANSFER RESTRICTED
-------------------
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
any state Securities Laws and may not be offered or sold
except in compliance therewith.
The securities represented by this certificate are subject to
the terms and conditions, including certain restrictions on
transfer, of an Investors' Agree anuary 21, 1998, as amended
from time to time, and none of such securities or any
interest therein, shall be transferred, pledged, rwise
disposed of except as provided in that Agreement. A ors'
Agreement is on file with the Secretary of the Company to any
properly interested person without charge within five (5)
days after receipt of a written request."
ii. Each Investor acknowledges that all certificates
representing Warrants shall bear the following legend:
"TRANSFER RESTRICTED
-------------------
These warrants and the securities issuable upon the exercise
hereof have not been registered under the Securities Act of
1933, as amended, or any state Securities Laws and may not
be offered or sold except in compliance therewith.
These warrants and the securities issuable upon the exercise
hereof are subject to the terms and conditions, including
certain restrictions on transfer, of an Investors' Agreement
dated as of January 21, 1998, as amended from time to time,
and none of such securities, or any interest therein, shall
be transferred, pledged, encumbered or otherwise disposed of
except as provided in that Agreement. A copy of the
Investors' Agreement is on file with the Secretary of the
Company and will be mailed to any properly interested person
without charge within five (5) days after receipt of a
written request."
iii. In addition, the Company shall make a notation
regarding the restrictions on transfer of the Warrants and
Underlying Shares in its stock books, and the Warrants and
Underlying Shares shall be transferred on the books of the Company
only if transferred or sold pursuant to an effective registration
statement under the Securities Act and applicable state securities
laws covering such Warrants or Underlying Shares or pursuant to and
in compliance with the provisions of Section 4.6(h) hereof. A copy
of this Agreement, together with any amendments thereto, shall
remain on file with the Secretary of the Company and shall be
available for inspection to any properly interested person without
charge within five days after the Company's receipt of a written
request therefor.
4.7 Brokers. No broker, investment banker, financial
advisor or other person or entity is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of any Investor or any of its affiliates.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Investor that:
5.1 Organization and Standing. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted.
5.2 Capitalization. The authorized capital of the Company,
as of the Merger, will consist of 50,000,000 shares of Common Stock, par value
$.01 per share, 15,000,000 shares of Preferred Stock, par value $.01 per share
of which 500,000 shares are designated Series A Junior Participating Preferred
Stock, par value $.01 per share. As of the close of business on January 20,
1998, 20,356,764 shares of the Company's Common Stock were issued and
outstanding, and no such shares were held in treasury. The Company has no
shares of Preferred Stock issued and outstanding. As of January 20, 1998,
except for (i) 3,555,774 shares reserved for issuance pursuant to outstanding
Options and rights granted under the Stock Plans, and (ii) 500,000 shares of
Junior Preferred Stock reserved for issuance upon exercise of certain rights,
there are not now, and following the Merger, there will not be, any existing
options, warrants, calls, subscriptions, or other rights, or other agreements
or commitments, obligating the Company to issue, transfer or sell any shares
of capital stock of the Company or any of its subsidiaries.
5.3 Authorization. All corporate action on the part of
the Company necessary for the authorization, execution, delivery and
performance of this Agreement by the Company and for the authorization,
issuance and delivery of the Shares being sold under this Agreement, has been
taken. This Agreement, when executed and delivered by all parties hereto,
shall constitute the valid and legally binding obligation of the Company and
shall be enforceable against the Company in accordance with its terms, except
to the extent enforceability may be limited by bankruptcy laws, insolvency
laws, reorganization laws, moratorium laws or other laws affecting creditors'
rights generally and except to the extent enforceability may be limited by
general equitable principles.
5.4 Securities Act. The sale of Warrants in accordance
with the terms of this Agreement (assuming the accuracy of the representations
and warranties of the Investors contained in Section 4) is exempt from the
registration requirements of the Securities Act.
5.5 Non-Contravention. The execution and delivery of this
Agreement by each Company does not, and the consummation by the Company of the
transactions contemplated hereby and the performance by the Company of the
obligations which it is obligated to perform hereunder will not, (a) violate
any provision of the articles of association, by-laws, agreement of limited
partnership or other organizational documents of the Company, (b) violate in
any material respect any material law, regulation, rule, order, judgment or
decree to which the Company is subject, (c) violate in any material respect,
result in the termination or the acceleration of, or conflict with in any
material respect or constitute a material default under, any material Contract
to which the Company is a party or by which any of its assets or properties
are bound or (d) result in the creation of any lien or other encumbrance on
any of the material assets or properties of the Company or the loss of any
material license or other material contractual right with respect thereto.
5.6 Consents, Approvals and Notices. The execution and
delivery of this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby does not require any (a) material
consent, authorization, order or approval of, filing or registration with,
or notice to, any governmental or regulatory authority, which has not
otherwise been obtained or (b) material consent, authorization, approval,
waiver, order, license, certificate or permit or act of or from, or notice
to, any party to any Contract to which the Company is a party or by which
any of its assets or properties are bound, which has not been otherwise
obtained.
5.7 Litigation. There is no action, suit or proceeding
pending or, to the knowledge of the Company, threatened, before any court
against the Company which challenges the validity or the propriety of the
transactions contemplated by this Agreement.
6. RIGHTS OF HOLDERS.
Each Holder hereby agrees that if such Holder is not a party
to the Investors' Agreement, then such Holder will take all necessary and
appropriate steps to become a party to the Investors' Agreement. For this
purpose, the Warrants and such Underlying Shares shall be subject to the
restrictions, and entitled to the benefits, to the extent provided in the
Investors' Agreement with respect to Shares held by a "Shareholder" (as
defined in the Investors' Agreement).
7. ADJUSTMENTS.
7.1. Stock Dividend and Distributions; Stock Splits;
Reverse Stock Splits; Reclassifications. In this case the Company shall (i)
pay a dividend or make any other distribution with respect to its Shares in
shares of its capital stock, (ii) subdivide its outstanding Shares, (iii)
combine its outstanding Shares into a smaller number of shares, (iv) issue any
shares of its capital stock in a reclassification of the Shares (including any
such reclassification in connection with a merger, consolidation or other
business combination in which the Company is the surviving corporation) or (v)
in the event the Company shall merge, combine or engage in a share exchange or
similar corporate transaction with any other entity in which the Company is
not the surviving corporation, the number of Shares issuable upon exercise of
each Warrant immediately prior to the record date for such dividend or
distribution or the effective date of such subdivision, combination,
reclassification or other transaction shall be adjusted so that the Holder of
each Warrant shall thereafter be entitled to receive the kind and number of
Shares or other securities of the Company that such Holder would have owned or
have been entitled to receive after the happening of any of the events
described above, had such Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this Section 7.1 shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
7.2 Other Dilutive Events. In case any event shall occur
as to which the provisions of Section 7.1 are not strictly applicable but the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Agreement in accordance with the essential intent and
principles of such section, then, in each such case, the Company shall appoint
a firm of independent certified public accountants of recognized national
standing (which may be the regular auditors of the Company), which shall give
their opinion upon the adjustment, if any, on a basis consistent with the
essential intent and principles established in Section 7.1 hereto, necessary
to preserve, without dilution, the purchase rights represented by each
Warrant. Upon receipt of such opinion, the Company will promptly mail a copy
thereof to the Holder of each Warrant and shall make the adjustments described
therein.
7.3. Notice of Adjustment. Whenever the number of Shares
issuable upon the exercise of a Warrant is adjusted, as herein provided, the
Company shall mail by first class mail, postage prepaid, to each Holder,
notice of such adjustment or adjustments setting forth the number of Shares or
other stock or property issuable upon the exercise of each Warrant after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
7.4. Statement on Warrants. Irrespective of any adjustment
in the number or kind of shares issuable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
7.5. Fractional Interest. The Company shall not be
required to issue fractional Shares on the exercise of Warrants. If more than
one Warrant shall be presented for exercise in full at the same time by the
same Holder, the number of full Shares which shall be issuable upon such
exercise thereof shall be computed on the basis of the aggregate number of
Shares acquirable on exercise of the Warrants so presented. If any fraction
of a Shares would, except for the provisions of this Section, be issuable on
the exercise of any Warrant (or specified portion thereof), the Company shall
pay an amount in cash calculated by it to be equal to the then current market
value, as determined in good faith by the Company, per Share multiplied by
such fraction computed to the nearest whole cent.
8. WARRANT TRANSFER BOOKS.
The Warrant Certificates shall be issued in registered form
only. The Company shall keep a register at its office in which, subject to
such reasonable regulations as it may prescribe, it shall provide for the
registration of Warrant Certificates and of transfers or exchanges of Warrant
Certificates as herein provided. At the option of the Holder, Warrant
Certificates may be exchanged at such office, and upon payment of the charges
hereinafter provided. Whenever any Warrant Certificates are so surrendered
for exchange, the Company shall execute the Warrant Certificates that the
Holder making the exchange is entitled to receive. All Warrant Certificates
issued upon any registration of transfer or exchange of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such registration of transfer or
exchange. Every Warrant Certificate surrendered for registration of transfer
or exchange shall (if so required by the Company) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and duly executed by the Holder thereof or his attorney duly
authorized in writing. No service charge shall be made for any registration
of transfer or exchange of Warrant Certificates. The Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Warrant Certificates. Any Warrant Certificate when duly endorsed in blank
shall be deemed negotiable and when a Warrant Certificate shall have been so
endorsed, the Holder thereof may be treated by the Company and all other
persons dealing therewith as the absolute owner thereof for any purpose and as
the Person entitled to exercise the rights represented thereby, or to the
transfer thereof on the register of the Company, any notice to the contrary
notwithstanding; but until such transfer on such register, the Company may
treat the registered Holder thereof as the owner for all purposes.
9. WARRANT HOLDERS.
9.1. No Voting Rights. Prior to the exercise of the
Warrants, no Holder of a Warrant Certificate, as such, shall be entitled to
any rights of a stockholder of the Company, including, without limitation, the
right to vote, to consent, to exercise any preemptive right, to receive any
notice of meetings of shareholders for the election of directors of the
Company or any other matter or to receive any notice of any proceedings of the
Company, except as may be specifically provided for herein.
9.2. Right of Action. All rights of action in respect of
this Agreement are vested in the Holders of the Warrants, and any Holder of
any Warrant, without the consent of the Holder of any other Warrant, may, in
such Holder's own behalf and for such Holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such Holder's right to
exercise, exchange or tender for purchase such Holder's Warrants in the manner
provided in this Agreement.
10. COVENANTS.
10.1. Reservation of Shares. The Company covenants that it
will at all times reserve and keep available, free from preemptive rights, out
of its authorized but unissued Shares, solely for the purpose of issue upon
exercise of Warrants as herein provided, such number of shares of shares of
Voting Common Stock or Non-Voting Common Stock as shall then be issuable upon
the exercise of all outstanding Warrants. The Company covenants that all
shares of Shares which shall be so issuable shall, upon such issue, be duly
and validly issued and fully paid and nonassessable.
10.2. Determinations by Board of Directors. All
determinations by the Board of Directors of the Company under the provisions
of this Agreement shall be made in good faith with due regard to the interests
of the Holder of a Warrant, and in accordance with good financial practice.
11. MISCELLANEOUS.
11.1. Payment of Taxes. The Company shall pay all issuance
or transfer taxes and similar governmental charges that may be imposed on the
Company in connection with the issuance of the Warrants or any securities
deliverable upon exercise of Warrants with respect thereto. The Company shall
not be required, however, to pay any tax or other governmental charge imposed
in connection with any transfer involved in the issue of any certificate for
Underlying Shares or payment of cash to any Person other than the Holder of a
Warrant Certificate surrendered upon the exercise of a Warrant, and in case of
such transfer or payment, the Company shall not be required to issue any stock
certificate or pay any cash until such tax or governmental charge has been
paid or it has been established to the Company's satisfaction that no such tax
or other governmental charge is due.
11.2. Surrender of Certificates. Any Warrant Certificate
surrendered for exercise shall be delivered to the Company, promptly cancelled
and not reissued by the Company. The Company shall destroy such cancelled
Warrant Certificates.
11.3. Mutilated, Destroyed, Lost and Stolen Warrant
Certificates.
(a) If (i) any mutilated Warrant Certificate is
surrendered to the Company or (ii) the Company receives evidence to its
satisfaction of the destruction, loss or theft of any Warrant Certificate, and
there is delivered to the Company such security or indemnity as may be
required by it to save it harmless, then, in the absence of notice to the
Company that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, in exchange for any such mutilated
Warrant Certificate or in lieu of any such destroyed, lost or stolen Warrant
Certificate, a new Warrant Certificate of like tenor and for a like aggregate
number of Warrants.
(b) Upon the issuance of any new Warrant Certificate under
this Section 11.3. the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and other expenses (including the reasonable fees and expenses of
counsel to the Company) in connection therewith.
(c) Every new Warrant Certificate executed and delivered
pursuant to this Section 11.3 in lieu of any destroyed, lost or stolen Warrant
Certificate shall constitute an original contractual obligation of the
Company, whether or not the destroyed, lost or stolen Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder.
(d) The provisions of this Section 11.3 are exclusive and
shall preclude (to the extent lawful) all other rights or remedies with
respect to the replacement of mutilated, destroyed, lost or stolen Warrant
Certificates.
11.4 Notices. All notices and other communications
necessary or contemplated under this Agreement shall be in writing and shall
be delivered in the manner specified herein. All notices shall be deemed to
have been duly given upon confirmation by telecopy if delivered by telecopy or
by hand, or one day after sending by overnight delivery service, or five days
after sending by certified mail, postage prepaid, return receipt requested to
the respective addresses of the parties set forth below:
i. for notices and communications to the Company:
Fisher Scientific International Inc.
Liberty Lane
Hampton, N.H. 03842
Fax: (603) 929-2703
Attention: Todd DuChene, Esq.
ii. for notices and communications to (i) each
Institutional Investor, to its address as set forth
under each Institutional Investor's name in Exhibit
A, and (ii) each Individual Investor as set forth in
Exhibit B hereto, to his attention in care of Thomas
H. Lee Company, 75 State Street, Boston, Massachusetts
02109.
By notice complying with the foregoing provisions of this Section 11.4, each
party shall have the right to change the notice address for future notices and
communications to such party.
11.5. Applicable Law. This Agreement and each Warrant
issued hereunder and all rights arising hereunder shall be governed by the
laws of the State of Delaware.
11.6. Persons Benefitting. This Agreement shall be binding
upon and inure to the benefit of the Company and its respective successors,
assigns, beneficiaries, executors and administrators, and the Holders from
time to time of the Warrants. Nothing in this Agreement is intended or shall
be construed to confer upon any Person, other than the Company and the Holders
of the Warrants, any right, remedy or claim under or by reason of this
Agreement or any part hereof.
11.7. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same instrument.
11.8. Amendments. The Company may, without the consent of
the Holders of the Warrants, by supplemental agreement or otherwise, make any
changes or corrections in this Agreement that it shall have been advised by
counsel (a) are required to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein or (b) add to the covenants and agreements of the Company for
the benefit of the Holders, or surrender any rights or power reserved to or
conferred upon the Company in this Agreement; provided that, in each case,
such changes or corrections shall not adversely affect the interests of the
Holders in any material respect.
11.9. Headings. The descriptive headings of the several
Sections of this Agreement are inserted for convenience and shall not control
or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duty executed, as of the day and year first above written.
FISHER SCIENTIFIC INTERNATIONAL INC.
By: /s/ Todd M. DuChene
---------------------------------------
Name: Todd M. DuChene
Title: Vice President - General Counsel
And Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument as of the date first above written.
THL Equity Shareholders:
THOMAS H. LEE EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------------------
Name: Anthony J. DiNovi
Title:
THOMAS H. LEE FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------------------
Name: Anthony J. DiNovi
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp,
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------------------
Name: Anthony J. DiNovi
Title:
THL FSI EQUITY INVESTORS, L.P.
By: THL Equity Advisors III
Limited Partnership, as
General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------------------
Name: Anthony J. DiNovi
Title:
DLJ Entities' Shareholders:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ DIVERSIFIED PARTNERS - A, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ MILLENNIUM PARTNERS - A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJMB FUNDING II, INC.
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
UK INVESTMENT PLAN 1997 PARTNERS
By: Donaldson, Lufkin & Jenrette Inc.,
as general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Kirk B. Wortman
---------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
The address for each of the DLJ Entities
listed above is:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, New York 10172
Fax: (212) 892-7272
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
By: /s/ Michael Blott
---------------------------------------
Name: Michael Blott
Title: Executive Partner
Address:
380 Madison Avenue
New York, NY 10017
Merrill Lynch Entities:
ML IBK POSITIONS, INC.
By: /s/ James V. Caruso
---------------------------------------
Name: James V. Caruso
Title: Vice President
KECALP INC.
By: /s/ Robert Tully
---------------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
MERRILL LYNCH KECALP L.P. 1997
By: KECALP Inc., as general partner
By: /s/ Robert Tully
---------------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
The address for each of the Merrill Lynch
Entities listed above is:
255 Liberty Street
New York, NY 10080
Fax: (212) 236-7584
Individual Shareholders:
By: /s/ David V. Harkins
---------------------------------------
Name: David V. Harkins
By: /s/ Sheryll J. Harkins
---------------------------------------
Name: The 1995 Harkins Gift Trust
By: /s/ Thomas R. Shepherd
---------------------------------------
Name: Thomas R. Shepherd
Money Purchase Pension Plan
By: /s/ Scott A. Schoen
---------------------------------------
Name: Scott A. Schoen
By: /s/ C. Hunter Boll
---------------------------------------
Name: C. Hunter Boll
By: /s/ Scott M. Sperling
---------------------------------------
Name: Scott M. Sperling
By: /s/ Sperling Family Limited Partnership
---------------------------------------
Name: Sperling Family Limited
Partnership
By: /s/ Anthony J. DiNovi
---------------------------------------
Name: Anthony J. DiNovi
By: /s/ Thomas M. Hagerty
---------------------------------------
Name: Thomas M. Hagerty
By: /s/ Warren C. Smith, Jr.
---------------------------------------
Name: Warren C. Smith,Jr.
By: /s/ Seth W. Lawry
---------------------------------------
Name: Seth W. Lawry
By: /s/ Joseph J. Incandela
---------------------------------------
Name: Joseph J. Incandela
By: /s/ Kent R. Weldon
---------------------------------------
Name: Kent R. Weldon
By: /s/ Terrence M. Mullen
---------------------------------------
Name: Terrence M. Mullen
By: /s/ Todd M. Abbrecht
---------------------------------------
Name: Todd M. Abbrecht
By: /s/ Wendy L. Masler
---------------------------------------
Name: Wendy L. Masler
By: /s/ THL-CCI Limited Partnership
---------------------------------------
Name: THL-CCI Limited Partnership
By: Wendy L. Master
Title: Vice President
By: /s/ Andrew D. Flaster
---------------------------------------
Name: Andrew D. Flaster
By: /s/ Kristina A. Watts
---------------------------------------
Name: First Trust Co. FBO
Kristina A. Watts
By: /s/ Charles Robins
---------------------------------------
Name: Charles Robins
By: /s/ James Westra
---------------------------------------
Name: James Westra
By: /s/ Charles A. Brizius
---------------------------------------
Name: Charles A. Brizius
EXHIBIT A -- INVESTORS COMMON STOCK WARRANT ACQUISITION AGREEMENT
Number of Warrants Acquired By Each Institutional Investor
----------------------------------------------------------
<TABLE>
<CAPTION>
Warrants to Purchase Warrants to Purchase
Shares of Voting Shares of Non-Voting
Stockholder Common Stock Common Stock
----------- -------------------- --------------------
<S> <C> <C>
Thomas H. Lee Equity Fund III, L.P. 198,268 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
Thomas H. Lee Foreign Fund III, L.P. 12,268 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
THL FSI Equity Investors, L.P. 99,614 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
THL-CCI Limited Partnership 12,209 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
DLJ Merchant Banking Partners II, L.P. 62,749 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Merchant Banking Partners II-A, L.P. 2,499 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Offshore Partners II, C.V. 3,086 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Diversified Partners, L.P. 3,669 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Diversified Partners - A, L.P. 1,362 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Millennium Partners, L.P. 1,015 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Millennium Partners - A, L.P. 198 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ MB Funding II, Inc. 11,140 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
UK Investment Plan 1997 Partners 1,660 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ EAB Partners, L.P. 282 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ ESC II, L.P. 11,833 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ First ESC, L.P. 121 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Chase Equity Associates, L.P. 0 66,409
270 Park Avenue
New York, NY 10172
Merrill Lynch KECALP L.P. 1997 16,019 0
KECALP Inc.
225 Liberty Street
New York, NY 10080
KECALP Inc. 3,051 0
c/o KECALP Inc.
225 Liberty Street
New York, NY 10080
ML IBK Positions, Inc. 853 0
Joseph S. Valenti --- -
c/o ML IBK Positions, Inc.
225 Liberty Street
New York, NY 10080-6114
======= ======
TOTAL 441,896 66,409
</TABLE>
EXHIBIT B --INVESTORS COMMON STOCK WARRANT ACQUISITION AGREEMENT
Stockholder Warrants to Purchase
----------- Shares of Voting
Common Stock
--------------------
David V. Harkins 1,481
The 1995 Harkins Gift Trust 165
Thomas R. Shepherd Money Purchase Pension Plan (Keogh) 514
Scott A. Schoen 987
C. Hunter Boll 987
Scott M. Sperling 494
Sperling Family Limited Partnership 329
Anthony J. DiNovi 823
Thomas M. Hagerty 823
Warren C. Smith, Jr. 823
Seth W. Lawry 247
Joseph J. Incandela 206
Kent R. Weldon 123
Terrence M. Mullen 62
Todd M. Abbrecht 62
Wendy L. Masler 34
Andrew D. Flaster 34
First Trust Co. FBO Kristina A. Watts 34
Charles W. Robins 34
James Westra 34
Charles A. Brizius 62
-----
TOTAL 8,358
=====
EXHIBIT C
TRANSFER RESTRICTED
-------------------
These warrants and the securities issuable upon the exercise
hereof have not been registered under the Securities Act of
1933, as amended, or any state Securities Laws and may not be
offered or sold except in compliance therewith.
These warrants and the securities issuable upon the exercise
hereof are subject to the terms and conditions, including
certain restrictions on transfer, of an Investors' Agreement
dated as of January 21, 1998, as amended from time to time,
and none of such securities, or any interest therein, shall
be transferred, pledged, encumbered or otherwise disposed of
except as provided in that Agreement. A copy of the
Investors' Agreement is on file with the Secretary of the
Company and will be mailed to any properly interested person
without charge within five (5) days after receipt of a
written request.
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE SHARES
OF FISHER SCIENTIFIC INTERNATIONAL INC.
VOTING COMMON STOCK
No. ____ Certificate for __ Warrants
This certifies that ___________________, or registered
assigns, is the registered holder of the number of Warrants set forth above.
Each Warrant entitles the holder thereof (a "Holder"), subject to the
provisions contained herein and in the Common Stock Warrant Acquisition
Agreement referred to below, to receive from Fisher Scientific International
Inc., a Delaware corporation (the "Company"), one share of Voting Common
Stock, par value $0.01 per share ("Voting Common Stock"), of the Company
("Shares"), at the exercise price (the "Exercise Price") of $48.25 per share,
subject to adjustment upon the occurrence of certain events.
This Warrant Certificate is issued under and in accordance
with the Common Stock Warrant Acquisition Agreement, dated as of January 21,
1998 (the "Warrant Agreement"), between the Company and certain entities and
persons named therein, and is subject to the terms and provisions contained in
the Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. The Warrant Agreement is
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder
of the Company and the Holders of the Warrants. Terms defined in the Warrant
Agreement are used herein as therein defined.
The Warrants represented by this Warrant Certificate shall be
exercisable prior to the close of business on the Expiration Date.
The Exercise Price and the number of shares of Voting Common
Stock issuable upon the exercise of each Warrant are subject to adjustment as
provided in the Warrant Agreement.
All Shares issuable by the Company upon the exercise of
Warrants shall, upon such issue, be duly and validly issued and fully paid and
nonassessable.
In order to exercise a Warrant, the registered holder hereof
must surrender this Warrant Certificate at the office of the Company, with the
Exercise Subscription Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with any
required payment in full of the Exercise Price then in effect for the
Underlying Shares as to which the Warrant(s) represented by this Warrant
Certificate are submitted for exercise, all subject to the terms and
conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be in accordance with Section 3.4(a) of the Warrant
Agreement.
The Company shall pay all issuance and transfer taxes and
similar governmental charges that may be imposed on the Company in connection
with the issuance of the Warrants or any securities deliverable upon exercise
of Warrants. The Company shall not be required, however, to pay any tax or
other charge imposed in connection with any transfer involved in the issue of
any certificate for Underlying Shares or payment of cash to any person other
than the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or other
charge has been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
Subject to compliance with the Warrant Agreement, this
Warrant Certificate and all rights hereunder are transferable by the
registered holder hereof, in whole or in part, on the register of the Company,
upon surrender of this Warrant Certificate for registration of transfer at the
office of the Company, duly endorsed by, or accompanied by a written
instrument of transfer substantially in the form of the attached Form of
Assignment or otherwise in a form satisfactory to the Company duly executed
by, the Holder hereof or his attorney duly authorized in writing, with
signature guaranteed. Upon any partial transfer, the Company will issue and
deliver to such holder a new Warrant Certificate or Certificates with respect
to any portion not so transferred.
No service charge shall be made for any registration of
transfer or exchange of the Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Each Holder of this Warrant Certificate by taking or holding
the same consents and agrees that this Warrant Certificate when duly endorsed
in blank shall be deemed negotiable and that when this Warrant Certificate
shall have been so endorsed, the Holder hereof may be treated by the Company
and all other Persons dealing with this Warrant Certificate as the absolute
owner hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, or to the transfer hereof on the register of the Company
maintained by a Warrant agent, any notice to the contrary notwithstanding, but
until such transfer on such register, the Company may treat the registered
Holder hereof as owner for all purposes.
This Warrant Certificate and the Warrant Agreement are
subject to amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate and not defined
herein that are defined in the Warrant Agreement shall have the meanings
assigned to them in the Warrant Agreement.
Dated: ________________ 1998
FISHER SCIENTIFIC INTERNATIONAL INC.
By:
-----------------------------
Name:
Title:
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: FISHER SCIENTIFIC INTERNATIONAL INC.
The undersigned irrevocably exercises _____________ of the
Warrants for the acquisition of one share of Voting Common Stock (subject to
adjustment), par value $0.01 per share, of Fisher Scientific International
Inc. (a "Share"), for each Warrant represented by the Warrant Certificate and
herewith makes payment of $____ (such payment being in cash or by certified or
official bank check payable to the order of Fisher Scientific International
Inc.), all at the Exercise Price and on the terms and conditions specified in
this Warrant Certificate and the Common Stock Warrant Acquisition Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to Fisher Scientific International Inc. and directs that
the Shares deliverable upon the exercise of such Warrants be registered or
placed in the name and at the address specified below and delivered thereto.
Date: __________ 19__
_______________________________(1)
(Signature of Owner)
_________________________________
(Street Address)
_________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_________________________________
- ------------
(1) Signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatever, and must be guaranteed by a
financial institution satisfactory to the Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
EXHIBIT D
TRANSFER RESTRICTED
-------------------
These warrants and the securities issuable upon the exercise
hereof have not been registered under the Securities Act of
1933, as amended, or any state Securities Laws and may not be
offered or sold except in compliance therewith.
These warrants and the securities issuable upon the exercise
hereof are subject to the terms and conditions, including
certain restrictions on transfer, of an Investors' Agreement
dated as of January 21, 1998, as amended from time to time,
and none of such securities, or any interest therein, shall
be transferred, pledged, encumbered or otherwise disposed of
except as provided in that Agreement. A copy of the
Investors' Agreement is on file with the Secretary of the
Company and will be mailed to any properly interested person
without charge within five (5) days after receipt of a
written request.
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE SHARES
OF FISHER SCIENTIFIC INTERNATIONAL INC.
NON-VOTING COMMON STOCK
No. ____ Certificate for __ Warrants
This certifies that ________________, or registered
assigns, is the registered holder of the number of Warrants set forth above.
Each Warrant entitles the holder thereof (a "Holder"), subject to the
provisions contained herein and in the Common Stock Warrant Acquisition
Agreement referred to below, to receive from Fisher Scientific International
Inc., a Delaware corporation (the "Company"), one share of Non-Voting Common
Stock, par value $0.01 per share ("Non-Voting Common Stock"), of the Company
("Shares"), at the exercise price (the "Exercise Price") of $48.25 per share,
subject to adjustment upon the occurrence of certain events.
This Warrant Certificate is issued under and in accordance
with the Common Stock Warrant Acquisition Agreement, dated as of January 21,
1998 (the "Warrant Agreement"), between the Company and certain entities and
persons named therein, and is subject to the terms and provisions contained in
the Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. The Warrant Agreement is
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder
of the Company and the Holders of the Warrants. Terms defined in the Warrant
Agreement are used herein as therein defined.
The Warrants represented by this Warrant Certificate shall be
exercisable prior to the close of business on the Expiration Date.
The Exercise Price and the number of shares of Non-Voting
Common Stock issuable upon the exercise of each Warrant are subject to
adjustment as provided in the Warrant Agreement.
All Shares issuable by the Company upon the exercise of
Warrants shall, upon such issue, be duly and validly issued and fully paid and
nonassessable.
In order to exercise a Warrant, the registered holder hereof
must surrender this Warrant Certificate at the office of the Company, with the
Exercise Subscription Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with any
required payment in full of the Exercise Price then in effect for the
Underlying Shares as to which the Warrant(s) represented by this Warrant
Certificate are submitted for exercise, all subject to the terms and
conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be in accordance with Section 3.4(a) of the Warrant
Agreement.
The Company shall pay all issuance and transfer taxes and
similar governmental charges that may be imposed on the Company in connection
with the issuance of the Warrants or any securities deliverable upon exercise
of Warrants. The Company shall not be required, however, to pay any tax or
other charge imposed in connection with any transfer involved in the issue of
any certificate for Underlying Shares or payment of cash to any person other
than the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or other
charge has been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
Subject to compliance with the Warrant Agreement, this
Warrant Certificate and all rights hereunder are transferable by the
registered holder hereof, in whole or in part, on the register of the Company,
upon surrender of this Warrant Certificate for registration of transfer at the
office of the Company, duly endorsed by, or accompanied by a written
instrument of transfer substantially in the form of the attached Form of
Assignment or otherwise in a form satisfactory to the Company duly executed
by, the Holder hereof or his attorney duly authorized in writing, with
signature guaranteed. Upon any partial transfer, the Company will issue and
deliver to such holder a new Warrant Certificate or Certificates with respect
to any portion not so transferred.
No service charge shall be made for any registration of
transfer or exchange of the Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Each Holder of this Warrant Certificate by taking or holding
the same consents and agrees that this Warrant Certificate when duly endorsed
in blank shall be deemed negotiable and that when this Warrant Certificate
shall have been so endorsed, the Holder hereof may be treated by the Company
and all other Persons dealing with this Warrant Certificate as the absolute
owner hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, or to the transfer hereof on the register of the Company
maintained by a Warrant agent, any notice to the contrary notwithstanding, but
until such transfer on such register, the Company may treat the registered
Holder hereof as owner for all purposes.
This Warrant Certificate and the Warrant Agreement are
subject to amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate and not defined
herein that are defined in the Warrant Agreement shall have the meanings
assigned to them in the Warrant Agreement.
Dated: ___________ 1998
FISHER SCIENTIFIC INTERNATIONAL INC.
By:
------------------------------
Name:
Title:
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: FISHER SCIENTIFIC INTERNATIONAL INC.
The undersigned irrevocably exercises _____________ of the
Warrants for the acquisition of one share of Non-Voting Common Stock (subject
to adjustment), par value $0.01 per share, of Fisher Scientific International
Inc. (a "Share"), for each Warrant represented by the Warrant Certificate and
herewith makes payment of $____ (such payment being in cash or by certified or
official bank check payable to the order of Fisher Scientific International
Inc.), all at the Exercise Price and on the terms and conditions specified in
this Warrant Certificate and the Common Stock Warrant Acquisition Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to Fisher Scientific International Inc. and directs that
the Shares deliverable upon the exercise of such Warrants be registered or
placed in the name and at the address specified below and delivered thereto.
Date: __________ 19__
_______________________________(1)
(Signature of Owner)
_________________________________
(Street Address)
_________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_________________________________
- ------------
(1) Signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatever, and must be guaranteed by a
financial institution satisfactory to the Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the
enclosed Warrant Certificate hereby sells, assigns, and transfers unto the
Assignee(s) named below (including the undersigned with respect to any
Warrants constituting a part of the Warrants evidenced by the enclosed Warrant
Certificate not being assigned hereby) all of the rights of the undersigned
under the enclosed Warrant Certificate, with respect to the number of Warrants
set forth below:
Social Security
or Other
Identifying
Name of Number of Name of
Assignees Address Assignee(s)_ Warrants
- --------- ------- ------------ --------
and does hereby irrevocably constitute and appoint Fisher Scientific
International Inc. the undersigned's attorney to make such transfer on the
books of Fisher Scientific International Inc. maintained for that purpose,
with full power of substitution in the premises.
Date: __________ 19__
_____________________________(1)
(Signature of Owner)
_____________________________
(Street Address)
_____________________________
(City) (State) (Zip Code)
Signature Guaranteed By:
_____________________________
(1) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatever.
INVESTORS' AGREEMENT
dated
as of
January 21, 1998
among
FISHER SCIENTIFIC INTERNATIONAL, INC.,
THOMAS H. LEE EQUITY FUND III, L.P.,
THL-CCI LIMITED PARTNERSHIP,
THL FOREIGN FUND III, L.P.,
THL FSI EQUITY INVESTORS, L.P.,
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS II - A, L.P.,
DLJ OFFSHORE PARTNERS II, C.V.,
DLJ DIVERSIFIED PARTNERS, L.P.,
DLJ DIVERSIFIED PARTNERS - A, L.P.,
DLJ MILLENNIUM PARTNERS, L.P.
DLJ MILLENNIUM PARTNERS - A, L.P.,
DLJMB FUNDING II, INC.,
UK INVESTMENT PLAN 1997 PARTNERS,
DLJ EAB PARTNERS, L.P.,
DLJ ESC II, L.P.,
DLJ FIRST ESC, L.P.,
CHASE EQUITY ASSOCIATES, L.P.,
MERRILL LYNCH KECALP L.P. 1997,
KECALP INC.,
ML IBK POSITIONS, INC.
AND
CERTAIN OTHER PERSONS NAMED HEREIN
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS............................................................ 2
Section 1.1 Definitions............................................... 2
ARTICLE II
CORPORATE GOVERNANCE AND MANAGEMENT.................................... 13
Section 2.1 Composition of the Board.................................. 13
Section 2.2 Removal................................................... 13
Section 2.3 Vacancies................................................. 14
Section 2.4 Action by the Board....................................... 14
Section 2.5 Conflicting Charter or Bylaw Provision.................... 15
ARTICLE III
RESTRICTIONS ON TRANSFER............................................... 15
Section 3.1 General................................................... 15
Section 3.2 Legends................................................... 16
Section 3.3 Permitted Transferees; Transfers by THL Entities.......... 16
Section 3.4 Restrictions on Transfers by Institutional Shareholders... 17
Section 3.5 Restrictions on Transfers by Management Shareholders...... 18
Section 3.6 Company Right of First Refusal............................ 19
Section 3.7 Notifications Regarding Transfers......................... 20
ARTICLE IV
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS................. 20
Section 4.1 Rights to Participate in Transfer......................... 20
Section 4.2 Right to Compel Participation in Certain Transfers........ 23
Section 4.3 Preemptive Rights......................................... 26
Section 4.4. Certain Other Purchases of Equity Securities.............. 29
ARTICLE V
REGISTRATION RIGHTS.................................................... 30
Section 5.1 Demand Registration....................................... 30
Section 5.2 Piggyback Registration.................................... 34
Section 5.3 Holdback Agreements....................................... 35
Section 5.4 Registration Procedures................................... 36
Section 5.5 Indemnification by the Company............................ 40
Section 5.6 Indemnification by Participating Shareholders............. 41
Section 5.7 Conduct of Indemnification Proceedings.................... 43
Section 5.8 Contribution.............................................. 44
Section 5.9 Participation in Public Offering.......................... 46
Section 5.10 Cooperation by the Company................................ 46
Section 5.11 No Transfer of Registration Rights........................ 46
ARTICLE VI
CERTAIN COVENANTS AND AGREEMENTS....................................... 46
Section 6.1 Confidentiality........................................... 46
Section 6.2 Reports................................................... 48
Section 6.3 Limitations on Subsequent Registration.................... 48
Section 6.4 Limitation on Purchase of Equity Securities............... 49
ARTICLE VII
MISCELLANEOUS.......................................................... 51
Section 7.1 Entire Agreement.......................................... 51
Section 7.2 Binding Effect; Benefit................................... 51
Section 7.3 Assignability............................................. 51
Section 7.4 Amendment; Waiver; Termination............................ 51
Section 7.5 Notices................................................... 52
Section 7.6 Headings.................................................. 55
Section 7.7 Counterparts.............................................. 55
Section 7.8 Applicable Law............................................ 55
Section 7.9 Specific Performance...................................... 55
Section 7.10 Consent to Jurisdiction; Expenses......................... 55
Section 7.11 Representative............................................ 56
Section 7.12 Severability.............................................. 59
INVESTORS' AGREEMENT
AGREEMENT dated as of January 21, 1998 among (i) Fisher
Scientific International, Inc. (the "Company"), (ii) Thomas H. Lee Equity Fund
III, L.P. ("THL"), certain individuals associated with THL listed on Schedule
I attached hereto, THL-CCI Limited Partnership ("THL-CCI"), THL Foreign Fund
III, L.P. and THL FSI Equity Investors, L.P. ("THL/FSI" and collectively with
THL, the individuals listed on Schedule I, THL-CCI, and THL Foreign Fund III,
L.P., the "THL Entities"), (iii) DLJ Merchant Banking Partners II, L.P.
("DLJMB"), DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P.,
DLJMB Funding II, Inc., DLJ Merchant Banking Partners II - A, L.P., DLJ
Diversified Partners - A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium
Partners - A, L.P., UK Investment Plan 1997 Partners, DLJ EAB Partners, L.P.,
DLJ ESC II, L.P., and DLJ First ESC, L.P. (collectively the "DLJ Entities"),
(iv) Chase Equity Associates, L.P. ("Chase Equity"), (v) Merrill Lynch KECALP
L.P. 1997, KECALP INC., and ML IBK Positions, Inc., (collectively, the
"Merrill Lynch Entities" and, together with each other entity listed in
clauses (iii) and (iv), the "Institutional Shareholders" and, collectively
with (ii), the "Equity Investors") and (vi) certain other Persons listed on
the signature pages hereof (including the trust pursuant to the Trust
Agreement, dated of even date herewith, between the Company and Mellon Bank,
N.A., as trustee (the "Rabbi Trust")) (the "Management Shareholders" and
individually, along with the THL Entities, DLJ Entities, Chase Equity, and
Merrill Lynch Entities, each a "Shareholder") and such other parties who may
become parties of this Agreement pursuant to the terms hereof.
W I T N E S S E T H :
WHEREAS, pursuant to the Subscription Agreement (as defined
below) the Equity Investors are or will be acquiring securities of FSI Merger
Corp. ("FSI"); and
WHEREAS, pursuant to the terms of the Merger Agreement (as
defined below), FSI will be merged with and into the Company, with the Company
as the surviving corporation (the "Merger"); and
WHEREAS, pursuant to the Merger, the stock of FSI held by
the Equity Investors will be converted into stock of the Company; and
WHEREAS, pursuant to the Merger, the Management Shareholders
are entitled to retain shares of stock of the Company; and
WHEREAS, upon the Merger and pursuant to the Equity
Investors' commitment to purchase cumulative preferred stock of the Company,
warrants to purchase common stock of the Company will be issued to the Equity
Investors; and
WHEREAS, pursuant to the Rabbi Trust and any stock or option
plan, Management Shareholders are or will hold shares of stock of the Company;
and
WHEREAS, the parties hereto may obtain additional shares of
stock of the Company in the future; and
WHEREAS, the parties hereto desire to enter into this
Agreement to govern certain of their rights, duties and obligations after
consummation of the Merger;
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. (a) The following terms, as used
herein, have the following meanings:
"Adverse Person" means any Person whom the Board reasonably
determines is a competitor or a potential competitor of the Company or its
Subsidiaries.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with such Person, provided that no securityholder of the Company shall
be deemed an Affiliate of any other securityholder solely by reason of any
investment in the Company. For the purpose of this definition, the term
"control" (including with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Applicable Law," with respect to any Person, means all
provisions of all laws, statutes, ordinances, rules, regulations, permits,
certificates or orders of any Governmental Authority applicable to such Person
or any of its assets or property or to which such Person or any of its assets
or property is subject, and all judgments, injunctions, orders and decrees of
all courts and arbitrators in proceedings or actions in which such Person is a
party or by which it or any of its assets of properties is or may be bound or
subject.
"beneficially own" shall have the meaning set forth in Rule
13d-3 of the Exchange Act.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Closing Date" means January 21, 1998.
"Common Stock" shall mean the common stock, par value $.01
per share, of the Company, non-voting common stock, par value $.01 per share,
of the Company and any stock into which such common stock and non-voting common
stock may thereafter be converted or changed.
"Demand Registration" means collectively, a THL Demand
Registration, an Institutional Shareholder Demand Registration, or a
Management Shareholder Demand Registration.
"Derivatives" shall mean options, warrants (including the
Equity Warrants) or other rights to acquire any Equity Securities of the
Company.
"Equity Investors" means the Institutional Shareholders and
the THL Entities.
"Equity Securities" means the Common Stock and preferred
stock, securities convertible into or exchangeable for Common Stock or
preferred stock, Derivatives, and any other equity security issued by the
Company.
"Equity Warrants" means warrants to purchase Common Stock
pursuant to the Equity Warrant Acquisition Agreement.
"Equity Warrant Acquisition Agreement" means the Common
Stock Warrant Acquisition Agreement, of even date herewith, among the Company,
the Institutional Shareholders and the THL Entities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Federal Reserve Board" means The Board of Governors of the
United States Federal Reserve System.
"Fully Diluted" means, with respect to any class of Equity
Securities, all outstanding shares of such class and all shares issuable in
respect of securities convertible into or exchangeable for such class, stock
appreciation rights or options, warrants and other irrevocable rights to
purchase or subscribe for such class or securities convertible into or
exchangeable for such class; provided, that no Person shall be deemed to own
such number of Fully Diluted shares of such class as such Person has the right
to acquire from any Person other than the Company.
"Initial Ownership" means, with respect to any class of
Equity Securities, the number of shares of such class of Equity Securities
beneficially owned and (without duplication) which such Persons have the right
to acquire from any Person as of the date hereof, or in the case of any Person
that shall become a party to this Agreement on a later date, as of such date,
taking into account any stock split, stock dividend, reverse stock split or
similar event.
"Initial Public Offering" means the first sale after the
date hereof of Common Stock pursuant to an effective registration statement
under the Securities Act (other than a registration statement on Form S-8 or
any successor form).
"Merger Agreement" means the Second Amended and Restated
Agreement and Plan of Merger, as amended, dated as of November 14, 1997, by
and between the Company and FSI.
"New Common Securities" means the Common Stock, whether now
authorized or not, any rights, options or warrants to purchase Common Stock
and any indebtedness or stock of the Company which is convertible into Common
Stock (or which is convertible into a security which is, in turn, convertible
into Common Stock) issued after the date hereof; provided, that the term "New
Common Securities" does not include (i) such Equity Securities issued as a
stock dividend to all holders of Common Stock pro rata or upon any subdivision
or combination of shares of Common Stock; (ii) shares of Common Stock issued
upon exercise of Derivatives outstanding on the date hereof; and (iii) shares
of Common Stock issued to Michael D. Dingman (or entities designated by Mr.
Dingman who become upon such issuance a party to this Agreement in accordance
with Section 7.3(a) and (b)) in exchange for up to $7,500,000 in cash.
"New Preferred Securities" means any preferred stock,
whether now authorized or not, any rights, options or warrants to purchase
preferred stock and any indebtedness or stock of the Company which is
convertible into preferred stock (or which is convertible into a security
which is, in turn, convertible into preferred stock) issued after the date
hereof; provided, that the term "New Preferred Securities" does not include
such Equity Securities issued as a stock dividend to all holders of preferred
stock pro rata or upon any subdivision or combination of shares of preferred
stock and (ii) shares of preferred stock issued upon exercise of Derivatives
outstanding on the date hereof.
"Non-THL Shareholders" means all Shareholders other than the
THL Entities.
"Percentage Ownership" means, with respect to any
Shareholder at any time, (i) the number of Fully Diluted shares of Common
Stock that such Shareholder beneficially owns (and, without duplication, has
the right to acquire from any Person) at such time, divided by (ii) the total
number of Fully Diluted shares of Common Stock at such time.
"Permitted Transferee" means (i) in the case of
Institutional Shareholders (A) the Company, (B) any THL Entity, (C) any
general or limited partner or shareholder of such Shareholder, and any
corporation, partnership or other entity that is an Affiliate of such
Shareholder (collectively, "Shareholder Affiliates"), (D) any general partner,
limited partner, employee, officer or director of such Shareholder or a
Shareholder Affiliate, or any spouse, lineal descendant (whether natural or
adopted), sibling, parent, heir, executor, administrator, testamentary
trustee, lifetime trustee, legatee or beneficiary of any of the foregoing
persons described in this clause (d) (collectively, "Shareholder Associates"),
and (E) any trust, the beneficiaries of which, or any corporation, limited
liability company or partnership, stockholders, members or general or limited
partners of which include only such Shareholder, such Shareholder Affiliates or
Shareholder Associates; provided, however, that in order for any of the
parties identified in clauses (C), (D) or (E) to be a Permitted Transferee in
connection with a Transfer (or series of related Transfers) in excess of 2.5%
of such Institutional Shareholder's Initial Ownership of the class of Equity
Securities to be transferred, such party must be acceptable to THL, which
acceptance may not be unreasonably withheld and which acceptance shall not be
required for the Transfer by KECALP Inc. of all of its Equity Securities to
Merrill Lynch KECALP International L.P. 1997, a Cayman Islands limited
partnership; provided, further, however, that the foregoing proviso shall not
be applicable if the number of Shares of a class of Equity Securities to be
Transferred by an Institutional Shareholder pursuant to clause (C), (D) or
(E), together with all other Transfers of such class of Equity Securities by
such Institutional Shareholder and its Permitted Transferees pursuant to any
of such clauses, is less than (I) the aggregate number of Shares of such class
of Equity Securities Transferred by the THL Entities and their THL Designated
Transferees in accordance with clause (A) or (B) of the definition of "THL
Designated Transferees" multiplied by (II) such Institutional Shareholders'
Initial Proportionate Equity Interest of such class, treating for purposes of
this proviso the Equity Warrants as part of the class of Common Stock, or
(ii) in the case of a Management Shareholder (A) the
Company, (B) any THL Entity, (C) a spouse or lineal descendant (whether
natural or adopted), sibling, parent, heir, executor, administrator,
testamentary trustee, lifetime trustee, legatee or beneficiary of any of such
Management Shareholder, (D) any trust, the beneficiaries of which, or any
corporation, limited liability company or partnership, stockholders, members
or general or limited partners of which include only the Persons named in
clause (B) or (C), (E) bona fide financial institutions, to the extent that
such transfer is in connection with a pledge in connection with a borrowing
arrangement unrelated to a constructive or synthetic sale, such as any hedge,
sale or purchase of any derivative security or other action (other than
Transfers expressly permitted by the terms hereof) having the effect of
reducing a Management Shareholder's economic interest in Equity Securities or
reducing a Management Shareholder's exposure to a decrease in fair market value
of Equity Securities, or other similar transaction involving such Management
Shareholder's Equity Securities, or (F) a charitable institution as defined in
Section 501(c) of the Internal Revenue Code of 1986, as amended, which
receives a bona fide gift of Shares, which when aggregated with all other
Transfers of Shares of such class of Equity Securities by such Management
Shareholder and its Permitted Transferees pursuant to this clause (F) does not
exceed 10% of such Management Shareholders' Initial Ownership of such class of
Equity Securities.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Primary Executives" means the following Management
Shareholders: Paul M. Montrone and Paul M. Meister.
"Public Offering" means any primary or secondary public
offering of shares of Common Stock pursuant to an effective registration
statement under the Securities Act other than pursuant to a registration
statement filed in connection with a transaction of the type described in Rule
145 of the Securities Act or for the purpose of issuing securities pursuant to
an employee benefit plan.
"Qualifying Public Offering" means a Public Offering
yielding aggregate gross proceeds of at least $50,000,000.
"Registrable Securities" means at any time, with respect to
any Shareholder or its Permitted Transferees, any shares of Common Stock then
owned by such Shareholder or its Permitted Transferees until (i) a
registration statement covering such securities has been declared effective by
the SEC and such securities have been disposed of pursuant to such effective
registration statement, (ii) such securities are sold under circumstances in
which all of the applicable conditions of Rule 144 (or any similar provisions
then in force) under the Securities Act are met or (iii) such securities are
otherwise Transferred, the Company has delivered a new certificate or other
evidence of ownership for such securities not bearing the legend required
pursuant to this Agreement and such securities may be resold without
subsequent registration under the Securities Act.
"Registration Expenses" means (i) all registration and
filing fees, (ii) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the securities registered), (iii) printing
expenses, (iv) internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (v) reasonable fees and disbursements of counsel
for the Company and customary fees and expenses for independent certified
public accountants retained by the Company (including expenses relating to any
comfort letters or costs associated with the delivery by independent certified
public accountants of a comfort letter or comfort letters requested pursuant
to Section 5.4(h) hereof), (vi) the reasonable fees and expenses of any
special experts retained by the Company in connection with such registration,
(vii) reasonable fees and expenses of up to one counsel for the Shareholders
participating in the offering, (viii) fees and expenses in connection with any
review of underwriting arrangements by the National Association of Securities
Dealers, Inc. (the "NASD") including fees and expenses of any "qualified
independent underwriter" and (ix) fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but shall not include
any underwriting fees, discounts, commissions or transfer taxes attributable to
the sale of Registrable Securities, or any out-of-pocket expenses (except as
set forth in clause (vii) above) of the Shareholders or any fees and expenses
of underwriter's counsel.
"Regulated Stockholder" shall mean Chase Equity Associates,
L.P. and any other Stockholder (i) that is subject to the provisions of
Regulation Y or Regulation K of the Federal Reserve Board, 12 C.F.R. Part 225
(or any successor to such Regulations) and (ii) that holds Equity Securities
of the Company and (iii) that has provided written notice to the Company of
its status as a "Regulated Stockholder" hereunder.
"Regulatory Problem" means any set of facts or circumstance
wherein it has been asserted by any governmental regulatory agency (or a
Regulated Stockholder reasonably believes that there is a risk of such
assertion) that such Regulated Stockholder is not entitled to acquire, own,
hold or control, or exercise any significant right (including the right to
vote) with respect to, any Equity Securities of the Company or any subsidiary
of the Company.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Shareholder" means each Person (other than the Company but
including the Equity Investors and the Management Shareholders) who are or
shall become a party to this Agreement, whether in connection with the
execution and delivery hereof as of the date hereof, pursuant to Section 7.3
or otherwise, so long as such Person shall beneficially own any Equity
Securities.
"Shares" means shares of Common Stock and other Equity
Securities held by the Shareholders on the date hereof or acquired hereafter,
but excluding any Derivatives.
"Subscription Agreement" means each Subscription Agreement
of even date herewith between FSI and each of the Equity Investors.
"Subsidiary" means, with respect to any Person, any entity
of which securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person.
"THL Designated Transferee" means (A) any general or limited
partner of the THL Entities (a "THL Partner"), and any corporation,
partnership, or other entity which is an Affiliate of the THL Entities or any
THL Partner (collectively, the "THL Affiliates"), (B) any managing director,
general partner, director, limited partner, officer or employee of the THL
Entities or a THL Affiliate, or the heirs, executors, administrators,
testamentary trustees, lifetime trustees, legatees or beneficiaries of any of
the foregoing Persons referred to in this clause (B) (collectively, "THL
Associates"), (C) a charitable institution as defined in Section 501(c) of the
Internal Revenue Code of 1986, as amended, which receives a bona fide gift by
a THL Individual of Shares (D) a bank, financial institution or other lender
which receives a bona fide pledge by a THL Individual of Shares, and (E) any
trust, the beneficiaries of which, or any corporation, limited liability
company or partnership, the stockholders, members or general or limited
partners of which include only the THL Entities, THL Affiliates, THL
Associates, their spouses or their lineal descendants. The term "THL
Entities," to the extent the THL Entities shall have Transferred any of its
Shares to "THL Designated Transferees," shall mean the THL Entities and the
THL Designated Transferees of the THL Entities, taken together, and any right
or action that may be exercised or taken at the election of the THL Entities
may be exercised or taken at the election of the THL Entities and such THL
Designated Transferees, unless otherwise restricted by the THL Entity engaging
in such a transfer.
"THL Individuals" means the Persons listed on Schedule I and
Schedule II.
"Underwritten Public Offering" means a firmly underwritten
public offering of Registrable Securities of the Company pursuant to an
effective registration statement under the Securities Act.
(b) Each of the following terms is defined in the Section
set forth opposite such term:
Term Section
---- -------
Cause 2.2
Confidential Information 6.1(b)
DLJ Entities Representative 7.11(b)
Drag-Along Notice 4.2(b)
Drag-Along Notice Period 4.2(b)
Drag-Along Portion 4.2(a)
Drag-Along Rights 4.2(a)
Drag-Along Sale 4.2(a)
Drag-Along Sale Price(s) 4.2(b)
ethical wall 6.1(a)
Holders 5.1(b)
Indemnified Party 5.7
Indemnifying Party 5.7
Initial Proportionate
Equity Interest 3.4
Inspectors 5.4(g)
Institutional Shareholder
Demand Registration 5.1(g)
Management Representative 7.11(d)
Management Transfer 3.5(a)
Maximum Offering Size 5.1(e)
Merrill Lynch Entities
Representative 7.11(c)
New Securities 4.3(a)
Nominee 2.3(a)
Offer Price 3.6(a)
Offered Shares 3.6(a)
Offeror 3.6(a)
Option Period 3.6(a)
Piggyback Registration 5.2(a)
Preemptive Rights Notice 4.3(a)
Preemptive Rights Portion 4.3(a)
Primary Executive Demand
Registration 5.1(h)
Records 5.4(g)
Representatives 6.1(b)
Shareholder 7.3(a)
Tag-Along Notice 4.1(b)
Tag-Along Notice Period 4.1(b)
Tag-Along Offer 4.1(b)
Tag-Along Person 4.1(a)
Tag-Along Portion 4.1(b)
Tag-Along Response Notice 4.1(b)
Tag-Along Right 4.1(b)
Tag-Along Sale 4.1(a)
Tag-Along Shareholder 4.1(a)
Third Party Purchase Notice 4.4
Third Party Purchase Portion 4.4
THL Demand Registration 5.1(a)
THL Entities Representative 7.11(a)
THL Entity Shareholder 7.3(d)
Threshold Percentage 4.1(a)
Transfer 3.1(a)
Transfer Notice 3.6(a)
Trigger Date 6.4
ARTICLE II
CORPORATE GOVERNANCE AND MANAGEMENT
Section 2.1 Composition of the Board. The Board shall
consist of at least 10, but no more than 11, members (two of which shall be
individuals which are not "Affiliates" or "Associates" (as those terms are used
within the meaning of Rule 12b-2 of the General Rules and Regulations under
the Exchange Act) of any Shareholder or its Affiliates), of whom seven shall
be nominated by THL, one shall be nominated by DLJMB, one shall be Paul M.
Montrone and one shall be Paul M. Meister. Each Shareholder entitled to vote
for the election of directors to the Board agrees that it will vote its shares
of Common Stock or execute consents, as the case may be, and take all other
necessary action (including causing the Company to call a special meeting of
shareholders) in order to ensure that the composition of the Board is as set
forth in this Section 2.1; provided that, no Shareholder shall be required to
vote for another Shareholder's nominee or Mr. Montrone or Mr. Meister if the
number of shares of Common Stock held by (i) Mr. Montrone and Mr. Meister
collectively, or (ii) such other Shareholder making the nomination
collectively with its Affiliates, as applicable, is, at the close of business
on the day preceding such vote or execution of consents, less than 10% of such
party's or parties' Initial Ownership of shares of Common Stock on a Fully
Diluted basis; and, provided further, that for so long as Messrs. Montrone and
Meister collectively own 10% or more of their collective Initial Ownership of
shares of Common Stock on a Fully Diluted basis, designees nominated by THL
and the Equity Investors shall be selected in good faith after consultation
with Messrs. Montrone and Meister, which consultation shall involve a
consideration of Messrs. Montrone and Meister's views relating to the Company.
The initial Board shall consist of the individuals listed on Schedule III
hereto.
Section 2.2 Removal. Each Shareholder agrees that if, at
any time, it is then entitled to vote for the removal of directors of the
Company, it will not vote any of its shares of Common Stock in favor of the
removal of any director who shall have been designated or nominated pursuant
to Section 2.1 unless such removal shall be for Cause or such director or the
Person(s) entitled to designate or nominate such director shall have consented
to such removal in writing, provided that if the Persons entitled to designate
or nominate any director pursuant to Section 2.1 shall request the removal,
with or without Cause, of such director in writing, such Shareholder shall
vote its shares of Common Stock in favor of such removal. Removal for "Cause"
shall mean removal of a director because of such director's (a) willful and
continued failure substantially to perform his duties with the Company in his
established position, (b) willful conduct which is injurious to the Company or
any of its Subsidiaries, monetarily or otherwise, or (c) conviction for, or
guilty plea to, a felony or a crime involving moral turpitude.
Section 2.3 Vacancies. If, as a result of death,
disability, retirement, resignation, removal (with or without Cause) or
otherwise, there shall exist or occur any vacancy on the Board:
(a) the Shareholder(s) entitled under Section 2.1 to
nominate such director whose death, disability, retirement,
resignation or removal resulted in such vacancy, may, subject to
the provisions of Section 2.1, nominate another individual (the
"Nominee") to fill such vacancy and serve as a director of the
Company;
(b) subject to Section 2.1, each Shareholder then entitled
to vote for the election of the Nominee as a director of the
Company agrees that it will vote its shares of Common Stock, or
execute a written consent, as the case may be, in order to ensure
that the Nominee be elected to the Board; and
(c) in the case of removal of either of the Primary
Executives from the Board, the other Primary Executive, if he is
still a member of the Board, shall be entitled to nominate an
individual to fill the resulting vacancy, and the provisions of
Section 2.3(b) shall apply to the election of such nominee.
Section 2.4 Action by the Board. (a) A quorum of the
Board shall consist initially of three directors; provided that THL shall have
the right, subject to applicable law or regulation, in its sole discretion,
until such time as THL owns less than 25% of its Initial Ownership of shares
of Common Stock, to increase or decrease the number of directors necessary to
constitute a quorum.
(b) All actions of the Board shall require the
affirmative vote of at least a majority of the directors at a duly convened
meeting of the Board at which a quorum is present or the unanimous written
consent of the Board; provided that, in the event there is a vacancy on the
Board and an individual has been nominated to fill such vacancy, the first
order of business shall be to fill such vacancy.
Section 2.5 Conflicting Charter or Bylaw Provision. Each
Shareholder shall vote its shares of Common Stock, and shall take all other
actions reasonably necessary, to ensure that the Company's certificate of
incorporation and bylaws (copies of which are attached hereto as Exhibits A
and B) facilitate and do not at any time conflict with any provision of this
Agreement.
ARTICLE III
RESTRICTIONS ON TRANSFER
Section 3.1 General. (a) Each Equity Investor understands
and agrees that the shares of Common Stock purchased pursuant to the
Subscription Agreement and the Equity Warrants received pursuant to the Equity
Warrant Acquisition Agreement have not been registered under the Securities
Act and are restricted securities. Each Shareholder agrees that it will not,
directly or indirectly, sell, assign, transfer, grant a participation in,
pledge or otherwise dispose of ("Transfer") any Shares or Equity Warrants (or
solicit any offers to buy or otherwise acquire, or take a pledge of any Shares
or Equity Warrants) except in compliance with the Securities Act and the terms
and conditions of this Agreement.
(b) Any attempt by any Shareholder to Transfer any
Shares or Equity Warrants not in compliance with this Agreement shall be null
and void and the Company shall not, and shall cause any transfer agent not to,
give any effect in the Company's stock records to such attempted Transfer.
(c) Notwithstanding anything herein to the contrary,
except as may be otherwise set forth in the applicable instrument, Derivatives
(other than the Equity Warrants) shall be transferable only by will, law of
descent or distribution or pursuant to Section 4.2 hereof.
Section 3.2 Legends. (a) In addition to any other legend
that may be required, each certificate for Shares that is issued to any
Shareholder shall bear a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED
OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
ADDITIONAL LIMITATIONS OR RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
INVESTORS' AGREEMENT DATED AS OF JANUARY 21, 1998, COPIES OF WHICH MAY BE
OBTAINED UPON REQUEST FROM FISHER SCIENTIFIC INTERNATIONAL INC. OR ANY
SUCCESSOR THERETO."
(b) If any Shares shall cease to be Registrable
Securities under clause (i) or clause (ii) of the definition thereof, the
Company shall, upon the written request of the holder thereof, issue to such
holder a new certificate evidencing such Shares without the first sentence of
the legend required by Section 3.2(a) endorsed thereon. If any Shares cease
to be subject to any and all limitations or restrictions on Transfer set forth
in this Agreement, the Company shall, upon the written request of the holder
thereof, issue to such holder a new certificate evidencing such Shares without
the second sentence of the legend required by Section 3.2(a) endorsed thereon.
Section 3.3 Permitted Transferees; Transfers by THL
Entities. Notwithstanding anything in this Agreement to the contrary, (a) any
Non-THL Shareholder may at any time Transfer any or all of its Shares or Equity
Warrants to one or more of its Permitted Transferees so long as (i) such
Permitted Transferee shall have agreed in writing to be bound by the terms of
this Agreement pursuant to Section 7.3 and (ii) the Transfer to such Permitted
Transferee is not in violation of applicable federal or state securities laws
and (b) any THL Entity may at any time Transfer any or all of its Shares or
Equity Warrants to any third party (including THL Designated Transferees) so
long as (i) the Transfer is in compliance with Section 4.1 hereof, (ii) if the
transferee is to be treated as a THL Designated Transferee, such transferee
shall have agreed in writing to be bound by the terms of this Agreement
pursuant to Section 7.3 and (iii) the Transfer is not in violation of
applicable federal or state securities laws.
Section 3.4 Restrictions on Transfers by Institutional
Shareholders. Except as provided in Section 3.3, each Institutional
Shareholder and each Permitted Transferee of such Institutional Shareholder may
Transfer its Shares and Equity Warrants only as follows:
(i) in a Transfer made in compliance with Section 4.1
or 4.2;
(ii) in a Public Offering in connection with the
exercise of its rights under Article 5 hereof;
(iii) following the earlier to occur of (A) the date
on which the Percentage Ownership of such Institutional
Shareholder and its Permitted Transferees is less than 25% of its
Initial Ownership of shares of Common Stock and (B) the seventh
anniversary of the Closing Date, to any Person other than any
Adverse Person; or
(iv) in a Transfer made after an Initial Public
Offering in compliance with Rule 144 under the Securities Act;
provided, however, notwithstanding the foregoing, the
Institutional Shareholder may not Transfer an aggregate number of
Shares of such class of Equity Securities that, together with all
prior Transfers of such class by such Institutional Shareholder
and its Permitted Transferees pursuant to one or more Rule 144
Transfers, represents more than (A) the aggregate number of Shares
of such class Transferred by the THL Entities and their THL
Designated Transferees (other than, in either case, to THL
Designated Transferees) multiplied by (B) such Institutional
Shareholders' Initial Proportionate Equity Interest of such class;
provided, further, that, for purposes of this subsection (iv), the
Equity Warrants shall be treated as part of the class of shares of
Common Stock and the calculations described herein shall include
the number of shares of Common Stock issuable upon exercise of
such Equity Warrants. The "Initial Proportionate Equity Interest"
of a party is such party's Initial Ownership of such class divided
by the Initial Ownership of THL of such class.
Section 3.5 Restrictions on Transfers by Management
Shareholders. (a) Except as provided in Section 3.3, each Management
Shareholder and each Permitted Transferee of such Management Shareholder may
Transfer its Shares only as follows or as set forth in Section 3.5(b):
(i) in a Transfer made in compliance with Section 4.1
or 4.2;
(ii) in a Public Offering in connection with the
exercise of its rights under Article 5 hereof;
(iii) in a Transfer made after an Initial Public
Offering in compliance with Rule 144 under the Securities Act;
provided, however, notwithstanding the foregoing, the Management
Shareholder may not Transfer an aggregate number of Shares of any
class of Equity Securities that, together with all prior Transfers
of such class by such Management Shareholder and its Permitted
Transferees pursuant to one or more Rule 144 Transfers, represents
more than (A) the aggregate number of Shares of such class
Transferred by the THL Entities and their THL Designated
Transferees (other than, in either case, to THL Designated
Transferees) multiplied by (B) such Management Shareholders'
Initial Proportionate Equity Interest of such class;
(iv) following the tenth anniversary of the Closing
Date to any Third Party other than an Adverse Person; or
(v) subject to Section 3.6, a Transfer by a Management
Shareholder to another Management Shareholder (a "Management
Transfer").
(b) Each Management Shareholder and each Permitted
Transferee of such Management Shareholder may Transfer its Shares to any
Person other than an Adverse Person upon the occurrence of a Qualifying Public
Offering.
Section 3.6 Company Right of First Refusal. (a) If a
Management Shareholder (an "Offeror") desires to Transfer Shares to another
Management Shareholder pursuant to the provisions of Section 3.5(a)(v):
(i) such Offeror shall give notice of such offer (the
"Transfer Notice") to the Company. The Transfer Notice shall
state the terms and conditions of such offer, including the name
of the prospective purchaser, the proposed purchase price per
share of such Shares (the "Offer Price"), payment terms (including
a description of any proposed non-cash consideration), the type of
disposition and the number of such Shares to be transferred
("Offered Shares"). The Transfer Notice shall further state that
the Company may acquire, in accordance with the provisions of this
Agreement, any of the Offered Shares for the price and upon the
other terms and conditions, including deferred payment (if
applicable), set forth therein.
(ii) For a period of ten Business Days after receipt of the
Transfer Notice (the "Option Period"), the Company may, by notice
in writing to the Offeror delivering such Transfer Notice, elect in
writing to purchase all, but not less than all, of the Offered
Shares at the Offer Price. The closing of the purchase of Shares
pursuant to Section 3.5, shall take place at the principal office
of the Company on the tenth day after the expiration of the Option
Period. At such Closing, the Company shall deliver to the
Offeror, against delivery of certificates duly endorsed and stock
powers representing the Shares being acquired by the Company, the
Offer Price, on the same terms as set forth in the Transfer Notice
(including any non-cash consideration described therein), payable
in respect of the Shares being purchased by the Company. All of
the foregoing deliveries will be deemed to be made simultaneously,
and none shall be deemed completed until all have been completed.
(b) The provisions of Section 3.6(a) shall not apply to a
Management Shareholder (other than a Primary Executive) if such Management
Shareholder Transfers Shares aggregating, with all other prior Transfers of
Shares by such Management Shareholder, an amount less than 25% of such
Management Shareholder's Initial Ownership.
Section 3.7 Notifications Regarding Transfers. To the
extent that either an Institutional Shareholder proposes a Transfer pursuant
to Section 3.4(iv) or a Management Shareholder proposes a Transfer pursuant to
Section 3.5(a)(iii), such Shareholder shall provide notice to THL at least
five Business Days prior to the proposed Transfer Date of the number of Shares
proposed to be Transferred. Not less that two Business Days prior to the
proposed Transfer Date, THL shall notify such Shareholder of whether the
Transfer is believed to be permitted based on the formulas set forth in Section
3.4(iv) or 3.5(a)(iii), as applicable.
ARTICLE IV
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS
Section 4.1 Rights to Participate in Transfer. (a) If the
THL Entities propose to Transfer (a "Tag-Along Sale") shares of a class of
Equity Securities, other than Transfers of shares of such class (i) in a
Public Offering pursuant to the exercise of their rights under Article 5, (ii)
to any THL Designated Transferee or (iii) up to the Threshold Percentage, the
Non-THL Shareholders may, at their option, elect to exercise their rights
under this Section 4.1 (each such Shareholder, a "Tag-Along Person); provided,
however, that the exception set forth in clause (iii) shall not apply to the
Primary Executives. The "Threshold Percentage" shall equal 5% in the
aggregate of the THL Entities' Initial Ownership of such class of Equity
Securities.
(b) In the event of a proposed Transfer in accordance
with paragraph (a) above, THL shall provide each Non-THL Shareholder written
notice of the terms and conditions of such proposed Transfer ("Tag-Along
Notice") at least 10 days prior to such proposed Transfer and offer each
Tag-Along Person the opportunity to participate in such sale. The Tag-Along
Notice shall identify the number of shares of such class of Equity Securities
to be sold in the Tag-Along Sale ("Tag-Along Offer"), the price at which the
Transfer is proposed to be made, and all other material terms and conditions
of the Tag-Along Offer, including the form of the proposed agreement, if any.
From the date of the Tag-Along Notice, each Tag-Along Person shall have the
right (a "Tag-Along Right"), exercisable by written notice ("Tag-Along
Response Notice") given to THL within 5 Business Days (the "Tag-Along Notice
Period"), to request that THL include in the proposed Transfer the number of
shares of such class of Equity Securities held by such Tag-Along Person as is
specified in such notice; provided that if the aggregate number of shares of
such class of Equity Securities proposed to be sold by the THL Entities and all
Tag-Along Persons in such transaction exceeds the number of shares of such
class of Equity Securities which can be sold on the terms and conditions set
forth in the Tag-Along Notice, then only the Tag-Along Portion of shares of
the THL Entities and each Tag-Along Person shall be sold pursuant to the
Tag-Along Offer. "Tag-Along Portion" means, with respect to any class of
Equity Securities, the number of shares of such class held (or, without
duplication, that such Shareholder has the right to acquire from any Person)
by the Tag-Along Person or THL, as the case may be, multiplied by a fraction,
the numerator of which is the maximum number of shares of such class subject
to the Tag-Along Offer and the denominator of which is the aggregate number of
shares of such class on a Fully Diluted basis owned by all Shareholders. In
the event the THL Entities shall propose to Transfer a number of shares of
such class in excess of the Threshold Percentage, the Tag-Along Portion shall
be calculated with respect to all of the shares proposed to be Transferred by
the THL Entities. To the extent that the Tag-Along Notice provides that
shares of Common Stock and Equity Warrants will be transferred (i) the Equity
Warrants and the Common Stock shall be treated as part of a single class of
Equity Securities and, if applicable, Equity Warrants are referred to in this
Section 4.1 as "shares" of such class, (ii) the calculations described in this
Section 4.1 with respect to such Tag-Along Notice shall include the number of
shares of Common Stock issuable upon exercise of such Equity Warrants and
(iii) the allocation between Equity Warrants and shares of Common Stock
subject to the Tag-Along Rights will be proportional to the allocation of the
number of Shares subject to the Tag-Along Notice as compared with the number
of Equity Warrants subject to the Tag-Along Notice.
(c) If the Tag-Along Persons exercise their Tag-Along
Rights hereunder, each Tag-Along Person shall deliver, together with its
Tag-Along Response Notice, to THL the certificate or certificates representing
the Shares of such Tag-Along Person to be included in the Transfer, together
with a limited power-of-attorney authorizing THL to Transfer such Shares on
the terms set forth in the Tag-Along Notice. It is understood that to the
extent THL can do so without affecting the other terms on which the Tag-Along
Sale is proposed to be made, THL will seek to exclude from the terms of such
Tag-Along Sale any material restrictions on the ability, following such
Tag-Along Sale, of any Tag-Along Person to conduct its business in a manner
consistent with past practice. Delivery of such certificate or certificates
representing the shares to be Transferred and the limited power-of-attorney
authorizing THL to Transfer such shares shall constitute an irrevocable
acceptance of the Tag-Along Offer by such Tag-Along Persons. If, at the end
of a 120 day period after such delivery, THL has not completed the Transfer of
all such shares on substantially the same terms and conditions set forth in
the Tag-Along Notice, THL shall return to each Tag-Along Person the limited
power-of-attorney (and all copies thereof) together with all certificates
representing the shares which such Tag-Along Person delivered for Transfer
pursuant to this Section 4.1.
(d) Concurrently with the consummation of the
Tag-Along Sale, THL shall notify the Tag-Along Persons thereof, shall remit to
the Tag-Along Persons the total consideration (by bank or certified check) for
the Shares of the Tag-Along Persons Transferred pursuant thereto, and shall,
promptly after the consummation of such Tag-Along Sale furnish such other
evidence of the completion and time of completion of such Transfer and the
terms thereof as may be reasonably requested by the Tag-Along Persons.
(e) If at the termination of the Tag-Along Notice
Period any Tag-Along Person shall not have elected to participate in the
Tag-Along Sale, such Tag-Along Person will be deemed to have waived its rights
under Section 4.1(a), with respect to the Transfer of its securities pursuant
to such Tag-Along Sale.
(f) If any Tag-Along Person declines to exercise its
Tag-Along Rights or elects to exercise its Tag-Along Rights with respect to
less than such Tag-Along Person's Tag-Along Portion, the THL Entities shall be
entitled to Transfer, pursuant to the Tag-Along Offer, a number of shares held
by the THL Entities equal to the number of shares constituting the portion of
such Tag-Along Person's Tag-Along Portion with respect to which Tag-Along
Rights were not exercised.
(g) THL may sell, on behalf of the THL Entities and
any Tag-Along Person who exercises the Tag-Along Rights pursuant to this
Section 4.1, the shares subject to the Tag-Along Offer on the terms and
conditions set forth in the Tag-Along Notice within 120 days of the date on
which Tag-Along Rights shall have been waived, exercised or expire.
Section 4.2 Right to Compel Participation in Certain
Transfers. (a) If (i) the THL Entities propose to Transfer not less than 50%
of their Initial Ownership of Common Stock to a Third Party in a bona fide
sale or (ii) the THL Entities propose a Transfer in which the shares of Common
Stock to be Transferred by Shareholders constitute more than 50% of the
outstanding shares of Common Stock (a "Drag-Along Sale"), THL may at its option
require all Shareholders to sell all Equity Securities proposed to be sold
therein ("Drag-Along Rights") then held by every Non-THL Shareholder, and
(subject to and at the closing of the Drag-Along Sale) to compel to exercise
all, but not less than all, of the Derivatives (whether then vested or
unvested) held by every Non-THL Shareholder and to sell all of the Shares
received upon such exercise to such Third Party, for the same consideration
and otherwise on the same terms and conditions as the THL Entities; provided,
that any Non-THL Shareholder who holds Derivatives the exercise price per
share of which is greater than the per share price at which the Shares are to
be sold to the Third Party may, if required by THL to exercise such
Derivatives, in place of such exercise, submit to irrevocable cancellation
thereof without any liability for payment of any exercise price with respect
thereto; provided, further, that, upon such Drag-Along Sale, the Primary
Executives shall have the right, but not the obligation, to require the Equity
Investors to, at THL's option, either arrange for the purchase by a third
party or purchase directly all of the Shares held by such Primary Executive as
a condition to consummation of such Drag-Along Sale and, in which case the
number of shares to be sold by each Equity Investor will be reduced on a
proportional basis. The number of shares of each class of Equity Securities
to be sold by each Non-THL Shareholder will be the Drag-Along Portion of the
shares of such class that such Non-THL Shareholder owns. "Drag-Along Portion"
means, with respect to any Non-THL Shareholder and any class of Equity
Securities, the number of Shares of such class of Equity Securities
beneficially owned by such Non-THL Shareholder multiplied by a fraction, the
numerator of which is the number of shares of such class of Equity Securities
proposed to be sold by the THL Entities on behalf of the THL Entities and the
Non-THL Shareholders (as reduced by the number of shares of such class of
Equity Securities to be sold by the Primary Executives in excess of their pro
rata interest) and the denominator of which is the total number of shares of
such class of Equity Securities beneficially owned by the Shareholders. In
the event the Drag-Along Sale is not consummated with respect to any shares
acquired upon exercise of Derivatives, such Derivatives shall be deemed not to
have been exercised or cancelled, as applicable. To the extent the Drag-Along
Sale relates to Derivatives, and THL determines not to compel the exercise
thereof, the Derivatives shall be treated as a separate class of Equity
Securities and, if applicable, Derivatives are referred to in this Section 4.2
as "shares" of such class.
(b) THL shall provide written notice of such
Drag-Along Sale to the Non-THL Shareholders (a "Drag-Along Notice") not later
than the fifteenth day prior to the proposed Drag-Along Sale. The Drag-Along
Notice shall identify the Transferee, the number of shares of any class of
Equity Securities, the consideration for which a Transfer is proposed to be
made for each class of Equity Securities (the "Drag-Along Sale Price(s)") and
all other material terms and conditions of the Drag-Along Sale. Subject to
Section 4.2(d), each Non-THL Shareholder shall be required to participate in
the Drag-Along Sale on the terms and conditions set forth in the Drag-Along
Notice and to tender all its Shares as set forth below. It is understood that
to the extent THL can do so without affecting the other terms on which the
Drag-Along Sale is proposed to be made, THL will seek to exclude from the
terms of such Drag-Along Sale any material restrictions on the ability,
following such Drag-Along Sale, of any Non-THL Shareholder to conduct its
business in a manner consistent with past practice. The price(s) payable in
such Transfer shall be the Drag-Along Sale Price(s). Not later than the tenth
day following the date of the Drag-Along Notice (the "Drag-Along Notice
Period"), each of the Non-THL Shareholders shall deliver to a representative
of THL designated in the Drag-Along Notice certificates representing all the
Shares beneficially owned and held by such Non-THL Shareholder, duly endorsed,
(or evidence of title and ownership of any Derivative which are subject to the
Drag-Along Sale but which are not exercised in connection therewith) together
with all other documents required to be executed in connection with such
Drag-Along Sale, or if such delivery is not permitted by applicable law, an
unconditional agreement to deliver such shares pursuant to this Section 4.2 at
the closing for such Drag-Along Sale against delivery to such Non-THL
Shareholder of the consideration therefor. If a Non-THL Shareholder should
fail to deliver such certificates to THL, the Company shall cause the books
and records of the Company to show that such shares are bound by the
provisions of this Section 4.2 and that such shares shall be Transferred to
the purchaser of the shares immediately upon surrender for Transfer by the
holder thereof.
(c) The THL Entities shall have a period of 90 days
from the date of receipt of the Drag-Along Notice to consummate the Drag-Along
Sale on the terms and conditions set forth in such Drag-Along Sale Notice. If
the Drag-Along Sale shall not have been consummated during such period, THL
shall return to each of the Non-THL Shareholders all certificates or other
evidence of title and ownership representing shares that such Non-THL
Shareholder delivered for Transfer pursuant hereto, together with any
documents in the possession of THL executed by the Non-THL Shareholder in
connection with such proposed Transfer, and all the restrictions on Transfer
contained in this Agreement or otherwise applicable at such time with respect
to shares owned by the Non-THL Shareholders shall again be in effect.
(d) Concurrently with the consummation of the
Transfer of shares pursuant to this Section 4.2, THL shall give notice thereof
to all Shareholders, shall remit to each of the Shareholders who have
surrendered their certificates or other evidence of title and ownership the
total consideration (by bank or certified check) for the shares Transferred
pursuant hereto and shall furnish such other evidence of the completion and
time of completion of such Transfer and the terms thereof as may be reasonably
requested by such Shareholders.
(e) Notwithstanding any provision of this Agreement
to the contrary, in the event the terms on which a Drag-Along Sale is proposed
to be made shall include a provision which materially and adversely affects
the ability of any Non-THL Shareholder to compete in any line of business or
geographic area, such Non-THL Shareholder shall not be required to participate
in the Drag-Along Sale on the terms and conditions set forth in the Drag-Along
Notice. In the event any Shareholder shall elect, pursuant to the preceding
sentence, not to participate in the Drag-Along Sale, THL Entities and their
THL Designated Transferees shall have the right to purchase, and such
Shareholder shall be obligated to sell to the THL Entities and their THL
Designated Transferees such Shareholder's shares, at the Drag-Along Sale
Price(s) and on substantially the same terms (other than any such non-compete
provision), not later than immediately prior to the consummation of the
Drag-Along Sale. Except as provided above, in connection with any Drag-Along
Sale, all Shareholders shall be subject to (i) the same terms and conditions
of sale and (ii) the same indemnity, contribution, hold-back, escrow or similar
obligations.
Section 4.3 Preemptive Rights. (a) The Company shall
provide each Shareholder with a written notice (a "Preemptive Rights Notice")
of any proposed issuance by the Company of Equity Securities at least 10 days
prior to the proposed issuance date. Such notice shall specify the price at
which the Equity Securities are to be issued and the other material terms of
the issuance.
(i) In the event the Company shall issue any New
Common Securities or New Preferred Securities (collectively, the
"New Securities") to any third party (including any Shareholder)
prior to a Qualifying Public Offering, the THL Entities and each
Management Shareholder shall be entitled to purchase, at the price
and on the terms at which such New Securities are proposed to be
issued and specified in such Preemptive Rights Notice, the THL
Entities' or such Management Shareholder's Preemptive Rights
Portion of such class of the New Securities proposed to be issued.
"Preemptive Rights Portion" means, with respect to New Common
Securities, the pro rata portion of New Common Securities proposed
to be issued by the Company, which amount shall be based upon such
Shareholder's Initial Ownership of shares of Common Stock as a
percentage of the sum of the Initial Ownership of shares of Common
Stock of (A) the THL Entities, (B) all Institutional Shareholders
and (C) all Management Shareholders and, with respect to New
Preferred Securities, the pro rata portion of New Preferred
Securities proposed to be issued by the Company, which amount
shall be based upon such Shareholder's Initial Ownership of shares
of Preferred Stock as a percentage of the sum of the Initial
Ownership of shares of Preferred Stock of (A) the THL Entities and
(B) all Institutional Shareholders.
(ii) In the event that the Company shall issue any
New Securities to any third party (including any Shareholder)
following a Qualifying Public Offering, the THL Entities shall
be entitled to purchase, at the price and on the terms at which
such New Securities are proposed to be issued and specified in
such Preemptive Rights Notice, the THL Entities' Preemptive
Rights Portion of such class of the New Securities proposed to
be issued.
(iii) In the event the THL Entities propose to
purchase any New Securities from the Company pursuant to 4.3(a)(i)
or (ii) or otherwise, (A) prior to a Qualifying Public Offering,
each Institutional Shareholder, and (B) following a Qualifying
Public Offering, each Non-THL Shareholder shall be entitled to
purchase, at the price and on the terms at which the THL Entities
propose to purchase such New Securities and specified in such
Preemptive Rights Notice, such Shareholder's Preemptive Rights
Portion of such class of the New Securities proposed to be issued
in the transaction giving rise to the THL Entities' proposed
purchase of New Securities; provided, however, such Shareholders
shall not be entitled to purchase New Securities unless the THL
Entities complete the purchase of New Securities in accordance
with the Preemptive Rights Notice.
A Shareholder may exercise its rights under this Section 4.3
by delivering written notice of its election to purchase New Securities to the
Company, THL and each Non-THL Shareholder within five days of receipt of the
Preemptive Rights Notice. A delivery of such a written notice (which notice
shall specify the number of New Securities to be purchased by the Shareholder
submitting such notice) by such Shareholder shall constitute a binding
agreement of such Shareholder to purchase, subject to the purchase by THL of
its portion of such New Securities, at the price and on the terms specified in
the Preemptive Rights Notice, the number of New Securities specified in such
Shareholder's written notice.
(b) In the event any Non-THL Shareholder declines to
exercise its preemptive rights under this Section 4.3 or elects to exercise
such rights with respect to less than such Shareholder's Preemptive Rights
Portion, the THL Entities shall have the right to purchase, or any Non-THL
Shareholder designated by THL shall have the right to purchase, from the
Company the number of New Securities constituting the Preemptive Rights
Portion with respect to which such Non-THL Shareholder shall not have
exercised its preemptive rights.
(c) In the case of any issuance of New Securities,
the Company shall have 90 days from the date of the Preemptive Rights Notice
to consummate the proposed issuance of any or all of such New Securities which
the Shareholders have not elected to purchase at the price and upon terms that
are not materially less favorable to the Company than those specified in the
Preemptive Rights Notice. At the consummation of such issuance, the Company
shall issue certificates representing the New Securities to be purchased by
each Shareholder exercising preemptive rights pursuant to this Section 4.3
registered in the name of such Shareholder, against payment by such
Shareholder of the purchase price for such New Securities. If the Company
proposes to issue New Securities after such 90-day period, it shall again
comply with the procedures set forth in this Section.
(d) Notwithstanding the foregoing, no Shareholder
shall be entitled to purchase New Securities as contemplated by this Section
4.3 in connection with issuances of New Securities (i) to employees of the
Company or any Subsidiary pursuant to employee benefit plans or arrangements
approved by the Board (including upon the exercise of employee stock options),
or (ii) in connection with any bona fide, arm's-length restructuring or
refinancing of outstanding indebtedness (including convertible indebtedness)
of the Company or any Subsidiary. The Company shall not be under any
obligation to consummate any proposed issuance of New Securities, regardless
of whether it shall have delivered a Preemptive Rights Notice in respect of
such proposed issuance.
(e) The Company will use its reasonable best efforts
to provide the Preemptive Rights Notice at least 15 Business Days prior to any
proposed issuance of New Securities. In the event it is impracticable to
provide the Preemptive Rights Notice at least 15 Business Days prior to such
issuance, any Shareholder may offer to finance or arrange to finance the
purchase by any other Shareholder of such other Shareholder's Preemptive Rights
Portion and such financing or arranging Shareholder shall be entitled to
receive as compensation for such services reasonable and customary fees and
expenses. No Shareholder shall be under any obligation to provide or arrange
such financing for any other Shareholder.
Section 4.4. Certain Other Purchases of Equity Securities.
In the event, at any time after the date hereof and prior to the Trigger Date,
the THL Entities shall acquire any Equity Securities from any Person other
than the Shareholders, THL shall deliver, within five Business Days of the
date of such acquisition, a notice to each Equity Investor (a "Third Party
Purchase Notice") specifying the class of Equity Securities, the number of
shares of such class acquired and the weighted average of price per share paid
by the THL Entities. Such Third Party Purchase Notice shall constitute an
offer to each such Shareholder to purchase such Shareholder's Third Party
Purchase Portion of the number of shares of such class acquired by the THL
Entities. A Shareholder may exercise its rights under this Section 4.4 by
delivering written notice of its election to purchase its Third Party Purchase
Portion within ten days of receipt of the Third Party Purchase Notice. A
delivery of such written notice (which shall specify the number of shares of
such class of Equity Securities to be purchased by the Shareholder submitting
such notice) by such Shareholder shall constitute a binding agreement of such
Shareholder to purchase, at the price and on the terms specified in the Third
Party Purchase Notice, the number of shares of a class of Equity Securities
specified in such notice. At the consummation of the Transfer of the shares
of a class of Equity Securities purchased by the THL Entities to any
Shareholder that has exercised its right hereunder, the THL Entities shall
deliver to such Shareholder certificates or other evidence of title and
ownership representing the shares such class of Equity Securities to be
purchased against payment by such Shareholder of the purchase price for such
shares of Equity Securities. "Third Party Purchase Portion" means, with
respect to any Shareholder at any time, the number of shares of the class of
Equity Securities purchased by the THL Entities in a transaction subject to
Section 4.4, multiplied by a fraction, the numerator of which is (i) the
number of shares of such class of Equity Securities on a Fully Diluted basis
that such Shareholder beneficially owns at such time, and the denominator of
which is (ii) the total number of shares of such class of Equity Securities on
a Fully Diluted basis beneficially owned at such time by all Equity Investors.
To the extent the Third Party Purchase Notice relates to Derivatives, such
Derivatives shall be treated as a separate class of Equity Securities and, if
applicable, Derivatives are referred to in this Section 4.4 as "shares" of
such class.
ARTICLE V
REGISTRATION RIGHTS
Section 5.1 Demand Registration. (a) If the Company shall
receive a written request by THL that the Company effect the registration
under the Securities Act of all or a portion of the THL Entities' Registrable
Securities, and specifying the intended method of disposition thereof, then
the Company shall promptly give written notice of such requested registration
(a "THL Demand Registration") at least five days prior to the anticipated
filing date of the registration statement relating to such THL Demand
Registration to the Non-THL Shareholders and thereupon will use its best
efforts to effect, as expeditiously as possible, the registration under the
Securities Act of:
(i) the Registrable Securities of the THL Entities
which the Company has been so requested to register; and
(ii) subject to the restrictions set forth in Section
5.2, all other Registrable Securities of the same class as that to
which THL's request relates for which an effective Piggyback
Registration (as such term is defined in Section 5.2) request has
been made;
provided, that subject to Section 5.1(d) hereof, the Company shall not be
obligated to effect more than six THL Demand Registrations. In no event will
the Company be required to effect more than one THL Demand Registration within
any four-month period.
(b) Promptly after the expiration of the 2-day
period referred to in Section 5.2(a) hereof, the Company will notify all the
Shareholders to be included in the THL Demand Registration (the "Holders") of
the other Holders and the number of Registrable Securities requested to be
included therein. THL may, at any time prior to the effective date of the
registration statement relating to such registration, revoke such request,
without liability to any of the other Holders, by providing a written notice
to the Company revoking such request, in which case such request, so revoked,
shall not be considered a THL Demand Registration.
(c) The Company will pay all Registration Expenses in
connection with any THL Demand Registration.
(d) A registration requested pursuant to this Section
5.1 shall not be deemed to have been effected (i) unless the registration
statement relating thereto (A) has become effective under the Securities Act
and (B) has remained effective for a period of at least 180 days (or such
shorter period in which all Registrable Securities of the Holders included in
such registration have actually been sold thereunder); provided, that if after
any registration statement requested pursuant to this Section 5.1 becomes
effective (x) such registration statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or other
governmental agency or court and (y) less than 75% of the Registrable
Securities included in such registration statement has been sold thereunder,
such registration statement shall not be considered a THL Demand Registration,
or (ii) if the Maximum Offering Size (as defined below) is reduced in
accordance with Section 5.1(e) such that less than 66 2/3% of the Registrable
Securities of the THL Entities sought to be included in such registration are
included.
(e) If a THL Demand Registration involves an
Underwritten Public Offering and the managing underwriter shall advise the
Company and THL that, in its view, (i) the number of shares of Registrable
Securities requested to be included in such registration (including any
securities which the Company proposes to be included which are not Registrable
Securities) or (ii) the inclusion of some or all of the shares of Registrable
Securities owned by the Holders, in any such case, exceeds the largest number
of shares which can be sold without having an adverse effect on such offering,
including the price at which such shares can be sold (the "Maximum Offering
Size"), the Company will include in such registration, in the priority listed
below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested by THL
to be registered and all Registrable Securities requested to be
included in such registration by any other Holder pursuant to an
effective Piggyback Registration request (allocated, if necessary
for the offering not to exceed the Maximum Offering Size, pro rata
among the THL Entities and such Holders on the basis of the
relative number of Registrable Securities held by such
Shareholder); and
(B) second, any securities proposed to be registered
by the Company.
provided, however, that in such case, any Holder may elect to withdraw such
Holder's Registrable Securities from the registration.
(f) Upon written notice to THL, the Company may
postpone effecting a registration pursuant to this Section 5.1 on one occasion
during any period of six consecutive months for a reasonable time specified in
the notice but not exceeding 90 days (which period may not be extended or
renewed), if (i) an investment banking firm of recognized national standing
shall advise the Company and THL in writing that effecting the registration
would materially and adversely affect an offering of securities of the Company
the preparation of which had then been commenced or (ii) the Company has a
bona fide business reason for determining that it is in possession of material
non-public information the disclosure of which during the period specified in
such notice the Company believes, in its reasonable judgment, would not be in
the best interests of the Company.
(g) After the Company has effected two Demand
Registrations pursuant to this Section 5.1 of Common Stock, the Institutional
Shareholders, upon request of such Institutional Shareholders owning a
majority of the Shares acquired by such Institutional Shareholders on the
Closing Date, may request that the Company register shares of Registrable
Securities then owned by such Institutional Shareholders (an "Institutional
Shareholder Demand Registration"). In no event will the Company be required
to effect more than one such Institutional Shareholder Demand Registration.
The provisions of this Article 5 shall apply, mutatis mutandis, to any such
Institutional Shareholder Demand Registration.
(h) After the Transfer of Shares of Common Stock
representing more than 20% of the Shares collectively owned by the Equity
Investors of the Initial Ownership on a Fully Diluted basis owned by such
Equity Investors, the Primary Executives may request that the Company register
Shares which are Registrable Securities then owned by them (a "Primary
Executive Demand Registration"). In no event will the Company be required to
effect more than three such Primary Executive Demand Registrations. The
provisions of this Article 5 shall apply, mutatis mutandis, to any such
Primary Executive Demand Registration; provided, that, notwithstanding
anything to the contrary herein, (i) no Primary Executive Demand Registrations
may be made during the six month period following the Effective Time or within
six months after the effective date any other registration statement (other
than registration statement on From S-4 or S-8 or similar form), and (ii) the
Company must use its best efforts to effect such Primary Executive Demand
Registration as soon as practicable, but in no event later than 120 days
following the date of the demand.
Section 5.2 Piggyback Registration. (a) If the Company
proposes to register any Equity Securities under the Securities Act, whether
or not for sale for its own account (including pursuant to a Demand
Registration), in connection with a public offering (other than a public
offering pursuant to a registration statement filed in connection with a
transaction of the type described in Rule 145 of the Securities Act or for the
purpose of issuing securities pursuant to an employee benefit plan) it will
each such time, subject to the provisions of Section 5.2(b) hereof, give
prompt written notice at least five days prior to the anticipated filing date
of the registration statement relating to such registration to all
Shareholders and their respective Permitted Transferees (or, in the case of a
Demand Registration to all Shareholders and their Permitted Transferees other
than the Shareholder making the demand), which notice shall set forth such
Shareholders' rights under this Section 5.2 and shall offer all Shareholders
the opportunity to include in such registration statement such number of
shares of Common Stock as each such Shareholder may request (a "Piggyback
Registration"). Upon the written request of any such Shareholder made within
2 days (one of which shall be a Business Day) after the receipt of notice from
the Company (which request shall specify the number of Registrable Securities
intended to be disposed of by such Shareholder), the Company will use its
reasonable best efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so requested to register
by such Shareholders, to the extent requisite to permit the disposition of the
Registrable Securities so to be registered; provided, that (i) if such
registration involves an Underwritten Public Offering, all such Shareholders
requesting to be included in the Company's registration must sell their
Registrable Securities to the underwriters selected as provided in Section
5.4(f) on the same terms and conditions as apply to the Company or the other
selling Shareholder, as applicable, and (ii) if, at any time after giving
written notice of its intention to register on its own behalf any stock and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register such stock, the Company shall give written notice to all such
Shareholders and, thereupon, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration. No
registration effected under this Section 5.2 on behalf of the Company shall
relieve the Company of its obligations to effect a Demand Registration, to the
extent required by Section 5.1 hereof. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 5.2.
(b) If a registration pursuant to this Section 5.2
involves an Underwritten Public Offering (other than in the case of an
Underwritten Public Offering resulting from a Demand Registration, in which
case the provisions with respect to priority of inclusion in such offering set
forth in Section 5.1(e) shall apply) and the managing underwriter advises the
Company that, in its view, the number of shares of Common Stock which the
Company and the selling Shareholders intend to include in such registration
exceeds the Maximum Offering Size, the Company will include in such
registration, in the following priority, up to the Maximum Offering Size:
(i) first, so much of the Equity Securities proposed
to be registered for the account of the Company as would not cause
the offering to exceed the Maximum Offering Size; and
(ii) second, all Registrable Securities requested to
be included in such registration by any Shareholder pursuant to an
effective Piggyback Registration request (allocated, if necessary
for the offering not to exceed the Maximum Offering Size, pro rata
among such Shareholders on the basis of the relative number of
shares of Registrable Securities held by such Shareholder).
Section 5.3 Holdback Agreements. With respect to each and
every firmly Underwritten Public Offering, each Shareholder (collectively with
all of its Affiliates which are Shareholders) owning Shares representing more
than 1% of the then outstanding Shares (including Shares which would be held
upon any conversion or exercise of rights) agrees, and their Permitted
Transferees will agree, not to offer or sell any Shares (except for Shares, if
any, sold in that Public Offering) during the period which commences on the
14th day prior to the effective date of the applicable registration statement
for a public offering of Shares (except as part of such registration) and ends
on the earlier of: (i) 180 days after the effective date of the registration
statement or (ii) any such shorter period as the Company and the lead managing
underwriter of an Underwritten Public Offering agree.
Section 5.4 Registration Procedures. Whenever Shareholders
request that any Registrable Securities be registered pursuant to Section 5.1
or 5.2 hereof, the Company will, subject to the provisions of such Sections,
use its best efforts, or reasonable best efforts, as the case maybe, to effect
the registration and the sale of such Registrable Securities in accordance
with the intended method of disposition thereof as quickly as practicable, and
in any event within 60 days of the date of demand and in connection with any
such request:
(a) The Company will as expeditiously as possible prepare
and file with the SEC a registration statement on any form
selected by counsel for the Company and which form shall be
available for the sale of the Registrable Securities to be
registered thereunder in accordance with the intended method of
distribution thereof, and use its best efforts to cause such filed
registration statement to become and remain effective for a period
of not less than 180 days (or such shorter period in which all of
the Registrable Securities of the Holders included in such
registration statement shall have actually been sold thereunder).
(b) The Company will, if requested, prior to filing a
registration statement or prospectus or any amendment or
supplement thereto, furnish to each Shareholder and each
underwriter, if any, of the Registrable Securities covered by such
registration statement copies of such registration statement as
proposed to be filed, and thereafter the Company will furnish to
such Shareholder and underwriter, if any, such number of copies of
such registration statement, each amendment and supplement thereto
(in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in
such registration statement (including each preliminary
prospectus) and such other documents as such Shareholder or
underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such
Shareholder. Each Shareholder shall have the right to request
that the Company modify any information contained in such
registration statement, amendment and supplement thereto
pertaining to such Shareholder and the Company shall use its
reasonable best efforts to comply with such request; provided,
however, that the Company shall not have any obligation to so
modify any information if so doing would cause the prospectus to
contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) After the filing of the registration statement, the
Company will (i) cause the related prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, (ii) comply
with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance
with the intended methods of disposition by the sellers thereof
set forth in such registration statement or supplement to such
prospectus and (iii) promptly notify each Shareholder holding
Registrable Securities covered by such registration statement of
any stop order issued or threatened by the SEC or any state
securities commission under state blue sky laws and take all
reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(d) The Company will use its best efforts to (i) register
or qualify the Registrable Securities covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions in the United States as the Managing Underwriter or
any Shareholder or Shareholders holding such Registrable
Securities reasonably (in light of such Shareholder's intended
plan of distribution) requests and (ii) cause such Registrable
Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue
of the business and operations of the Company and do any and all
other acts and things that may be reasonably necessary or
advisable to enable such Shareholder to consummate the disposition
of the Registrable Securities owned by such Shareholder; provided,
however, that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d), (B)
subject itself to taxation in any such jurisdiction or (C) consent
to general service of process in any such jurisdiction.
(e) The Company will immediately notify each Shareholder
holding such Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the
occurrence of an event requiring the preparation of a supplement
or amendment to such prospectus so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus
will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading and promptly prepare
and make available to each such Shareholder and file with the SEC
any such supplement or amendment.
(f) In connection with (i) (A) any THL Demand Registration
or (B) any registration by the Company of Registrable Securities,
the Company shall appoint the underwriter or underwriters chosen
by THL and (ii) (A) any Institutional Shareholder Demand
Registration or (B) any Primary Executive Demand Registration, the
Company shall appoint the underwriter or underwriters chosen by
Shareholders holding the majority of the Registrable Securities to
be registered; provided, that the underwriter or underwriters
identified in accordance with clauses (ii)(A) and (ii)(B) shall be
reasonably acceptable to the Company. The Company will enter into
customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of
such Registrable Securities, including the engagement of a
"qualified independent underwriter" in connection with the
qualification of the underwriting arrangements with the NASD.
(g) Upon execution of confidentiality agreements in form
and substance reasonably satisfactory to the Company, the Company
will make available for inspection by any Shareholder and any
underwriter participating in any disposition pursuant to a
registration statement being filed by the Company pursuant to this
Section 5.4 and any attorney, accountant or other professional
retained by any such Shareholder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively,
the "Records") as shall be reasonably requested by any such
Person, and cause the Company's officers, directors and employees
to supply all information reasonably requested by any Inspectors
in connection with such registration statement.
(h) The Company will furnish to each such Shareholder and
to each such underwriter, if any, a signed counterpart, addressed
to such underwriter and the participating Shareholders, of (i) an
opinion or opinions of counsel to the Company and (ii) a comfort
letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of
the type customarily covered by opinions or comfort letters, as the
case may be, as a majority of such Shareholders or the managing
underwriter therefor reasonably requests.
(i) The Company will otherwise use its best efforts to
comply with all applicable rules and regulations of the SEC and
the relevant state blue sky commissions, and make available to its
securityholders, as soon as reasonably practicable, an earnings
statement covering a period of 12 months, beginning within three
months after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(j) The Company may require each such Shareholder to
promptly furnish in writing to the Company information regarding
the distribution of the Registrable Securities as the Company may
from time to time reasonably request and such other information
as may be legally required in connection with such registration.
(k) Each such Shareholder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind
described in Section 5.4(e) hereof, such Shareholder will
forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable
Securities until such Shareholder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5.4(e)
hereof, and, if so directed by the Company, such Shareholder will
deliver to the Company all copies, other than any permanent file
copies then in such Shareholder's possession, of the most recent
prospectus covering such Registrable Securities at the time of
receipt of such notice. In the event that the Company shall give
such notice, the Company shall extend the period during which such
registration statement shall be maintained effective (including
the period referred to in Section 5.4(a) hereof) by the number of
days during the period from and including the date of the giving
of notice pursuant to Section 5.4(e) hereof to the date when the
Company shall make available to such Shareholder a prospectus
supplemented or amended to conform with the requirements of Section
5.4(e) hereof.
(l) The Company will use its best efforts to list such
Registrable Securities on any securities exchange on which the
Common Stock is then listed or on NASDAQ if the Common Stock is
then quoted on NASDAQ not later than the effective date of such
registration statement.
Section 5.5 Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Shareholder holding Registrable
Securities covered by a registration statement, its officers, directors,
employees, partners and agents, and each Person, if any, who controls such
Shareholder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (and officers, directors, employees, partners and
agents of such controlling Persons) from and against any and all losses,
claims, damages, joint or several liabilities or expenses (including
reasonable attorneys' fees and expenses and reasonable costs of investigation)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission so made in strict conformity with
information furnished in writing to the Company by such Shareholder or on such
Shareholder's behalf expressly for use therein; provided that with respect to
any untrue statement or omission or alleged untrue statement or omission made
in any preliminary prospectus, or in any final prospectus, as the case may be,
the indemnity agreement contained in this paragraph shall not apply to the
extent that any such loss, claim, damage, liability or expense results from
the fact that a current copy of the final prospectus (or, in the case of a
final prospectus, the final prospectus as amended or supplemented) was not
sent or given to the Person asserting any such loss, claim, damage, liability
or expense at or prior to the written confirmation of the sale of the
Registrable Securities concerned to such Person if it is determined that the
Company has provided such current copy of such final prospectus (or such
amended or supplemented prospectus, as the case may be) to such Shareholder in
a timely manner prior to such sale and it was the responsibility of such
Shareholder under the Securities Act to provide such Person with a current
copy of the prospectus (or such amended or supplemented prospectus, as the case
may be) and such current copy of the final prospectus (or such amended or
supplemented prospectus, as the case may be) would have cured the defect
giving rise to such loss, claim, damage, liability or expense. The Company
also agrees to indemnify any underwriters of the Registrable Securities, their
officers and directors and each person who controls such underwriters on
substantially the same basis as that of the indemnification of the Shareholders
provided in this Section 5.5.
Section 5.6 Indemnification by Participating Shareholders.
Each Shareholder holding Registrable Securities included in any registration
statement agrees, severally but not jointly, to indemnify and hold harmless
the Company, its officers, directors and agents and each Person (other than
such Shareholder) if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such
Shareholder, but only (i) with respect to information furnished in writing by
such Shareholder or on such Shareholder's behalf expressly for use in any
registration statement or prospectus relating to the Registrable Securities,
or any amendment or supplement thereto, or any preliminary prospectus or (ii)
to the extent that any loss, claim, damage, liability or expense described in
Section 5.5 results from the fact that a current copy of the final prospectus
(or, in the case of a prospectus, the prospectus as amended or supplemented)
was not sent or given to the Person asserting any such loss, claim, damage,
liability or expense at or prior to the written confirmation of the sale of
the Registrable Securities concerned to such Person if it is determined that
it was the responsibility of such Shareholder to provide such Person with a
current copy of the final prospectus (or such amended or supplemented
prospectus, as the case may be) and such current copy of the final prospectus
(or such amended or supplemented prospectus, as the case may be) would have
cured the defect giving rise to such loss, claim, damage, liability or
expense. Each such Shareholder shall be prepared, if required by the
underwriting agreement, to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 5.6. As a condition
to including Registrable Securities in any registration statement filed in
accordance with Article 5 hereof, the Company may require that it shall have
received an undertaking reasonably satisfactory to it from any underwriter to
indemnify and hold it harmless to the extent customarily provided by
underwriters with respect to similar securities.
No Shareholder shall be liable under Section 5.6 for any
damage thereunder in excess of the net proceeds realized by such Shareholder
in the sale of the Registrable Securities of such Shareholder.
Section 5.7 Conduct of Indemnification Proceedings. In
case any proceeding (including any governmental investigation) shall be
instituted involving any Person in respect of which indemnity may be sought
pursuant to this Article 5, such Person (an "Indemnified Party") shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory
to such Indemnified Party, and shall assume the payment of all fees and
expenses; provided that the failure of any Indemnified Party so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of its obligations
hereunder except to the extent that the Indemnifying Party is materially
prejudiced by such failure to notify. In any such proceeding, any Indemnified
Party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (ii) in the reasonable
judgment of such Indemnified Party representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for
the Indemnified Parties, such firm shall be designated in writing by the
Indemnified Parties. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any and all losses, claims, damages, liabilities and
expenses or liability (to the extent stated above) by reason of such
settlement or judgment. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability arising out of such proceeding.
Section 5.8 Contribution. If the indemnification provided
for in this Article 5 is held by a court of competent jurisdiction to be
unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein, then each such Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (i) as between the Company and the Shareholders holding
Registrable Securities covered by a registration statement and their related
Indemnified Parties on the one hand and the underwriters and their related
Indemnified Parties on the other, in such proportion as is appropriate to
reflect the relative benefits received by the Company and such Shareholders on
the one hand and the underwriters on the other, from the offering of the
Shareholders' Registrable Securities, or if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits but also the relative fault of the Company and such
Shareholders on the one hand and of such underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations and (ii) as between the Company and their related Indemnified
Parties on the one hand and each such Shareholder and their related Indemnified
Parties on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of each such Shareholder in connection with
such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by the Company and such
Shareholders on the one hand and such underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and such Shareholders bear to the total underwriting
discounts and commissions received by such underwriters, in each case as set
forth in the table on the cover page of the prospectus. The relative fault of
the Company and such Shareholders on the one hand and of such underwriters on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company and such Shareholders or by such underwriters. The relative fault
of the Company on the one hand and of each such Shareholder on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Shareholders agree that it would not be
just and equitable if contribution pursuant to this Section 5.8 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages or liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 5.8 no
underwriter shall be required to contribute any amount in excess of the
underwriting discount applicable to securities purchased by such underwriter
in such offering, less the aggregate amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Shareholder
shall be required to contribute any amount in excess of the amount by which
the net proceeds realized on the sale of the Registrable Securities of such
Shareholder exceeds the amount of any damages which such Shareholder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each Shareholder's obligation to contribute
pursuant to this Section 5.8 is several in the proportion that the proceeds of
the offering received by such Shareholder bears to the total proceeds of the
offering received by all such Shareholders and not joint.
Section 5.9 Participation in Public Offering. No Person
may participate in any Underwritten Public Offering hereunder unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and the
provisions of this Agreement in respect of registration rights.
Section 5.10 Cooperation by the Company. In the event any
Shareholder shall Transfer any Registrable Securities pursuant to Rule 144A
under the Securities Act, the Company shall cooperate, to the extent
commercially reasonable, with such Shareholder and shall provide to such
Shareholder such information as such Shareholder shall reasonably request.
Section 5.11 No Transfer of Registration Rights. None of
the rights of Shareholders under this Article 5 shall be assignable by any
Shareholder to any Person acquiring securities of such Shareholder in any
Public Offering or pursuant to Rule 144A of the Securities Act.
ARTICLE VI
CERTAIN COVENANTS AND AGREEMENTS
Section 6.1 Confidentiality. (a) Each Shareholder hereby
agrees that Confidential Information (as defined below) furnished and to be
furnished to it was and will be made available in connection with such
Shareholder's investment in the Company. Each Shareholder agrees that it will
use the Confidential Information only in connection with its investment in the
Company and not for any other purpose. Each Shareholder further acknowledges
and agrees that it will not disclose any Confidential Information to any
Person; provided that Confidential Information may be disclosed (i) to such
Shareholder's Representatives (as defined below) in the normal course of the
performance of their duties or to any financial institution providing credit
to such Shareholder, (ii) to the extent required by applicable law, rule or
regulation (including complying with any oral or written questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process to which a Shareholder is subject;
provided that such Shareholder gives the Company prompt notice of such
request(s), to the extent practicable, so that the Company may seek an
appropriate protective order or similar relief (and the Shareholder shall
cooperate with such efforts by the Company, and shall in any event make only
the minimum disclosure required by such law, rule or regulation)), (iii) to
any Person to whom such Shareholder is contemplating a Transfer of its Shares
(provided that such Transfer would not be in violation of the provisions of
this Agreement and as long as such potential Transferee is advised of the
confidential nature of such information and agrees to be bound by a
confidentiality agreement in form and substance satisfactory to the Company
(it being understood that a confidentiality agreement consistent with the
provisions hereof shall be satisfactory to the Company)) or (iv) if the prior
written consent of the Board shall have been obtained. Nothing contained
herein shall prevent the use (subject, to the extent possible, to a protective
order) of Confidential Information in connection with the assertion or defense
of any claim by or against the Company or any Shareholder. Notwithstanding
the foregoing, each Shareholder or Affiliate of a Shareholder who engages
principally in the business of effecting or recommending transactions, either
as a principal or as agent on behalf of third parties, in, relating to or
involving securities (including public securities of the Company or its
subsidiaries) and including, without limitation, transactions in which such
Shareholder or Affiliate may act as an investment advisor, an investment
company, a broker or dealer in securities, an underwriter or placement agent
of securities, a market maker, a specialist, an arbitrageur, a block
positioner or a provider of securities research, may engage in such activities
with respect to securities of the Company so long as, prior to engaging in any
such activities (i) such Shareholder has established an effective "ethical
wall" between individuals receiving Confidential Information and those
individuals (including Affiliates) involved in effectuating trades or other
transactions involving such securities of the Company or its subsidiaries,
which "ethical wall" is designed to prevent any transfer, directly or
indirectly, of Confidential Information and (ii) such purchases, sales,
dealings or other transactions are made only in accordance with such "ethical
wall" policies and procedures in accordance with applicable law, rule or
regulation.
(b) "Confidential Information" means any information
concerning the Company and Persons which are or become its subsidiaries or the
financial condition, business, operations or prospects of the Company and
Persons which are or become its subsidiaries in the possession of or furnished
to any Shareholder (including, without limitation by virtue of its present or
former right to designate a director of the Company); provided that the term
"Confidential Information" does not include information which (i) is or
becomes generally available to the public other than as a result of a
disclosure by a Shareholder or its partners, directors, officers, employees,
agents, counsel, investment advisers or representatives (all such persons
being collectively referred to as "Representatives") in violation of the
Merger Agreement or this Agreement, (ii) is or was available to such
Shareholder on a nonconfidential basis prior to its disclosure to such
Shareholder or its Representatives by the Company or (iii) was or becomes
available to such Shareholder on a non-confidential basis from a source other
than the Company, provided that such source is or was (at the time of receipt
of the relevant information) not, to the best of such Shareholder's knowledge,
bound by a confidentiality agreement with (or other confidentiality obligation
to) the Company or another Person.
Section 6.2 Reports. The Company will furnish all the
Equity Investors with the quarterly and annual financial reports that the
Company is required to file with the Securities and Exchange Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act promptly after the
filing thereof or, in the event the Company is not required to file such
reports, quarterly and annual reports containing the same information as would
be required in such reports on the date that such reports would otherwise be
filed.
Section 6.3 Limitations on Subsequent Registration. The
Company shall not enter into any agreement with any holder or prospective
holder of any securities of the Company (a) which conflicts with the provision
of Article V, (b) that would allow such holder or prospective holder to
include such securities in any registration filed pursuant to Section 5.1 or
5.2 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only
to the extent that the inclusion of such securities would not reduce the
amount of the Registrable Securities of the Shareholders included therein or
(c) on terms otherwise more favorable than this Agreement.
Section 6.4 Limitation on Purchase of Equity Securities.
Until the earlier to occur of (i) the seventh anniversary of the Closing Date
or (ii) the date on which at least 40% of the outstanding Common Stock on a
Fully Diluted basis of the Company is held by Persons other than the
Shareholders (the "Trigger Date"), no Non-THL Shareholder shall acquire any
Equity Securities except if (A) with respect to each Institutional
Shareholder, such Shareholder may acquire Equity Securities in a purchase of
Equity Securities pursuant to Section 4.3 or 4.4 hereof, (B) with respect to
each Management Shareholder, such Shareholder may acquire Equity Securities
either in a purchase of Equity Securities pursuant to Section 4.3 or 4.4
hereof or in any other transaction so long as THL has been notified at least
five Business Days in advance and if given a reasonable opportunity to consult
with such Shareholder prior to the purchase or (C) in a Transfer from any
other Non-THL Shareholder which is otherwise permitted under the terms of
Article 3 hereof.
Section 6.5 Regulated Stockholders.
(a) If a Regulated Stockholder determines that it has a
Regulatory Problem, the Company agrees to take all such actions, subject to
Applicable Law, as are reasonably requested by such Regulated Stockholder (i)
to effectuate and facilitate any transfer by such Regulated Stockholder of any
Equity Securities of the Company then held by such Regulated Stockholder to
any Person designated by such Regulated Stockholder, (ii) to permit such
Regulated Stockholder (or any Affiliate of such Regulated Stockholder) to
exchange all or any portion of the voting Equity Securities then held by such
Person on a share-for-share basis for shares of a class of non-voting Equity
Securities of the Company, which non-voting Equity Securities, except that
such new Equity Securities shall be non-voting and shall be convertible into
voting Equity Securities on such terms as are requested by such Regulated
Stockholder in light of regulatory considerations then prevailing, and (iii)
to continue and preserve the respective allocation of the voting interests
with respect to the Company provided for in this Agreement and with respect to
such Regulated Stockholder's ownership of the Company's voting Equity
Securities. Such actions may include, without limitation, (x) entering into
such additional agreements as are reasonably requested by such Regulated
Stockholder to permit any Person(s) designated by such Regulated Stockholder
to exercise any voting power which is relinquished by such Regulated
Stockholder upon any exchange of voting Equity Securities for non-voting
Equity Securities of the Company, and (y) entering into such additional
agreements, adopting such amendments to the charter documents of the Company
and taking such additional actions as are reasonably requested by such
Regulated Stockholder in order to effectuate the intent of the foregoing.
(b) If a Regulated Stockholder has the right or opportunity
to acquire any of the Company's Equity Securities from the Company, any
Stockholder or any other Person (as the result of a preemptive offer, pro rata
offer or otherwise), at such Regulated Stockholder's request, the Company will
offer to sell (or if the Company is not the seller, to cooperate with the
seller and such Regulated Stockholder to permit such seller to sell) such
non-voting Equity Securities on the same terms as would have existed had such
Regulated Stockholder acquired the Equity Securities so offered and immediately
requested their exchange for non-voting Equity Securities pursuant to clause
(a) above.
(c) The Company agrees not to amend or waive the voting or
other provisions of this Agreement or the Company's charter documents if such
amendment or waiver would cause any Regulated Stockholder to have a Regulatory
Problem; provided that any such Regulated Stockholder notifies the Company
that it would have a Regulatory Problem promptly after it has notice of such
amendment or waiver.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Entire Agreement. This Agreement, the Merger
Agreement, the Subscription Agreement and the Equity Warrant Acquisition
Agreement constitute the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersede all prior and contemporaneous
agreements and understandings, both oral and written, between the parties with
respect to the subject matter hereof and thereof.
Section 7.2 Binding Effect; Benefit. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, legal representatives and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any
Person other than the parties hereto, and their respective heirs, successors,
legal representatives and permitted assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
Section 7.3 Assignability. (a) Neither this Agreement nor
any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by the Company or any Shareholder; provided that any
Person acquiring shares of Common Stock who is required by the terms of this
Agreement to become a party hereto shall execute and deliver to the Company an
agreement to be bound by this Agreement and shall thenceforth be a
"Shareholder."
(b) Any Permitted Transferee of a Management
Shareholder who shall become a party hereto shall be deemed a "Management
Shareholder."
(c) Any Permitted Transferee of an Institutional
Shareholder who shall become a party to this Agreement shall be deemed an
"Institutional Shareholder."
Section 7.4 Amendment; Waiver; Termination. (a) No
provision of this Agreement may be waived except by an instrument in writing
executed by the party against whom the waiver is to be effective. No
provision of this Agreement may be amended or otherwise modified except by an
instrument in writing executed by the Company with approval of the Board of
Directors and holders of at least 50% of the shares of Common Stock held by the
parties to this Agreement at the time of such proposed amendment or
modification. Notwithstanding the foregoing or any other provision of this
Agreement, THL may at any time, including after completion of a Qualifying
Public Offering, and without any other action by any other party, effectuate
an amendment to this Agreement to delete in its entirety Section 4.3(a);
provided, however, that if THL causes such Section to be deleted, so long as
the THL Entities own at least 10% of their Initial Ownership of shares of
Common Stock, the THL Entities shall not purchase any New Securities from the
Company unless the Company offers each Non-THL Shareholder the right to
participate in the purchase of such New Securities in accordance with Section
4.3(a)(iii) as if it continued to be in effect.
(b) In addition, any amendment or modification of any
provision of this Agreement that would adversely affect THL may be effected
only with the consent of THL.
(c) In addition, any amendment or modification of any
provision of this Agreement that would adversely affect any (i) Institutional
Shareholder may be effected only with the consent of such Institutional
Shareholders holding at least 66 2/3% of the shares of Common Stock held by
such Institutional Shareholders or (ii) Management Shareholder may be effected
only with the consent of the Management Shareholders (which must include the
Primary Executives) holding at least 50% of the shares of Common Stock held by
the Management Shareholders.
(d) This Agreement shall terminate on the tenth
anniversary of the date hereof unless earlier terminated.
Section 7.5 Notices. (a) All notices and other
communications given or made pursuant hereto or pursuant to any other
agreement among the parties, unless otherwise specified, shall be in writing
and shall be deemed to have been duly given and received when sent by fax
(with confirmation in writing via first class U.S. mail) or delivered
personally or on the third Business Day after being sent by registered or
certified U.S. mail (postage prepaid, return receipt requested) to the
parties at the fax number or address set forth below or at such other
addresses as shall be furnished by the parties by like notice:
(i) if to the Company, to:
Fisher Scientific International, Inc.
Liberty Lane
Hampton, New Hampshire 03842
Attention: Todd M. DuChene, Esq.
Fax: (603) 929-2703
(ii) if to a Management Shareholder who holds Equity
Securities exclusively through the Rabbi Trust, to such
Shareholder's attention at the following address:
Mellon Bank
1 Mellon Bank Building
500 Grant Street
Pittsburgh, Pennsylvania 15219
Fax: (412)236-4222
(iii) if to any other Management Shareholder, to such
Shareholder's attention at the following address:
Fisher Scientific International, Inc.
Liberty Lane
Hampton, New Hampshire 03842
Fax: (603) 929-2703
(iv) if to a THL Associate, to such Shareholder's attention
at the following address:
Thomas H. Lee Company
75 State Street
Suite 2600
Boston, Massachusetts 02109
Fax: (617) 227-3514
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Eric L. Cochran, Esq.
Fax: (212) 735-2000
(v) if to any other Shareholder, to such Shareholder at the
address specified by such Shareholder on the signature pages
of this Agreement.
Any Shareholder may change its notice address by providing
notice to the Company with a copy, in the case of the Non-THL Shareholders, to
Thomas H. Lee Company
75 State Street
Suite 2600
Boston, Massachusetts 02109
Attention: Anthony J. DiNovi
Fax: (617) 227-3514
Any Person who becomes a Shareholder shall provide its
address and fax number to the Company, which shall promptly provide such
information to each Non-THL Shareholder.
(b) Notices required to be given pursuant to Sections
5.1(a) and 5.1(b) and Section 5.2 by the Company shall be deemed given only if
such notices are also be given telephonically and by fax to the following
persons (or any other individual the respective entities may designate in
writing to the Company to replace such person):
(i) for the benefit of the THL Entities, to Anthony
J. DiNovi (tel: 617-227-1050; fax: 617-227-3514), with a copy to
Eric L. Cochran (tel: 212-735-2596; fax: 212-735-2000);
(ii) for the benefit of the Management Shareholders,
to Todd DuChene (tel: 603-926-2340; fax: 603-929-2703), with a
copy to Eric Press (tel: 212-403-1314; fax: 212-403-2000);
(iii) for the benefit of the DLJ Entities, to
Thompson Dean (tel: 212-892-4460; fax: 212-892-7272) and Kirk
Wortman (tel: 212-892-7041; fax: 212-892-7272), with a copy to
George R. Bason, Jr. (tel: 212-450-4000; fax: 212-450-4800);
(iv) for the benefit of Chase Equity, to Jonas
Steinman (tel: 212-622-3028; fax: 212-622-3101), with a copy to
John J. Suydam (tel: 212-408-2471; fax 212-408-2420);
(v) for the benefit of the Merrill Lynch Entities, to
Robert Tully (tel: 212-236-7304; fax: 212-236-7360) and Margaret
Nelson (tel: 212-449-9812; fax: 212-449-9813), with a copy to
Deborah Zajkowski (tel: 212-449-2973; fax: 212-449-1119).
Section 7.6 Headings. The headings contained in this
Agreement are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
Section 7.7 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
Section 7.8 Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to the conflicts of laws rules of such state.
Section 7.9 Specific Performance. Each party hereto
acknowledges that the remedies at law of the other parties for a breach or
threatened breach of this Agreement would be inadequate and, in recognition of
this fact, any party to this Agreement, without posting any bond, and in
addition to all other remedies which may be available, shall be entitled to
obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy which may then be available.
Section 7.10 Consent to Jurisdiction; Expenses. (a) Any
suit, action or proceeding seeking to enforce any provision of, or based on
any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in any Federal Court sitting
in the State of Delaware or any Delaware State court sitting in Delaware, and
each of the parties hereby consents to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or that any
such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party by any method provided
in Section 7.5 shall be deemed effective service of process on such party and
consents to the personal jurisdiction of any Federal Court sitting in the
State of Delaware, or any Delaware State court sitting in Delaware.
(b) In any dispute arising under this Agreement among any
of the parties hereto, the costs and expenses (including, without limitation,
the reasonable fees and expenses of counsel) incurred by the prevailing party
shall be paid by the party that does not prevail.
Section 7.11 Representative.
(a) Each THL Entities hereby designates and appoints
(and each Permitted Transferee of each such THL Entities is hereby deemed to
have so designated and appointed) each of Anthony J. DiNovi, Scott Sperling and
Kent Weldon, as his attorney-in-fact with full power of substitution for each
of them (the "THL Entities' Representative"), to serve as the representative
of each such person to perform all such acts as are required, authorized or
contemplated by this Agreement to be performed by such person and hereby
acknowledges that the THL Entities' Representative shall be the only person
authorized to take any action so required, authorized or contemplated by this
Agreement by each such person. Each such person further acknowledges that the
foregoing appointment and designation shall be deemed to be coupled with an
interest and shall survive the death or incapacity of such person. Each such
person hereby authorizes (and each such Permitted Transferee shall be deemed to
have authorized) the other parties hereto to disregard any notice or other
action taken by such person pursuant to this Agreement except for the THL
Entities' Representative. The other parties hereto are and will be entitled
to rely on any action so taken or any notice given by the THL Entities'
Representative and are and will be entitled and authorized to give notices
only to the THL Entities' Representative for any notice contemplated by this
Agreement to be given to any such person. A successor to the THL Entities'
Representative may be chosen by a majority in interest of the THL Entities'
Shareholders, provided that notice thereof is given by the new THL Entities'
Representative to the Company and to each Non-THL Shareholder.
(b) Each DLJ Entities hereby designates and appoints
(and each Permitted Transferee of each such DLJ Entities' is hereby deemed to
have so designated and appointed) DLJ Merchant Banking II, Inc., as his
attorney-in-fact with full power of substitution for each of them (the "DLJ
Entities' Representative"), to serve as the representative of each such person
to perform all such acts (other than voting of shares of Common Stock) as are
required, authorized or contemplated by this Agreement to be performed by such
person and hereby acknowledges that the DLJ Entities' Representative shall be
the only person authorized to take any action so required, authorized or
contemplated by this Agreement by each such person. Each such person hereby
authorizes (and each such Permitted Transferee shall be deemed to have
authorized) the other parties hereto to disregard any notice or other action
taken by such person pursuant to this Agreement except for the DLJ Entities'
Representative. The other parties hereto are and will be entitled to rely on
any action so taken or any notice given by the DLJ Entities' Representative
and are and will be entitled and authorized to give notices only to the DLJ
Entities' Representative for any notice contemplated by this Agreement to be
given to any such person. A successor to the DLJ Entities' Representative may
be chosen by a majority in interest of the DLJ Entities' Shareholders,
provided that notice thereof is given by the new DLJ Entities' Representative
to the Company and to each other DLJ Entity Shareholder.
(c) Each Merrill Lynch Entities hereby designates and
appoints (and each Permitted Transferee of each such Merrill Lynch Entities is
hereby deemed to have so designated and appointed) KECALP Inc., as his
attorney-in-fact with full power of substitution for each of them (the
"Merrill Lynch Entities Representative"), to serve as the representative of
each such person to perform all such acts as are required, authorized or
contemplated by this Agreement to be performed by such person and hereby
acknowledges that the Merrill Lynch Entities Representative shall be the only
person authorized to take any action so required, authorized or contemplated
by this Agreement by each such person. Each such person further acknowledges
that the foregoing appointment and designation shall be deemed to be coupled
with an interest and shall survive the death or incapacity of such person.
Each such person hereby authorizes (and each such Permitted Transferee shall
be deemed to have authorized) the other parties hereby to disregard any notice
or other action taken by such person pursuant to this Agreement except for the
Merrill Lynch Entities Representative. The other parties hereto are and will
be entitled to rely on any action so taken or any notice given by the Merrill
Lynch Entities Representative and are and will be entitled and authorized to
give notices only to the Merrill Lynch Entities Representative for any notice
contemplated by this Agreement to be given to any such person. A successor to
the Merrill Lynch Entities Representative may be chosen by a majority in
interest of the Merrill Lynch Entities' Shareholders, provided that notice
thereof is given by the new Merrill Lynch Entities Representative to the
Company and to each other Merrill Lynch Entity Shareholder.
(d) Each Management Shareholder hereby designates and
appoints (and each Permitted Transferee of each such Management Shareholder is
hereby deemed to have so designated and appointed) Paul M. Meister, as his
attorney-in-fact with full power of substitution for each of them (the
"Management Representative"), to serve as the representative of each such
person to perform all such acts as are required, authorized or contemplated by
this Agreement to be performed by such person and hereby acknowledges that the
Management Representative shall be the only person authorized to take any
action so required, authorized or contemplated by this Agreement by each such
person. Each such person further acknowledges that the foregoing appointment
and designation shall be deemed to be coupled with an interest and shall
survive the death or incapacity of such person. Each such person hereby
authorizes (and each such Permitted Transferee shall be deemed to have
authorized) the other parties hereby to disregard any notice or other action
taken by such person pursuant to this Agreement except for the Management
Representative. The other parties hereto are and will be entitled to rely on
any action so taken or any notice given by the Management Representative and
are and will be entitled and authorized to give notices only to the Management
Representative for any notice contemplated by this Agreement to be given to
any such person. A successor to the Management Representative may be chosen
by a majority in interest of the Management Shareholders, provided that notice
thereof is given by the new Management Representative to the Company and to
each other Management Shareholder.
Section 7.12 Severability. If one or more provisions of
this Agreement are held to be unenforceable to any extent under applicable
law, such provision shall be interpreted as if it were written so as to be
enforceable to the maximum possible extent so as to effectuate the parties'
intent to the maximum possible extent, and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
FISHER SCIENTIFIC INTERNATIONAL, INC.
By: /s/ Todd M. DuChene
----------------------------------
Name: Todd M. DuChene
Title: Vice President -
General Counsel and
Secretary
THL Equity Shareholders:
THOMAS H. LEE EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
----------------------------------
Name: Anthony J. DiNovi
Title:
THOMAS H. LEE FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
----------------------------------
Name: Anthony J. DiNovi
Title:
THL FSI EQUITY INVESTORS, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
----------------------------------
Name: Anthony J. DiNovi
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp.
as General Partner
By: /s/ Anthony J. DiNovi
----------------------------------
Name: Anthony J. DiNovi
Title:
Management Shareholders:
By: /s/ Paul M. Montrone
----------------------------------
Name: Paul M. Montrone
By: /s/ Paul M. Meister
----------------------------------
Name: Paul M. Meister
By: /s/ Anthony J. Fazzini
----------------------------------
Name: Anthony J. Fazzini
Title:
By: /s/ Steven Shulman
----------------------------------
Name: Steven Shulman
By: /s/ Kevin P. Clark
----------------------------------
Name: Kevin P. Clark
By: /s/ Paul F. Patek
----------------------------------
Name: Paul F. Patek
By: /s/ Todd M. DuChene
----------------------------------
Name: Todd M. DuChene
By: /s/ Michael S. Daigle
----------------------------------
Name: Michael S. Daigle
By: /s/ Richard A. Lukianuk
----------------------------------
Name: Richard A. Lukianuk
By: /s/ Donald C. Mueller
----------------------------------
Name: Donald C. Mueller
By: /s/ A. Christian Muns
----------------------------------
Name: A. Christian Muns
By: /s/ Jeffrey C. Yehle
----------------------------------
Name: Jeffrey C. Yehle
DLJ Entities' Shareholders:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJ DIVERSIFIED PARTNERS - A, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJ MILLENNIUM PARTNERS - A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJMB FUNDING II, INC.
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
UK INVESTMENT PLAN 1997 PARTNERS
By: Donaldson, Lufkin & Jenrette Inc.,
as general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Thompson Dean
----------------------------------
Name: Thompson Dean
Title:
The address for each of the DLJ Entities
listed above is:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, New York 10172
Fax: (212) 892-7272
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
By: /s/ Michael Blott
----------------------------------
Name: Michael Blott
Title: Executive Partner
Address:
380 Madison Avenue
New York, NY 10017
Merrill Lynch Entities:
ML IBK POSITIONS, INC.
By: /s/ James V. Caruso
----------------------------------
Name: James V. Caruso
Title: Vice President
KECALP INC.
By: /s/ Robert Tully
----------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
MERRILL LYNCH KECALP L.P. 1997
By: KECALP Inc., as general partner
By: /s/ Robert Tully
----------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
The address for each of the Merrill Lynch
Entities
listed above is:
255 Liberty Street
New York, NY 10080
Fax: (212) 236-7584
Individual Shareholders:
By: /s/ David V. Harkins
----------------------------------
Name: David V. Harkins
By: /s/ Sheryll J. Harkins
----------------------------------
Name: The 1995 Harkins Gift Trust
By: /s/ Thomas R. Shepherd
----------------------------------
Name: Thomas R. Shepherd
Money Purchase Pension Plan
By: /s/ Scott A. Schoen
----------------------------------
Name: Scott A. Schoen
By: /s/ C. Hunter Boll
----------------------------------
Name: C. Hunter Boll
By: /s/ Scott M. Sperling
----------------------------------
Name: Scott M. Sperling
By: /s/ Sperling Family Limited
Partnership
----------------------------------
Name: Sperling Family Limited
Partnership
By: /s/ Anthony J. DiNovi
----------------------------------
Name: Anthony J. DiNovi
By: /s/ Thomas M. Hagerty
----------------------------------
Name: Thomas M. Hagerty
By: /s/ Warren C. Smith, Jr.
----------------------------------
Name: Warren C. Smith,Jr.
By: /s/ Seth W. Lawry
----------------------------------
Name: Seth W. Lawry
By: /s/ Joseph J. Incandela
----------------------------------
Name: Joseph J. Incandela
By: /s/ Kent R. Weldon
----------------------------------
Name: Kent R. Weldon
By: /s/ Terrence M. Mullen
----------------------------------
Name: Terrence M. Mullen
By: /s/ Todd M. Abbrecht
----------------------------------
Name: Todd M. Abbrecht
By: /s/ Wendy L. Masler
----------------------------------
Name: Wendy L. Masler
By: /s/ THL-CCI Limited Partnership
----------------------------------
Name: THL-CCI Limited Partnership
By: Wendy L. Master
Title: Vice President
By: /s/ Andrew D. Flaster
----------------------------------
Name: Andrew D. Flaste
By: /s/ Kristina A. Watts
----------------------------------
Name: First Trust Co. FBO
Kristina A. Watts
By: /s/ Charles Robins
----------------------------------
Name: Charles Robins
By: /s/ James Westra
----------------------------------
Name: James Westra
By: /s/ Charles A. Brizius
----------------------------------
Name: Charles A. Brizius
Schedule I
Certain Named Individual Shareholders of THL
- --------------------------------------------
David V. Harkins
The 1995 Harkins Gift Trust
Thomas R. Shepherd Money Purchase Pension Plan (Keogh)
Scott A. Schoen
C. Hunter Boll
Scott M. Sperling
Sperling Family Limited Partnership
Anthony J. DiNovi
Thomas M. Hagerty
Warren C. Smith, Jr.
Seth W. Lawry
Joseph J. Incandela
Kent R. Weldon
Terrence M. Mullen
Todd M. Abbrecht
Wendy L. Masler
Andrew D. Flaster
First Trust Co. FBO Kristina A. Watts
Charles W. Robins
James Westra
Charles A. Brizius
Schedule II
THL Individuals
- ---------------
Thomas H. Lee
Barbara F. Lee
George R. Taylor
Andrew T. Mulderry
Anjan Mukherjee
Jeffrey B. Kovach
Charles S. Woo
Paxman & Co. for Robert Schiff Lee 1988 Irrevocable Trust
Paxman & Co. for Stephen Zachary Lee 1988 Irrevocable Trust
THL Investment Management Corp.
Schedule III
Initial Classified Board of Directors
- -------------------------------------
Class I Class II Class III
Term Expiring 1998 Term Expiring 1999 Term Expiring 2000
- ------------------ ------------------ ------------------
Robert Day Mitchell Blutt [DLJ Nominee]
Michael Dingman David Harkins Anthony J. DiNovi
Kent Weldon Paul Meister Paul Montrone
SECOND AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
--------------------------------------------------------
SECOND AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement"), dated as of November 14, 1997, by and between FSI Merger Corp.,
a Delaware corporation ("FSI"), and Fisher Scientific International Inc., a
Delaware corporation (the "Company").
WHEREAS, FSI and the Company have entered into that certain
Agreement and Plan of Merger, dated as of August 7, 1997, as amended and
restated as of September 11, 1997 (the "Original Agreement");
WHEREAS, FSI and the Company desire to amend and restate the
Original Agreement in its entirety as set forth below;
WHEREAS, the Merger (as hereinafter defined) and this Agreement
require the vote of a majority of the issued and outstanding shares of the
Common Shares (as hereinafter defined) for the approval thereof (the "Company
Stockholder Approval");
WHEREAS, the respective Boards of Directors of FSI and the Company
have approved the merger of FSI with and into the Company, as set forth below
(the "Merger"), in accordance with the General Corporation Law of the State of
Delaware (the "DGCL") and upon the terms and subject to the conditions set
forth in this Agreement, holders of shares of common stock, par value $.01 per
share (the "Common Shares") (including the associated preferred shares
purchase rights (the "Rights") issued pursuant to the Rights Agreement, dated
as of June 9, 1997, between the Company and ChaseMellon Shareholder Services,
LLC, as Rights Agent (the "Rights Agreement"), which Rights, together with the
Common Shares, are hereinafter referred to as the "Shares") issued and
outstanding immediately prior to the Effective Time (as defined below) will be
entitled, subject to the terms hereof and other than as set forth herein, the
right either (A) to retain a portion of their Common Shares or (B) to receive
cash in this Agreement;
WHEREAS, the Board of Directors of the Company (the "Company
Board") has, in light of and subject to the terms and conditions set forth
herein, (i) determined that (A) the consideration to be paid for each Share in
the Merger (as hereinafter defined) is fair to the stockholders of the Company,
and (B) the Merger is otherwise in the best interests of the Company and its
stockholders, and (ii) resolved to approve and adopt this Agreement and the
transactions contemplated hereby and to recommend approval and adoption by the
stockholders of the Company of this Agreement;
WHEREAS, FSI and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger, and also to prescribe various conditions to the Merger; and
WHEREAS, it is intended that the Merger be recorded as a
recapitalization for financial reporting purposes.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, FSI and the Company agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 The Merger. Upon the terms and subject to the
satisfaction or waiver of the conditions hereof, and in accordance with the
applicable provisions of this Agreement and the DGCL, at the Effective Time
FSI shall be merged with and into the Company. Following the Merger, the
separate corporate existence of FSI shall cease and the Company shall continue
as the surviving corporation (the "Surviving Corporation").
SECTION 1.2 Effective Time. As soon as practicable after the
satisfaction or waiver of the conditions set forth in Article VI, the Company
shall execute, in the manner required by the DGCL, and deliver to the
Secretary of State of the State of Delaware a duly executed and verified
certificate of merger, and the parties shall take such other and further
actions as may be required by law to make the Merger effective. The time the
Merger becomes effective in accordance with applicable law is referred to
herein as the "Effective Time."
SECTION 1.3 Effects of the Merger. The Merger shall have the
effects set forth in the DGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the properties,
rights, privileges, powers and franchises of the Company and FSI shall vest in
the Surviving Corporation, and all debts, liabilities and duties of the
Company and FSI shall become the debts, liabilities and duties of the Surviving
Corporation.
SECTION 1.4 Certificate of Incorporation and By-Laws of the
Surviving Corporation.
(a) The Restated Certificate of Incorporation of the Company, as
in effect immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended in
accordance with the provisions thereof and hereof and applicable law.
(b) The By-Laws of the Company in effect at the Effective Time
shall be the By-Laws of the Surviving Corporation until amended, subject to
the provisions of Section 5.06 of this Agreement, in accordance with the
provisions thereof and applicable law.
SECTION 1.5 Directors. Subject to applicable law, the directors
of FSI immediately prior to the Effective Time shall be the initial directors
of the Surviving Corporation and shall hold office until their respective
successors are duly elected and qualified, or their earlier death, resignation
or removal.
SECTION 1.6 Officers. The officers of the Company immediately
prior to the Effective Time shall be the initial officers of the Surviving
Corporation and shall hold office until their respective successors are duly
elected and qualified, or their earlier death, resignation or removal.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS
2.1 Effect on Capital Stock. As of the Effective Time, by virtue
of the Merger and without any action on the part of the holder of any Common
Shares or any shares of capital stock of FSI:
(a) Common Stock of FSI. All of the shares of Common Stock of
FSI issued and outstanding immediately prior to the Effective Time shall be
converted into a number of Common Shares following the Merger equal to
6,507,772 Common Shares less the Election Eligible Shares (as defined in
Section 2.01(c)).
(b) Cancellation of Treasury Stock. Each Common Share that is
owned by the Company or by any wholly owned subsidiary of the Company shall
automatically be canceled and retired and shall cease to exist, and no cash
or other consideration shall be delivered or deliverable in exchange therefor.
(c) Retention of Common Shares. Except as otherwise provided
herein and subject to Sections 2.02 and 2.03, each Common Share issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger, be treated as follows:
(i) for each Standard Common Share (as defined in
2.02(a)) with respect to which an election to retain such Common
Share has been effectively made and not revoked in accordance with
Section 2.02 (the "Potential Election Standard Shares") and which is
to be retained in accordance with Section 2.03(b)(ii) or Section
2.03(c), the right to retain such fully paid and nonassessable Common
Share (an "Election Standard Share");
(ii) for each Standard Common Share which was not a
Potential Election Standard Share, but which is to be retained in
accordance with Section 2.03(c)(ii), the right to retain such fully
paid and non-assessable Common Share (a "Non-Election Standard
Share");
(iii) for each Eligible Common Share (as defined in
Section 2.02(a)) which is to be retained in accordance with Section
2.03(d)(i) or 2.03(d)(ii)(B), the right to retain such fully paid and
nonassessable Common Share ("Election Eligible Shares" and, together
with the Election Standard Shares and the Non-Election Standard
Shares, the "Retained Shares");
(iv) for each Common Share (other than Dissenting
Shares (as defined in Section 2.01(d)) and Retained Shares) the right
to receive in cash from the Company following the Merger an amount
equal to $48.25 (the "Cash Price" and, with the Retained Shares, the
"Merger Consideration") and each such Common Share shall no longer be
outstanding, shall automatically be canceled and retired and shall
cease to exist, and each holder of a Certificate representing any
such Common Shares shall, to the extent such Certificate represents
such shares, cease to have any rights with respect thereto, except
the right to receive the Cash Price applicable thereto, upon
surrender of such Certificate in accordance with Section 2.05.
(d) Dissenting Shares. Notwithstanding Section 2.01(c), Common
Shares outstanding immediately prior to the Effective Time and held by a
holder who has not voted in favor of the Merger or consented thereto in
writing and who has demanded appraisal for such Common Shares in accordance
with the DGCL prior to the Effective Time ("Dissenting Shares") shall not be
converted into a right to receive the Merger Consideration, unless such holder
fails to perfect or withdraws or otherwise loses such holder's right to
appraisal. If after the Effective Time such holder fails to perfect or
withdraws or loses such holder's right to appraisal, such Common Shares shall
be treated as if they had been converted as of the Effective Time into a right
to receive the Merger Consideration. The Company shall give FSI prompt notice
of any demands received by the Company for appraisal of Common Shares, and FSI
shall have the right to participate in all negotiations and proceedings with
respect to such demands. The Company shall not, except with the prior written
consent of FSI, make any payment with respect to, or settle or offer to
settle, any such demands.
SECTION 2.2 Common Share Elections. (a) Each person who,
on or prior to the Election Date (as defined in Section 2.02(b) below), is a
record holder of Standard Common Shares will be entitled to make an
unconditional election on or prior to such Election Date to express a desire
to retain such shares, on the basis hereinafter set forth and subject to
Section 2.03 hereof. In addition, each person who, on or prior to the
Election Date, is a record holder of Eligible Common Shares will be entitled
to make an unconditional election on or prior to such Election Date to express
a desire to retain such shares, on the basis hereinafter set forth and subject
to Section 2.03 hereof.
(i) "Standard Common Shares" are Common Shares other than
"Eligible Option Shares".
(ii) "Eligible Option Shares" are Common Shares which are issued
to employees listed on a schedule to be agreed upon by FSI and the
Company (an "Eligible Employee") upon exercise of Options (as defined in
Section 2.04) following the execution of this Agreement and which
continue to be held by such Eligible Employees on the Election Date.
(iii) "Eligible Common Shares" are Eligible Option Shares and
Common Shares which were held by Eligible Employees upon the execution
of this Agreement and which continue to be held by such Eligible
Employees on the Election Date.
(b) Subject to any required clearance by the Securities and
Exchange Commission (the "SEC"), the Company shall prepare and mail a form of
election (the "Form of Election"), which form shall be subject to the
reasonable approval of FSI, with the Proxy Statement to the record holders of
Common Shares as of the record date for the Special Meeting (as hereinafter
defined), which Form of Election shall be used by each record holder of Common
Shares who elects to express a desire to retain Standard Common Shares or
Eligible Common Shares held by such holder. To the extent an Eligible
Employee holds a Common Share which is both a Standard Common Share and an
Eligible Common Share, such Eligible Employee may elect to retain such Common
Share first as a Standard Common Share and, to the extent not so retained,
second as an Eligible Common Share. The Company will use its best efforts to
make the Form of Election available to all persons who become holders of
Common Shares during the period between such record date and the Election
Date, with a copy of the Proxy Statement. Any such holder's election shall
have been properly made only if the Exchange Agent shall have received at its
designated office, by 5:00 p.m., New York City time on the second business day
prior to the date of the Special Meeting (the "Election Date"), a Form of
Election properly completed and signed and accompanied by Certificates for the
Common Shares to which such Form of Election relates, duly endorsed in blank
or otherwise in a form acceptable for transfer on the books of the Company (or
by an appropriate guarantee of delivery of such certificates as set forth in
such Form of Election from a firm which is a member of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.
or a commercial bank or trust company having an office or correspondent in the
United States, provided such certificates are in fact delivered to the
Exchange Agent within three NYSE trading days after the date of execution of
such guarantee of delivery).
(c) Any Form of Election may be revoked by the holder submitting
it to the Exchange Agent only by written notice received by the Exchange Agent
(i) prior to 5:00 p.m., New York City time on the Election Date or (ii) after
the Election Date, if (and to the extent that) the Exchange Agent is legally
required to permit revocations and the Effective Time shall not have occurred
prior to such date. In addition, all Forms of Election shall automatically be
revoked if the Exchange Agent is notified in writing by FSI and the Company
that the Merger has been abandoned. If a Form of Election is revoked, the
Certificate or Certificates (or guarantees of delivery, as appropriate) for
the Common Shares to which such Form of Election relates shall be promptly
returned to the stockholder submitting the same to the Exchange Agent.
(d) The determination of the Exchange Agent shall be binding
with respect to whether or not elections have been properly made or revoked
pursuant to this Section 2.02 and when elections and revocations were
received by it. If the Exchange Agent determines that any election to retain
Common Shares was not properly made, such shares shall be treated by the
Exchange Agent as shares for which no election was received, and such shares
shall be retained or converted in accordance with Sections 2.01 and 2.03. The
Exchange Agent shall also make all computations as to the allocation and the
proration contemplated by Section 2.03, and any such computation shall be
conclusive and binding on the holders of Common Shares. The Exchange Agent
may, with the mutual agreement of FSI and the Company, make such rules as are
consistent with this Section 2.02 for the implementation of the elections
provided for herein as shall be necessary or desirable fully to effect such
elections.
SECTION 2.3 Proration.
(a) Notwithstanding anything in this Agreement to the contrary,
the "Standard Retained Share Number" shall equal 746,114 Common Shares.
(b) If the number of Potential Election Standard Shares is
greater than the Standard Retained Share Number, then each Potential Election
Standard Share shall be retained as an Election Standard Share in accordance
with the terms of Section 2.01(c)(i) or receive cash in accordance with the
terms of Section 2.01(c)(iv) in the following manner:
(i) A proration factor (the "Non-Cash Proration
Factor") shall be determined by dividing the Standard Retained Share
Number by the total number of Potential Election Standard Shares.
(ii) The number of Potential Election Standard Shares
covered by each election to be retained as Election Standard Shares
shall be determined by multiplying the Non-Cash Proration Factor by
the total number of Potential Election Standard Shares covered by
such election, rounded down to the nearest whole number.
(iii) All Potential Election Standard Shares, other
than those shares which are retained in accordance with Section
2.03(b)(ii), shall be converted into cash in accordance with the
terms of Section 2.01(c)(iv).
(c) If the number of Potential Election Standard Shares is less
than or equal to the Standard Retained Share Number, then each Potential
Election Standard Share shall be retained as an Election Standard Share in
accordance with the terms of Section 2.01(c)(i) and each Standard Common Share
other than a Potential Election Standard Share or a Dissenting Share (a
"Potential Cash Share") shall be retained as a Non-Election Standard Share in
accordance with Section 2.01(c)(ii) or converted into cash in accordance with
the terms of Section 2.01(c)(iv) in the following manner:
(i) A proration factor (the "Cash Proration Factor")
shall be determined by dividing (x) the difference between the
Standard Retained Share Number and the number of Potential Election
Standard Shares, by (y) the number of Potential Cash Shares.
(ii) The number of Potential Cash Shares held by each
stockholder to be retained as Non-Election Standard Shares in
accordance with Section 2.01(c)(ii) shall be determined by
multiplying the Cash Proration Factor by the total number of
Potential Cash Shares held by such stockholder, rounded down to the
nearest whole number.
(iii) All Potential Cash Shares, other than those
shares retained as Non-Election Standard Shares, shall be converted
to cash in accordance with Section 2.01(c)(iv).
(d) Eligible Common Shares shall be treated as follows:
(i) To the extent the number of Eligible Common Shares
with respect to which an election to retain Common Shares has been
effectively made and not revoked in accordance with Section 2.02 (the
"Potential Election Eligible Shares") is less than or equal to
310,881 Common Shares (the "Eligible Retained Share Number"), such
Potential Election Eligible Shares shall be retained in accordance
with Section 2.01(c)(iii).
(ii) To the extent the number of Potential Election
Eligible Shares is greater than the Eligible Retained Share Number,
the following shall apply:
(A) A proration factor (the "Eligible
Proration Factor") shall be determined by dividing the
Eligible Retained Share Number by the number of Potential
Election Eligible Shares.
(B) The number of Potential Election Eligible Shares
to be retained by a holder in accordance with Section 2.01(c)(iii)
shall be determined by multiplying the Eligible Proration Factor
by the total number of Potential Election Eligible Shares held by
such holder, rounded down to the nearest whole number.
(C) All Potential Election Eligible Shares, other
than those shares retained pursuant to Section 2.03(d)(ii)(B),
shall be converted into cash in accordance with Section
2.01(c)(iv).
SECTION 2.4 Options; Stock Plans.
(a) Subject to Section 2.04(c) below, immediately prior to the
Effective Time, each holder of a then-outstanding employee stock option,
whether or not fully exercisable, to purchase Common Shares (an "Option")
granted under any stock option or similar plan of the Company (together with
the Restricted Unit Plan and the Equity Option Program) (as such terms are
hereinafter defined), the "Stock Plans") will be entitled to receive in
settlement of such Option a cash payment from the Company equal to the product
of (i) the total number of Common Shares previously subject to such Option and
(ii) the excess of the Cash Price over the exercise price per Common Share
subject to such Option, subject to any required withholding of taxes. If
necessary or appropriate, the Company will, upon the request of FSI, use
reasonable efforts to obtain the written acknowledgment of each employee
holding an Option that the payment of the amount of cash referred to above
will satisfy in full the Company's obligation to such employee pursuant to
such Option and take such other action as is necessary to effect the
provisions of this Section 2.04.
(b) FSI agrees that each holder of Restricted Units (as such term
is defined in the Restricted Unit Plan for Non-Employee Directors of Fisher
Scientific International Inc. (the "Restricted Unit Plan"), shall be entitled
to receive at the Effective Time, and shall pay or cause to be paid to each
such holder promptly following the Effective Time, (i) an amount in cash equal
to the product of (x) the total number of Restricted Units in such holder's
Restricted Unit account (regardless of whether such Restricted Units have
vested in accordance with the Restricted Unit Plan) and (y) the Cash Price,
and (ii) an amount in cash equal to the Cash Dividend Equivalents (as such
term is defined in the Restricted Unit Plan) (and amounts equivalent to
interest thereon) in such holder's Restricted Unit account. If necessary or
appropriate, the Company will, upon the request of FSI, use reasonable efforts
to obtain the written acknowledgment of each director holding Restricted Units
that the payment of the amounts referred to above will satisfy in full the
Company's obligation to such director pursuant to the Restricted Unit Plan and
take such other action as is necessary to effect the provisions of this
Section 2.04.
(c) Notwithstanding anything to the contrary set forth in Section
2.04(a) above, certain employees of the Company shall receive, with respect
to the Options listed on Schedule 2.04(c) hereto (each, an "Electing Option"),
in exchange for the cancellation of such Electing Option, (A) the right (the
"Deferred Share Right") to receive (in accordance with the provisions of
Section 2.04(d) below) the number of Common Shares determined by dividing (X)
the product of (1) the number of Common Shares subject to such Option and (2)
the excess, if any, of the Cash Price over the per share exercise price of
such Option, by (Y) the Cash Price (each a "Converted Option Common Share"),
and (B) a single lump sum cash payment in lieu of any fractional shares that
would have been issued. FSI and the Company shall agree upon the employees to
receive Deferred Share Rights and the number of Converted Option Common Shares
to be distributed to such employees upon their exercise of such Deferred
ShareRights. Notwithstanding anything herein to the contrary, the Deferred
Share Rights may not entitle the holders to receive more than 909,392 Converted
Option Common Shares pursuant to this Section 2.04(c).
(d) Each holder of a Deferred Share Right shall have the right to
receive the number of Converted Option Common Shares set forth on Section
2.04(c) upon his or her termination of employment for any reason. Until the
distribution of Converted Option Common Shares following such termination of
employment, the holders of Deferred Share Rights will have no rights as
stockholders of the Surviving Corporation. Converted Option Common Shares so
distributed in satisfaction of the Deferred Share Rights shall be subject to,
and the distribution of such Converted Option Common Shares to the holders of
Deferred Share Rights shall be conditional on, the execution by the holder of
the Deferred Share Rights of a stockholders' agreement with investors in the
Surviving Corporation acceptable to the Company and FSI. The number of
Converted Option Common Shares (not in excess of 909,392) sufficient to
satisfy the Surviving Corporation's obligations with respect to all
outstanding Deferred Share Rights shall be deposited, as soon as practicable
following the Merger, in a grantor trust in such form as shall be agreed by
FSI and the Company.
SECTION 2.5 Payment for Common Shares.
(a) From and after the Effective Time, such bank or trust
company as shall be mutually acceptable to FSI and the Company shall act as
exchange agent (the "Exchange Agent"). At or prior to the Effective Time, FSI
shall deposit, or FSI shall otherwise take all steps necessary to cause to be
deposited, with the Exchange Agent in an account (the "Exchange Fund") the
aggregate Merger Consideration to which holders of Common Shares shall be
entitled at the Effective Time pursuant to Section 2.01(c).
(b) Promptly after the Effective Time, FSI shall cause the
Exchange Agent to mail to each record holder of certificates (the
"Certificates") that immediately prior to the Effective Time represented
Common Shares a form of letter of transmittal which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon proper delivery of the Certificates to the Exchange
Agent and instructions for use in surrendering such Certificates and receiving
the Merger Consideration in respect thereof.
(c) In effecting the payment of the Cash Price in respect of
Common Shares represented by Certificates entitled to payment of the Cash
Price pursuant to Section 2.01(c)(iv) (the "Cashed Shares"), upon the
surrender of each such Certificate, the Exchange Agent shall pay the holder of
such Certificate the Cash Price multiplied by the number of Cashed Shares, in
consideration therefor. Upon such payment (and the exchange, if any, of
Certificates formerly representing Common Shares for certificates representing
Retained Shares) such Certificate shall forthwith be cancelled.
(d) In effecting the exchange of Retained Shares in respect of
Common Shares represented by Certificates which, at the Effective Time, shall
become Retained Shares, upon surrender of each such Certificate, the Exchange
Agent shall deliver to the holder of such Certificate a certificate
representing that number of whole Retained Shares which such holder has the
right to receive pursuant to the provisions of Section 2.01(c), and cash in
lieu of fractional Retained Shares. Upon such exchange (and any payment of
the Cash Price for Cashed Shares), such Certificate so surrendered shall
forthwith be canceled.
(e) Until surrendered in accordance with paragraphs (c) or (d)
above, each such Certificate (other than Certificates representing Common
Shares held by FSI or any of its affiliates, in the treasury of the Company or
by any wholly owned subsidiary of the Company or Dissenting Shares) shall
represent solely the right to receive the aggregate Merger Consideration
relating thereto. No interest or dividends shall be paid or accrued on the
Merger Consideration. If the Merger Consideration (or any portion thereof) is
to be delivered to any person other than the person in whose name the
Certificate formerly representing Common Shares surrendered therefor is
registered, it shall be a condition to such right to receive such Merger
Consideration that the Certificate so surrendered shall be properly endorsed
or otherwise be in proper form for transfer and that the person surrendering
such Common Shares shall pay to the Exchange Agent any transfer or other taxes
required by reason of the payment of the Merger Consideration to a person
other than the registered holder of the Certificate surrendered, or shall
establish to the satisfaction of the Exchange Agent that such tax has been
paid or is not applicable.
(f) Distributions with Respect to Unexchanged Shares. No
dividends or other distributions with respect to Common Shares with a record
date after the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the Common Shares represented thereby, and no cash
payment in lieu of fractional shares shall be paid to any such holder pursuant
to Section 2.05(g) until the surrender of such Certificates in accordance with
this Section 2.05. Subject to the effect of applicable laws, following
surrender of any such Certificate, there shall be paid to the holder of the
certificate representing whole Common Shares issued in exchange therefor,
without interest, at the time of such surrender, the amount of any cash
payable in lieu of a fractional Common Share to which such holder is entitled
pursuant to Section 2.5(g).
(g) No Fractional Shares. (i) No certificates or scrip
representing factional Retained Shares shall be issued upon the surrender for
exchange of Certificates, and such fractional share interests shall not
entitle the owner thereof to vote or to any rights of a stockholder of the
Surviving Corporation.
(ii) As promptly as practicable following the
Effective Time, the Exchange Agent shall determine the excess of (x) the
number of Retained Shares delivered to the Exchange Agent by FSI pursuant to
Section 2.05(a) over (y) the aggregate number of whole Retained Shares to be
distributed to holders of the Certificates (such excess being herein called
the "Excess Shares"). As soon as practicable after the Effective Time, the
Exchange Agent, as agent for the holders of the Certificates, shall sell the
Excess Shares at then prevailing prices on the New York Stock Exchange, Inc.
(the "NYSE"), all in the manner provided in paragraph (iii) of this Section
2.05(g).
(iii) The sale of the Excess Shares by the Exchange
Agent shall be executed on the NYSE through one or more member firms of the
NYSE and shall be executed in round lots to the extent practicable. FSI shall
bear the cost of all related changes and fees of the Exchange Agent,
commissions, transfer taxes and other out-of-pocket transaction costs. Until
the proceeds of such sale or sales have been distributed to the holders of the
Certificates, the Exchange Agent shall hold such proceeds in trust for the
holders of the Certificates (the "Common Shares Trust"). The Exchange Agent
shall determine the portion of the Common Shares Trust to which each holder of
a certificate shall be entitled, if any, by multiplying the amount of the
aggregate proceeds comprising the Common Shares Trust by a fraction, the
numerator of which is the amount of the fractional share interests to which
such holder of a Certificate is entitled and the denominator of which is the
aggregate amount of fractional share interests to which all holders of the
Certificates are entitled.
(iv) As soon as practicable after the determination
of the amount of cash to be paid to holders of Certificates in lieu of any
fractional share interests, the Exchange Agent shall make available such
amounts, without interest, to such holders of Certificates who have surrendered
their Certificates in accordance with this Section 2.05.
(h) Promptly following the date which is 180 days after the
Effective Time, the Exchange Agent shall deliver to the Surviving Corporation
all cash, Certificates and other documents in its possession relating to the
transactions described in this Agreement, and the Exchange Agent's duties
shall terminate. Thereafter, each holder of a Certificate formerly
representing a Common Share may surrender such Certificate to the Surviving
Corporation and (subject to applicable abandoned property, escheat and similar
laws) receive in consideration therefor the aggregate Merger Consideration
relating thereto, without any interest or dividends thereon.
(i) After the Effective Time, there shall be no transfers on the
stock transfer books of the Surviving Corporation of any Common Shares which
were outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates formerly representing Common Shares are presented
to the Surviving Corporation or the Exchange Agent, they shall be surrendered
and cancelled in return for the payment of the aggregate Merger Consideration
relating thereto, as provided in this Article II.
(j) No Liability. None of FSI, the Company or Exchange Agent
shall be liable to any person in respect of any Retained Shares (or dividends
or distributions with respect thereto) or cash from the Exchange Fund or the
Common Shares Trust delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law. If any Certificates shall not
have been surrendered prior to seven years after the Effective Time (or
immediately prior to such earlier date on which any Retained Shares, any cash
in lieu of fractional Retained Shares or any dividends or distributions with
respect to Common Shares in respect of such Certificate would otherwise
escheat to or become the property of any Governmental Entity) any such shares,
cash, dividends or distributions in respect of such Certificate shall, to the
extent permitted by applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interest of any person previously
entitled thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to FSI as follows:
SECTION 3.1 Organization and Qualification; Subsidiaries. The
Company and each of its Significant Subsidiaries (as hereinafter defined) is a
corporation duly organized, validly existing and in good standing under the
laws of its state or jurisdiction of incorporation and has all requisite
corporate power and corporate authority to own, lease and operate its
properties and to carry on its business as now being conducted and is in good
standing as a foreign corporation in each jurisdiction where the properties
owned, leased or operated, or the business conducted, by it require such
qualification and where failure to be in good standing or to so qualify would
have a Material Adverse Effect on the Company. The term "Material Adverse
Effect on the Company," as used in this Agreement, means any change in or
effect on the business, financial condition, results of operations or
reasonably foreseeable prospects of the Company or any of its subsidiaries that
would be materially adverse to the Company and its subsidiaries taken as a
whole. The Company has heretofore made available to FSI a complete and
correct copy of its Restated Certificate of Incorporation and By-Laws. A
"Significant Subsidiary" of any person means any subsidiary or person that
constitutes a significant subsidiary of such person within the meaning of Rule
1-02(v) of Regulation S-X.
SECTION 3.2 Capitalization; Subsidiaries. The authorized capital
stock of the Company consists of 50,000,000 Common Shares and 15,000,000
shares of preferred stock, par value $.01 per share ("Preferred Stock"), of
which 500,000 shares are designated Series A Junior Participating Preferred
Stock, par value $.01 per share ("Junior Preferred Stock"). As of the close
of business on August 6, 1997, 20,325,546 Common Shares were issued and
outstanding, all of which are entitled to vote on this Agreement, and no
Common Shares were held in treasury. The Company has no shares of Preferred
Stock issued and outstanding. As of August 6, 1997, except for (i) 3,632,195
Common Shares reserved for issuance pursuant to outstanding Options and rights
granted under the Stock Plans, (ii) 500,000 shares of Junior Preferred Stock
reserved for issuance upon exercise of the Rights and (iii) up to 192,270
Options issuable pursuant to the Company's Equity Option Program (the "Equity
Option Program"), there are not now, and at the Effective Time there will not
be, any existing options, warrants, calls, subscriptions, or other rights, or
other agreements or commitments, obligating the Company to issue, transfer or
sell any shares of capital stock of the Company or any of its subsidiaries.
All issued and outstanding Common Shares are validly issued, fully paid,
nonassessable and free of preemptive rights. All of the outstanding shares of
capital stock of each of the Company's Significant Subsidiaries have been
validly issued and are fully paid and non-assessable and, except as set forth
on Section 3.02 of the disclosure schedule delivered to FSI by the Company on
the date hereof (the "Company Disclosure Schedule"), are owned by either the
Company or another of its Significant Subsidiaries free and clear of all
liens, charges, claims or encumbrances. There are no outstanding options,
warrants, calls, subscriptions, or other rights, or other agreements or
commitments, obligating any Significant Subsidiary of the Company to issue,
transfer or sell any shares of its capital stock.
SECTION 3.3 Authority Relative to this Agreement.
(a) The Company has the requisite corporate power and authority
to execute and deliver this Agreement and, except for the approval of this
Agreement by the shareholders of the Company, to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Company Board and no other corporate proceedings on
the part of the Company are necessary to authorize this Agreement or to
consummate the transactions so contemplated (other than the approval of this
Agreement by the shareholders of the Company, to the extent required by
applicable law). This Agreement has been duly and validly executed and
delivered by the Company, and, assuming this Agreement constitutes a valid and
binding obligation of FSI, this Agreement constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms.
(b) Except as set forth in Section 3.03 of the Company
Disclosure Schedule, the execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of consent, termination,
purchase, cancellation or acceleration of any obligation or to loss of any
property, rights or benefits under, or result in the imposition of any
additional obligation under, or result in the creation of any Lien upon any of
the properties or assets of the Company or any of its subsidiaries under, (i)
the organizational documents of the Company or any of its subsidiaries, (ii)
any contract, instrument, permit, concession, franchise, license, loan or
credit agreement, note, bond, mortgage, indenture, lease or other property
agreement, partnership or joint venture agreement or other legally binding
agreement, whether oral or written (a "Contract"), applicable to the Company
or any of its subsidiaries or their respective properties or assets or (iii)
subject to the governmental filings and other matters referred to in the
following paragraph, any judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to the Company or any of its subsidiaries or
their respective properties or assets, other than, in the case of clauses (ii)
and (iii), any such conflicts, violations, defaults, rights or Liens that
individually or in the aggregate would not have a Material Adverse Effect.
(c) Other than in connection with, or in compliance with, the
provisions of the DGCL with respect to the transactions contemplated hereby,
the Exchange Act, the securities laws of the various states and the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), no authorization, consent or approval of, or filing with, any
Governmental Entity (as hereinafter defined) is necessary for the consummation
by the Company of the transactions contemplated by this Agreement other than
authorizations, consents and approvals the failure to obtain, or filings the
failure to make, which would not, in the aggregate, have a Material Adverse
Effect on the Company. As used in this Agreement, the term "Governmental
Entity" means any government or subdivision thereof, domestic, foreign or
supranational or any administrative, governmental or regulatory authority,
agency, commission, tribunal or body, domestic, foreign or supranational.
SECTION 3.4 No Violation. Neither the execution or delivery of
this Agreement by the Company nor the consummation by the Company of the
transactions contemplated hereby will (i) constitute a breach or violation of
any provision of the Restated Certificate of Incorporation or By-Laws of the
Company or (ii) except as set forth on Section 3.04 of the Company Disclosure
Schedule, constitute a breach, violation or default (or any event which, with
notice or lapse of time or both, would constitute a default) under, or result
in the termination of, or accelerate the performance required by, or result in
the creation of any lien or encumbrance upon any of the properties or assets of
the Company or any of its subsidiaries under, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument to
which the Company or any of its subsidiaries is a party or by which they or
any of their respective properties or assets are bound, other than breaches,
violations, defaults, terminations, accelerations or creation of liens and
encumbrances which, in the aggregate, would not have a Material Adverse Effect
on the Company.
SECTION 3.5 SEC Reports and Financial Statements. Since January
1, 1995, the Company has filed all forms, reports and documents ("SEC
Reports") with the SEC required to be filed by it pursuant to the federal
securities laws and the SEC rules and regulations thereunder. Copies of all
such SEC Reports have been made available to FSI by the Company. None of such
SEC Reports (as of their respective filing dates) contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The audited
and unaudited consolidated financial statements of the Company included in the
SEC Reports have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as otherwise
stated in such financial statements, including the related notes) and fairly
present the financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the results of their operations and
changes in financial position for the periods then ended, subject, in the case
of the unaudited financial statements, to year-end audit adjustments. Except
as set forth in the SEC Reports and except as disclosed in Section 3.05 of the
Company Disclosure Schedule, at the date of the most recent audited financial
statements of the Company included in the SEC Reports, neither the Company nor
any of its subsidiaries had, and since such date neither the Company nor any
of such subsidiaries has incurred, any liabilities or obligations of any
nature (whether accrued, absolute, contingent or otherwise) which,
individually or in the aggregate, would be required to be disclosed in a
balance sheet prepared in accordance with generally accepted accounted
principles and would reasonably be expected to have a Material Adverse Effect
with respect to the Company except liabilities incurred in the ordinary and
usual course of business and consistent with past practice and liabilities
incurred in connection with the transactions contemplated by this Agreement.
SECTION 3.6 Compliance with Applicable Laws. Except as set forth
on Section 3.06 of the Company Disclosure Schedule and except for matters
relating to Environmental Laws (which matters are covered in Section 3.13),
(i) the Company and its subsidiaries hold all material permits, licenses and
approvals of all Governmental Entities and (ii) the business operations of the
Company have been conducted in compliance with all laws, ordinances and
regulations of any Governmental Entity, except for possible violations which
would not, individually or in the aggregate, have a Material Adverse Effect on
the Company.
SECTION 3.7 Change of Control. Except as set forth on Section
3.07 of the Company Disclosure Schedule or as provided in Section 2.04, the
transactions contemplated by this Agreement will not constitute a "change of
control" under, require the consent from or the giving of notice to a third
party pursuant to, permit a third party to terminate or accelerate vesting or
repurchase rights, or create any other detriment under the terms, conditions
or provisions of any note, bond, mortgage, indenture, license, lease,
contract, agreement or other instrument or obligation to which the Company or
any of its subsidiaries is a party or by which any of them or any of their
properties or assets may be bound, except where the adverse consequences
resulting from such change of control or where the failure to obtain such
consents or provide such notices would not, individually or in the aggregate,
have a Material Adverse Effect on the Company.
SECTION 3.8 Litigation. Except as set forth on Section 3.08 of
the Company Disclosure Schedule, there is no suit, claim, action, proceeding
or investigation pending or, to the knowledge of the Company, threatened,
against the Company or any of its subsidiaries, individually or in the
aggregate, which would have a Material Adverse Effect on the Company and its
subsidiaries or could prevent or materially delay the consummation of the
transactions contemplated by this Agreement. Except as disclosed in the SEC
Reports filed prior to the date of this Agreement, neither the Company nor any
of its subsidiaries is subject to any outstanding order, writ, injunction or
decree which, individually or in the aggregate, would have a Material Adverse
Effect on the Company or could prevent or materially delay the consummation of
the transactions contemplated hereby.
SECTION 3.9 Information. None of the information supplied by the
Company in writing (other than projections of future financial performance)
specifically for inclusion or incorporation by reference in (i) Form S-4 or
(ii) any other document to be filed with the SEC or any other Governmental
Entity in connection with the transactions contemplated by this Agreement (the
"Other Filings") will, at the respective times filed with the SEC or other
Governmental Entity and, in addition, in the case of the Proxy Statement, at
the date it or any amendment or supplement is mailed to stockholders, at the
time of the Special Meeting and at the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, no representation is made by the Company with
respect to (i) any forward-looking information which may have been supplied
by the Company, whether or not included by FSI in the Form S-4 or (ii)
statements made in any of the foregoing documents based upon information
supplied by FSI.
SECTION 3.10 Certain Approvals. The Company Board has taken any
and all necessary and appropriate action to render inapplicable to the Merger
and the transactions contemplated by this Agreement the provisions of Section
203 of the DGCL.
SECTION 3.11 Employee Benefit Plans.
(a) Section 3.11(a) of the Company Disclosure Schedule includes
a complete list of all material employee benefit plans and programs providing
benefits to any employee or former employee of the Company and its
subsidiaries sponsored or maintained by the Company or any of its subsidiaries
or to which the Company or any of its subsidiaries contributes or is obligated
to contribute ("Plans"). Without limiting the generality of the foregoing,
the term "Plans" includes all employee welfare benefit plans within the
meaning of Section 3(1) of the Employee Retirement Income Security Act of
1974, as amended, and the regulations thereunder ("ERISA"), and all employee
pension benefit plans within the meaning of Section 3(2) of ERISA.
(b) With respect to each Plan, the Company has made available to
FSI a true, correct and complete copy of: (i) all plan documents, benefit
schedules, trust agreements, and insurance contracts and other funding
vehicles; (ii) the most recent Annual Report (Form 5500 Series) and
accompanying schedule, if any; (iii) the current summary plan description, if
any; (iv) the most recent annual financial report, if any; (v) the most recent
actuarial report, if any; and (vi) the most recent determination letter from
the United States Internal Revenue Service (the "IRS"), if any.
(c) The Company and each of its subsidiaries has complied, and
is now in compliance, in all material respects with all provisions of ERISA,
the Internal Revenue Code of 1986, as amended, including the Treasury
Regulations thereunder (the "Code") and all laws and regulations applicable to
the Plans. With respect to each Plan that is intended to be a "qualified
plan" within the meaning of Section 401(a) of the Code ("Qualified Plans"),
the IRS has issued a favorable determination letter.
(d) All contributions required to be made to any Plan by
applicable law or regulation or by any plan document or other contractual
undertaking, and all premiums due or payable with respect to insurance
policies funding any Plan, for any period through the date hereof have been
timely made or paid in full or, to the extent not required to be made or paid
on or before the date hereof, have been fully reflected in the financial
statements of the Company included in the SEC Reports to the extent required
under generally accepted accounting principles.
(e) Except as set forth on Section 3.11(e) of the Company
Disclosure Schedule, no Plan is subject to Title IV or Section 302 of ERISA or
Section 412 or 4971 of the Code. Without limiting the generality of the
foregoing, no Plan is a "multiemployer plan" within the meaning of Section
4001(a)(3) of ERISA (a "Multiemployer Plan") or a plan that has two or more
contributing sponsors at least two of whom are not under common control,
within the meaning of Section 4063 of ERISA and which is subject to Title IV
of ERISA (a "Multiple Employer Plan").
(f) There does not now exist, nor do any circumstances exist
that could result in, any liability under (i) Title IV of ERISA, (ii) section
302 of ERISA, (iii) sections 412 and 4971 of the Code, (iv) the continuation
coverage requirements of section 601 et seq. of ERISA and section 4980B of the
Code, or (v) corresponding or similar provisions of foreign laws or
regulations, other than a liability that arises solely out of, or relates
solely to, the Plans, that would be a liability of the Company or any of its
subsidiaries following the Effective Time. Without limiting the generality of
the foregoing, none of the Company, its subsidiaries nor any ERISA Affiliate
of the Company or any of its subsidiaries has engaged in any transaction
described in Section 4069 or Section 4204 or 4212 of ERISA. An "ERISA
Affiliate" means any entity, trade or business that is a member of a group
described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1)
of ERISA that includes the Company or any of its subsidiaries, or that is a
member of the same "controlled group" as the Company or any of its
subsidiaries, pursuant to Section 4001(a)(14) of ERISA.
SECTION 3.12 Taxes.
(a) The Company, and each of its subsidiaries and each
affiliated, combined, consolidated, unitary or aggregate group of which the
Company or any of its subsidiaries is a member (a "Company Affiliated Group")
has timely filed all federal, state, local and foreign income Tax Returns (as
hereinafter defined) required to be filed by it, and all other material Tax
Returns required to be filed by it, and has paid or caused to be paid all
Taxes (as hereinafter defined) required to be paid in respect of the periods
covered by such returns and has made adequate provision in the Company's
financial statements for payment of all Taxes that have not been paid, whether
or not shown as due and payable on any Tax Return in respect of all taxable
periods or portions thereof ending on or before the date hereof, except where
the failure to so file or pay or make adequate provision would not,
individually or in the aggregate, have a Material Adverse Effect on the
Company. There are no outstanding agreements, waivers or requests for waivers
extending the statutory period of limitation applicable to any Tax Return of
the Company, any of its subsidiaries or any Company Affiliated Group. Except
as set forth on Section 3.12 of the Company Disclosure Schedule, neither the
Company nor any of its subsidiaries (i) has been a member of a group filing
consolidated returns for federal income tax purposes (except for the group of
which the Company is the common parent), or (ii) is a party to or has any
liability pursuant to a Tax sharing or Tax indemnity agreement or any other
agreement of a similar nature that remains in effect.
(b) Except to the extent of amounts for which indemnification
has been provided to the Company pursuant to Article X of the Purchase
Agreement among the Company and Fisons plc and Fisons U.S. Inc. and Fisons
Corporation and Fisons U.S. Investment Holdings, Inc., dated August 29, 1995,
the Company, each of its subsidiaries and each Company Affiliated Group have
complied in all material respects with all rules and regulations relating to
the withholding of Taxes except to the extent any such failure to comply would
not, individually or in the aggregate, have a Material Adverse Effect on the
Company.
(c) For purposes of this Agreement, the term "Taxes" means all
taxes, charges, fees, levies or other assessments, including, without
limitation, income, gross receipts, excise, property, sales, transfer,
license, payroll, withholding, capital stock and franchise taxes, imposed by
the United States or any state, local or foreign government or subdivision or
agency thereof, including any interest, penalties or additions thereto. For
purposes of this Agreement, the term "Tax Return" means any report, return or
other information or document required to be supplied to a taxing authority in
connection with Taxes.
SECTION 3.13 Environmental Matters.
(a) Except as set forth on Section 3.13 of the Company Disclosure
Schedule, the Company and its subsidiaries have been and are in compliance
with all applicable Environmental Laws as in effect on the date hereof, except
for such violations and defaults as would not, individually or in the
aggregate, have a Material Adverse Effect on the Company.
(b) Except as set forth on Section 3.13 of the Company
Disclosure Schedule, the Company and its subsidiaries possess all
Environmental Permits required for the operation of the Business pursuant to
Environmental Laws as in effect on the date hereof, all such Environmental
Permits are in effect, there are no pending or to the best knowledge of the
Company threatened proceedings to revoke such Environmental Permits and the
Company and its subsidiaries are, to the best knowledge of the Company, in
compliance with all terms and conditions thereof, except for such failures to
possess or comply with Environmental Permits as would not, individually or in
the aggregate, have a Material Adverse Effect on the Company.
(c) Except as set forth on Section 3.13 of the Company
Disclosure Schedule, and except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect on the Company, neither the
Company nor any subsidiary has received any written notification that the
Company or any subsidiary as a result of any of the current or past operations
of the Business, or any property currently or formerly owned or leased in
connection with the Business, is or may be the subject of any proceeding,
investigation, claim, lawsuit or order by any Governmental Entity or other
person as to whether (i) any Remedial Action is or may be needed to respond
to a Release or threat of Release into the environment of Hazardous Substances
as defined under Environmental Laws as in effect on or prior to the date
hereof; (ii) any Environmental Liabilities and Costs imposed by, under or
pursuant to Environmental Laws as in effect on or prior to the date hereof
shall be sought, or proceeding commenced, related to or arising from the
current or past operations of the Business; or (iii) the Company or any
subsidiary is or may be a "potentially responsible party" for a Remedial
Action, pursuant to any Environmental Law as in effect on or prior to the date
hereof, for the costs of investigating or remediating Releases or threatened
Releases into the environment of Hazardous Substances, whether or not such
Release or threatened Release has occurred or is occurring at properties
currently or formerly owned or operated by the Company and its subsidiaries;
(d) Except as set forth on Section 3.13 of the Company
Disclosure Schedule, and except for the ACO's and Environmental Permits, none
of the Company and its subsidiaries has entered into any written agreement
with any Governmental Entity by which the Company or any subsidiary has
assumed responsibility, either directly or as a guarantor or surety, for the
remediation of any condition arising from or relating to a Release of Hazardous
Substances as defined under Environmental Laws as in effect on or prior to the
date hereof into the environment in connection with the Business, including
for cost recovery with respect to such Releases or threatened Releases;
(e) Except as set forth on Section 3.13 of the Company
Disclosure Schedule, and except for the matters covered by the ACO's, there is
not now and has not been at any time in the past, a Release in connection with
the current or former conduct of the Business of substances that would
constitute Hazardous Substances as regulated under Environmental Laws as in
effect on or prior to the date hereof for which the Company or any subsidiary
is required or is reasonably likely to be required to perform a Remedial
Action pursuant to Environmental Laws as currently in effect, or will incur
Environmental Liabilities and costs that would, individually or in the
aggregate, have a Material Adverse Effect on the Company.
(f) For purposes of this Section:
(i) "ACO" means either of the Administrative Consent
orders relating to the Fair Lawn, New Jersey or the Bridgewater, New
Jersey properties executed by the New Jersey Department of
Environmental Protection ("NJDEP") on August 29, 1985; such ACOs were
entered into by the NJDEP and the Fisher Scientific division of
Allied-Signal Inc. and titled In the Matter of Fisher Scientific
Division and the Administrative Consent order executive by the NJDEP
on July 31, 1986 and entered into by the NJDEP and Allied-Signal Inc.
titled In the Matter of Allied-Signal Inc., ECRA Case #'s 85820,
85821, 85822, 85823, 85824, 85825, 85826, 86049, 86103.
(ii) "Business" means the current and former businesses
of the Company and its subsidiaries including, but not limited to,
businesses or subsidiaries that have been previously sold by the
Company, its subsidiaries or any predecessors thereto.
(iii) "Environmental Laws" means all Laws relating to
the protection of the environment, or to any emission, discharge,
generation, processing, storage, holding, abatement, existence,
Release, threatened Release or transportation of any Hazardous
Substances, including, but not limited to, (i) CERCLA, the Resource
Conservation and Recovery Act, the Clean Water Act, the Clean Air
Act, the Toxic Substances Control Act, as amended (the "TSCA"),
property transfer statutes or requirements and (ii) all other
requirements pertaining to reporting, licensing, permitting,
investigation or remediation of emissions, discharges, Releases or
threatened Releases of Hazardous Substances into the air, surface
water, groundwater or land, or relating to the manufacture,
processing, distribution, use, sale, treatment, receipt, storage,
disposal, transport or handling of Hazardous Substances.
(iv) "Environmental Liabilities and Costs" means all
damages, natural resource damages, claims, losses, expenses, costs,
obligations, and liabilities (collectively, "Losses"), whether direct
or indirect, known or unknown, current or potential, past, present or
future, imposed by, under or pursuant to Environmental Laws,
including, but not limited to, all Losses related to Remedial
Actions, and all fees, capital costs, disbursements, penalties, fines
and expenses of counsel, experts, contractors, personnel and
consultants based on, arising out of or otherwise in respect of (i)
the Company, any subsidiary (including predecessors and former
subsidiaries) or property owned, used or leased by the Company or any
subsidiary in respect of the Business at any time; (ii) conditions
existing on, under, around or above any such property; and (iii)
expenditures necessary to cause any such property or the Company or
any subsidiary to be in compliance with requirements of Environmental
Laws.
(v) "Environmental Permits" means any federal, state,
provincial or local permit, license, registration, consent, order,
administrative consent order, certificate, approval or other
authorization necessary for the conduct of the Business as currently
conducted under any Environmental Law.
(vi) "Hazardous Substances" means any substance that
(a) is defined, listed or identified or otherwise regulated as a
"hazardous waste," "hazardous material" or "hazardous substance"
"toxic substance," "hazardous air pollution," "polluted," or
"contaminated" or words of similar meaning and regulatory effect
under CERCLA, TSCA or the Resource Conservation and Recovery Act or
any other Environmental Law or analogous state law (including,
without limitation, radioactive substances, polycholorinated-
biphenyls, petroleum and petroleum derivatives and products) or (b)
requires investigation, removal or remediation under applicable
Environmental Law.
(vii) "ISRA" means the Industrial Site Recovery Act of
New Jersey, N.J.S.A. 13:1K-6 et seq.
(viii) "Laws" means all (A) constitutions, treaties,
statutes, laws (including, but not limited to, the common law),
rules, regulations, ordinances or codes of any Governmental Entity,
(B) Environmental Permits, and (C) orders, decisions, injunctions,
judgments, awards and decrees of any Governmental Entity.
(ix) "Release" means as defined in CERCLA or the
Resource Conservation and Recovery Act, without limiting its
application to violations or alleged violations of those statutes,
but not including any discharge, spill or emission that is the
subject of, and in compliance with an Environmental Permit.
(x) "Remedial Action" means all actions required by
Governmental Entity pursuant to Environmental Law or otherwise taken
as necessary to comply with Environmental Law to (i) clean up,
remove, treat or in any other way remediate any Hazardous Substances;
(ii) prevent the release of Hazardous Substances so that they do not
migrate or endanger or threaten to endanger public health or welfare
or the environment; or (iii) perform studies, investigations or
monitoring in respect of any such matter.
SECTION 3.14 Absence of Certain Changes. Except as disclosed in
the SEC Reports filed prior to the date of this Agreement or as disclosed in
announcements or other information attached in Section 3.14 of the Company
Disclosure Schedule, concerning future performance of the Company, since March
31, 1997, (i) the Company has conducted its business only in the ordinary
course consistent with past practice and (ii) there has not been any Material
Adverse Effect on the Company.
SECTION 3.15 Rights Agreement. The Company and the Company Board
have authorized all necessary action to amend the Rights Agreement (without
redeeming the Rights) so that none of the execution or delivery of this
Agreement, the making of the Offer, the acquisition of Shares pursuant to the
Offer or the consummation of the Merger will (i) cause any Rights issued
pursuant to the Rights Agreement to become exercisable or to separate from the
stock certificates to which they are attached, (ii) cause FSI or any of their
Affiliates to be an Acquiring Person (as each such term is defined in the
Rights Agreement) or (iii) trigger other provisions of the Rights Agreement,
including giving rise to a Distribution Date (as such term is defined in the
Rights Agreement), and such amendment shall be in full force and effect from
and after the date hereof.
SECTION 3.16 Brokers. Except for the engagement of the
Investment Bankers (as defined in Section 3.17), none of the Company, any of
its subsidiaries, or any of their respective officers, directors or employees
has employed any broker or finder or incurred any liability for any brokerage
fees, commissions or finder's fees in connection with the transactions
contemplated by this Agreement.
SECTION 3.17 Opinion of Investment Bankers. The Company has
received the written opinion of each of Lazard Freres & Co. LLC and Salomon
Brothers Inc (the "Investment Bankers") to the effect that, as of September
11, 1997, the consideration to be received by the holders of Common Shares
pursuant to the Merger is fair to the Company's stockholders from a financial
point of view.
SECTION 3.18 Material Contracts. The Company has provided or
made available to FSI (i) true and complete copies of all written material
contracts and agreements ("Material Contracts"), or (ii) with respect to such
Material Contracts that have not been reduced to writing, a written
description thereof, each of which is listed on Section 3.18 of the Company
Disclosure Schedule. Neither the Company nor any of its subsidiaries is, or
has received any notice or has any knowledge that any other party is, in
default in any respect under any such Material Contract, except for those
defaults which would not reasonably be likely, either individually or in the
aggregate, to have a Material Adverse Effect with respect to the Company; and
there has not occurred any event that, with the lapse of time or the giving of
notice or both, would constitute such a material default.
SECTION 3.19 Board Recommendation. The Company Board, at a
meeting duly called and held, has (a) determined that this Agreement and the
transactions contemplated hereby, taken together, are advisable and in the best
interests of the Company and its stockholders, and (b) subject to the other
provisions hereof, resolved to recommend that the holders of the Common Shares
approve this Agreement and the transactions contemplated herby, including the
Merger.
SECTION 3.20 Required Company Vote. The Company Stockholder
Approval, being the affirmative vote of a majority of the Common Shares, is
the only vote of the holders of any class or series of the Company's
securities necessary to approve this Agreement, the Merger and the other
transactions contemplated hereby.
SECTION 3.21 Intellectual Property.
The Company and its subsidiaries own or have the valid right to
use all material Intellectual Property used in or necessary to the business,
free and clear of all liens, claims, and encumbrances and, except for the
License Agreements set forth on Section 3.21(a) of the Company Disclosure
Schedule, free and clear of all material licenses to third parties. As
employed herein, the term "Intellectual Property" shall mean: (i) registered
and unregistered trademarks, service marks, slogans, trade names, logos and
trade dress (collectively, and together with the good will associated with
each, "Trademarks"); (ii) patents, patent applications and invention
disclosures (collectively, "Patents"); (iii) registered and unregistered
copyrights, including, but not limited to, copyrights in software and
databases (collectively, "Copyrights"); (iv) software programs and databases
(together, "Software"); (v) unpatented or unpatentable methods, devices,
technology, trade secrets, proprietary information and know-how (collectively,
"Technology"); and (vi) agreements pursuant to which the Company or a
subsidiary has obtained or granted the right to use any of the foregoing
(collectively, or other agreements to which the Company or any subsidiary is a
party relating to the development, acquisition, use, sale or licensure of
Intellectual Property "License Agreements").
SECTION 3.22 Related Party Transactions. Except as set forth in
Section 3.23 of the Disclosure Schedule hereto, no director, officer, partner,
"affiliate" or "associate" (as such terms are defined in Rule 12b-2 under the
Exchange Act) of the Company or any of its subsidiaries (or, with respect to
clause (i) of this sentence, to the knowledge of the Company, its employees)
(i) has borrowed any monies from or has outstanding any indebtedness or other
similar obligations to the Company or any of its subsidiaries; (ii) owns any
direct or indirect interest of any kind in, or is a director, officer,
employee, partner, affiliate or associate of, or consultant or lender to, or
borrower from, or has the right to participate in the management, operations
or profits of, any person or entity which is (1) a competitor, supplier,
customer, distributor, lessor, tenant, creditor or debtor of the Company or
any of its subsidiaries, (2) engaged in a business related to the business of
the Company or any of its subsidiaries, (3) participating in any transaction
to which the Company or any of its subsidiaries is a party or (iii) is
otherwise a party to any contract, arrangement or understanding with the
Company or any of its subsidiaries.
SECTION 3.23 State Takeover Statutes. The Company Board has
taken such action so that no statute, takeover statute or similar statute or
regulation of the State of Delaware (and, to the knowledge of the Company
after due inquiry, of any other state or jurisdiction) applies to this
Agreement, the Merger, or any of the other transactions contemplated hereby.
Except for the Rights Agreement and except as set forth in Section 3.23 of the
Company Disclosure Schedule, neither the Company nor any of its subsidiaries
has any rights plan, preferred stock or similar arrangement which have any of
the aforementioned consequences in respect of the transactions contemplated
hereby.
SECTION 3.24 Labor Relations and Employment.
(a) Except as set forth on Section 3.24(a) of the Company
Disclosure Schedule and except for matters which would not (other than in the
case of clause (iii) or (iv) of this sentence) result in a Material Adverse
Effect, (i) there is no labor strike, dispute, slowdown, stoppage or lockout
actually pending, or, to the best knowledge of the Company, threatened against
the Company or any of its subsidiaries, and during the past three years there
has not been any such action; (ii) to the best knowledge of the Company, no
union claims to represent the employees of the Company or any of its
subsidiaries; (iii) neither the Company nor any of its subsidiaries is a party
to or bound by any collective bargaining or similar agreement with any labor
organization, or work rules or practices agreed to with any labor
organization or employee association applicable to employees of the Company or
any of its subsidiaries; (iv) none of the employees of the Company or any of
its subsidiaries is represented by any labor organization and the Company does
not have any knowledge of any current union organizing activities among the
employees of the Company or any of its subsidiaries, nor does any question
concerning representation exist concerning such employees; (v) the Company and
its subsidiaries are, and have at all times been, in material compliance with
all applicable laws respecting employment and employment practices, terms and
conditions of employment, wages, hours of work and occupational safety and
health, and are not engaged in any unfair labor practices as defined in the
National Labor Relations Act or other applicable law, ordinance or regulation;
(vi) there is no unfair labor practice charge or complaint against the Company
or any of its subsidiaries pending or, to the knowledge of the Company,
threatened before the National Labor Relations Board or any similar state or
foreign agency; (vii) there is no grievance arising out of any collective
bargaining agreement or other grievance procedure; (viii) no charges with
respect to or relating to the Company or any of its subsidiaries are pending
before the Equal Employment Opportunity Commission or any other agency
responsible for the prevention of unlawful employment practices; (ix) neither
the Company nor any of its subsidiaries has received notice of the intent of
any federal, state, local or foreign agency responsible for the enforcement of
labor or employment laws to conduct an investigation with respect to or
relating to the Company or any of its subsidiaries and no such investigation
is in progress; and (x) there are no complaints, lawsuits or other proceedings
pending or to the best knowledge of the Company threatened in any forum by or
on behalf of any present or former employee of the Company or any of its
subsidiaries alleging breach of any express or implied contract of employment,
any law or regulation governing employment or the termination thereof or other
discriminatory, wrongful or tortious conduct in connection with the employment
relationship.
(b) To the best knowledge of the Company, since the enactment of
the Worker Adjustment and Retraining Notification ("WARN") Act, there has not
been (i) a "plant closing" (as defined in the WARN Act) affecting any site of
employment or one or more facilities or operating units within any site of
employment or facility of the Company or any of its subsidiaries; or (ii) a
"mass layoff" (as defined in the WARN Act) affecting any site of employment or
facility of the Company or any of its subsidiaries; nor has the Company or any
of its subsidiaries been affected by any transaction or engaged in layoffs or
employment terminations sufficient in number to trigger application of any
similar state or local law. Except as set forth in Section 3.24(b) of the
Company Disclosure Schedule, to the best knowledge of the Company, none of the
employees of the Company or any of its subsidiaries has suffered an
"employment loss" (as defined in the WARN Act) since three months prior to the
date of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF FSI
FSI represents and warrants to the Company as follows:
SECTION 4.1 Organization and Qualification. FSI is a corporation
duly organized, validly existing and in good standing under the laws of its
state or jurisdiction of incorporation and is in good standing as a foreign
corporation in each other jurisdiction where the properties owned, leased or
operated, or the business conducted, by it require such qualification and
where failure to be in good standing or to so qualify would have a Material
Adverse Effect on FSI. The term "Material Adverse Effect on FSI", as used in
this Agreement, means any change in or effect on the business, financial
condition, results of operations or reasonably forseeable prospects of FSI or
any of its subsidiaries that would be materially adverse to FSI.
SECTION 4.2 Authority Relative to this Agreement.
(a) FSI has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of FSI and no other corporate proceedings on the part of
FSI are necessary to authorize this Agreement or to consummate the transactions
so contemplated. This Agreement has been duly and validly executed and
delivered by FSI and, assuming this Agreement constitutes a valid and binding
obligation of the Company, this Agreement constitutes a valid and binding
agreement of FSI, enforceable against FSI in accordance with its terms.
(b) Other than in connection with, or in compliance with, the
provisions of the DGCL with respect to the transactions contemplated hereby,
the Exchange Act, the securities laws of the various states and the HSR Act, no
authorization, consent or approval of, or filing with, any Governmental Entity
is necessary for the consummation by the Company of the transactions
contemplated by this Agreement other than authorizations, consents and
approvals the failure to obtain, or filings the failure to make, which would
not, in the aggregate, have a Material Adverse Effect on FSI.
SECTION 4.3 No Violation. Neither the execution or delivery of
this Agreement by FSI nor the consummation by FSI of the transactions
contemplated hereby will (i) constitute a breach or violation of any provision
of the Certificate of Incorporation or By-Laws of FSI or (ii) constitute a
breach, violation or default (or any event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination of,
or accelerate the performance required by, or result in the creation of any
lien or encumbrance upon any of the properties or assets of FSI under, any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument to which FSI is a party or by which it or any of its
properties or assets are bound, other than breaches, violations, defaults,
terminations, accelerations or creation of liens and encumbrances which, in
the aggregate would not have a Material Adverse Effect on FSI.
SECTION 4.4 Information. None of the information supplied by FSI
in writing (other than projections of future financial performance)
specifically for inclusion or incorporation by reference in (i) the Form S-4
or (ii) the Other Filings will, at the respective times filed with the SEC or
other Governmental Entity and, in addition, in the case of the Proxy
Statement, at the date it or any amendment or supplement is mailed to
stockholders, at the time of the Special Meeting and at the Effective Time,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, no representation is
made by FSI with respect to statements made in any of the foregoing documents
based upon information supplied by the Company.
SECTION 4.5 Financing. Schedule 6.02(e) of the disclosure
schedule delivered by FSI and attached hereto (the "FSI Disclosure Schedule")
sets forth true and complete copies of written documentation from third parties
which provides for financing in amounts sufficient to consummate the
transactions contemplated hereby as contemplated by Section 6.02(e).
SECTION 4.6 Delaware Law. FSI was not immediately prior to the
execution of this Agreement, an "interested stockholder" within the meaning of
Section 203 of the DGCL.
SECTION 4.7 Information. FSI represents and warrants that, as of
the date hereof, neither FSI, its representatives nor affiliates has formed an
actual belief that any of the representations or warranties of the Company are
untrue or incorrect in any material respect.
ARTICLE V
COVENANTS
SECTION 5.1 Conduct of Business of the Company. Except as
contemplated by this Agreement or as expressly agreed to in writing by FSI,
during the period from the date of this Agreement to the Effective Time, the
Company will, and will cause each of its subsidiaries to, conduct its
operations according to its ordinary and usual course of business and
consistent with past practice and use its and their respective reasonable best
efforts to preserve intact their current business organizations, keep
available the services of their current officers and employees and preserve
their relationships with customers, suppliers, licensors, licensees,
advertisers, distributors and others having business dealings with them and to
preserve goodwill. Without limiting the generality of the foregoing, and
except as (x) otherwise expressly provided in this Agreement, (y) required by
law, or (z) set forth on Section 5.01 of the Company Disclosure Schedule,
prior to the Effective Time, the Company will not, and will cause its
subsidiaries not to, without the consent of FSI (which consent shall not be
unreasonably withheld):
(i) except with respect to annual bonuses made in the
ordinary course of business consistent with past practice, adopt or
amend in any material respect any bonus, profit sharing,
compensation, severance, termination, stock option, stock
appreciation right, pension, retirement, employment or other employee
benefit agreement, trust, plan or other arrangement for the benefit
or welfare of any director, officer or employee of the Company or any
of its subsidiaries or increase in any manner the compensation or
fringe benefits of any director, officer or employee of the Company
or any of its subsidiaries or pay any benefit not required by any
existing agreement or place any assets in any trust for the benefit
of any director, officer or employee of the Company or any of its
subsidiaries (in each case, except with respect to employees and
directors in the ordinary course of business consistent with past
practice);
(ii) incur any indebtedness for borrowed money in
excess of $1,000,000, other than indebtedness under existing lines of
credit drawn to fund working capital (defined as accounts receivable
plus inventory minus accounts payable) up to $25 million;
(iii) expend funds for capital expenditures in excess
of $1,000,000;
(iv) sell, lease, license, mortgage or otherwise
encumber or subject to any lien or otherwise dispose of any of its
properties or assets other than immaterial properties or assets (or
immaterial portions of properties or assets), except in the ordinary
course of business consistent with past practice;
(v) (x) declare, set aside or pay any dividends on, or
make any other distributions in respect of, any of its capital stock
(except (A) as contemplated by the Rights Agreement or the Restricted
Unit Plan and (B) for dividends paid by subsidiaries to the Company
with respect to capital stock and (C) for regular quarterly dividends
in an amount not to exceed the lesser of $0.02 per share per quarter
and the amount paid per share in the immediately preceding quarter,
(y) split, combine or reclassify any of its capital stock or issue or
authorize the issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock or (z)
purchase, redeem or otherwise acquire any shares of capital stock of
the Company or any of its subsidiaries or any other securities
thereof or any rights, warrants or options to acquire any such shares
or other securities;
(vi) authorize for issuance, issue, deliver, sell or
agree or commit to issue, sell or deliver (whether through the
issuance or granting of options, warrants, commitments,
subscriptions, rights to purchase or otherwise), pledge or otherwise
encumber any shares of its capital stock or the capital stock of any
of its subsidiaries, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any
such shares, voting securities or convertible securities or any other
securities or equity equivalents (including without limitation stock
appreciation rights) (other than issuances upon exercise of Options
or pursuant to the Stock Plans or the Rights Agreement);
(vii) amend its Restated Certificate of Incorporation,
By-Laws or equivalent organizational documents or alter through
merger, liquidation, reorganization, restructuring or in any other
fashion the corporate structure or ownership of any material
subsidiary of the Company;
(viii) make or agree to make any acquisition of assets
which is material to the Company and its subsidiaries, taken as a
whole, except for (x) purchases of inventory in the ordinary course
of business or (y) pursuant to purchase orders entered into in the
ordinary course of business which do not call for payments in excess
of $10,000,000 per annum; or
(ix) settle or compromise any shareholder derivative
suits arising out of the transactions contemplated hereby or any
other litigation (whether or not commenced prior to the date of this
Agreement) or settle, pay or compromise any claims not required to be
paid, individually in an amount in excess of $1,000,000, other than
in consultation and cooperation with FSI, and, with respect to any
such settlement, with the prior written consent of FSI.
SECTION 5.2 Access to Information. From the date of this
Agreement until the Effective Time, the Company will, and will cause its
subsidiaries, and each of their respective officers, directors, employees,
counsel, advisors and representatives (collectively, the "Company
Representatives") to, give FSI and their respective officers, employees,
counsel, advisors, representatives (collectively, the "FSI Representatives")
and representatives of financing sources identified by FSI reasonable access,
upon reasonable notice and during normal business hours, to the offices and
other facilities and to the books and records of the Company and its
subsidiaries and will cause the Company Representatives and the Company's
subsidiaries to furnish FSI and the FSI Representatives and representatives of
financing sources identified by FSI with such financial and operating data
and such other information with respect to the business and operations of the
Company and its subsidiaries as FSI and representatives of financing sources
identified by FSI may from time to time reasonably request. FSI agrees that
any information furnished pursuant to this Section 5.02 will be subject to the
provisions of the letter agreement dated June 23, 1997 between Thomas H. Lee
Company ("THL") and the Company (the "Confidentiality Agreement").
SECTION 5.3 Efforts.
(a) Each of the Company and FSI shall, and the Company shall
cause each of its subsidiaries to, make all necessary filings with
Governmental Entities as promptly as practicable in order to facilitate prompt
consummation of the transactions contemplated by this Agreement. In addition,
each of FSI and the Company will use its reasonable best efforts (including,
without limitation, payment of any required fees) and will cooperate fully with
each other to (i) comply as promptly as practicable with all governmental
requirements applicable to the transactions contemplated by this Agreement,
including the making of all filings necessary or proper under applicable laws
and regulations to consummate and make effective the transactions contemplated
by this Agreement, including, but not limited to, cooperation in the
preparation and filing of the Form S-4 and any actions or filings related
thereto, the Proxy Statement or other foreign filings and any amendments to
any thereof and (ii) obtain promptly all consents, waivers, approvals,
authorizations or permits of, or registrations or filings with or
notifications to (any of the foregoing being a "Consent"), any Governmental
Entity necessary for the consummation of the transactions contemplated by this
Agreement (except for such Consents the failure of which to obtain would not
prevent or materially delay the consummation of the Merger). Subject to the
Confidentiality Agreement, FSI and the Company shall furnish to one and other
such necessary information and reasonable assistance as FSI or the Company may
reasonably request in connection with the foregoing.
(b) Without limiting Section 5.03(a), FSI and the Company shall
each (i) promptly make or cause to be made the filings required of such party
under the HSR Act with respect to the Merger; (ii) use its best efforts to
avoid the entry of, or to have vacated or terminated, any decree, order, or
judgment that would restrain, prevent or delay the consummation of the Merger,
including without limitation defending through litigation on the merits any
claim asserted in any court by any party; and (iii) take any and all steps
which, in such party's judgment, are commercially reasonable to avoid or
eliminate each and every impediment under any antitrust, competition, or trade
regulation law that may be asserted by any Governmental Entity with respect
to the Merger so as to enable consummation thereof to occur as soon as
reasonably possible. Each party hereto shall promptly notify the other
parties of any communication to that party from any Governmental Entity and
permit the other parties to review in advance any proposed communication to
any Governmental Entity. FSI and the Company shall not (and shall cause their
respective affiliates and representatives not to) agree to participate in any
meeting with any Governmental Entity in respect of any filings, investigation
or other inquiry unless it consults with the other party in advance and, to
the extent permitted by such Governmental Entity, gives the other party the
opportunity to attend and participate thereat. Subject to the Confidentiality
Agreement, each of the parties hereto will coordinate and cooperate fully with
the other parties hereto in exchanging such information and providing such
assistance as such other parties may reasonably request in connection with the
foregoing and in seeking early termination of any applicable waiting periods
under the HSR Act or in connection with other Consents. Each of the Company
and FSI agrees to respond promptly to and comply fully with any request for
additional information or documents under the HSR Act. Subject to the
Confidentiality Agreement, the Company will provide FSI, and FSI will provide
the Company, with copies of all correspondence, filings or communications (or
memoranda setting forth the substance thereof) between such party or any of
its representatives, on the one hand, and any Governmental Entity or members
of its staff, on the other hand, with respect to this Agreement and the
transactions contemplated hereby.
(c) FSI shall use commercially reasonable efforts to cause the
financing necessary for satisfaction of the condition in Section 6.02(e) to be
obtained on the terms set forth in the commitment letters attached to Schedule
6.02(e) of the FSI Disclosure Schedule; provided, however, that FSI shall be
entitled to (i) enter into commitments for equity and debt financing with
other nationally recognized financial institutions, which commitments will have
substantially the same terms as those set forth in the commitment letters and
which commitments may be substituted for such commitment letters and (ii)
modify the capital structure set forth in such commitment letters so long as
the total committed common equity equals at least $350 million (including
Common Shares to be retained), the aggregate Cash Price paid to all
stockholders of the Company is no less than otherwise would have been paid in
accordance with this Agreement and such modified financing is no less certain
than that set forth in such commitment letter.
SECTION 5.4 Public Announcements. The Company, on the one hand,
and FSI, on the other hand, agree to consult promptly with each other prior to
issuing any press release or otherwise making any public statement with
respect to the Merger and the other transactions contemplated hereby, agree to
provide to the other party for review a copy of any such press release or
statement, and shall not issue any such press release or make any such public
statement prior to such consultation and review, unless required by applicable
law or any listing agreement with a securities exchange.
SECTION 5.5 Employee Benefit Arrangements.
(a) FSI agrees that the Company will honor, and, from and after
the Effective Time, FSI will cause the Surviving Corporation to honor, in
accordance with their respective terms as in effect on the date hereof, the
employment, severance and bonus agreements and arrangements to which the
Company is a party which are set forth on Sections 3.07 and 5.05 of the
Company Disclosure Schedule.
(b) FSI agrees that for a period of two years following the
Effective Time, the Surviving Corporation shall continue the (i) compensation
(including bonus and incentive awards) programs and plans and (ii) employee
benefit and welfare plans, programs, contracts, agreements and policies
(including insurance and pension plans), fringe benefits and vacation policies
which are currently provided by the Company; provided that notwithstanding
anything in this Agreement to the contrary the Surviving Corporation shall not
be required to maintain any individual plan or program so long as the benefit
plan and agreements maintained by the Surviving Corporation are, in the
aggregate, not materially less favorable than those provided by the Company
immediately prior to the date of this Agreement.
SECTION 5.6 Indemnification; Directors' and Officers' Insurance.
(a) From and after the Effective Time, FSI shall, and shall
cause the Surviving Corporation to, indemnify, defend and hold harmless the
present and former officers, directors, employees and agents of the Company
and its subsidiaries (the "Indemnified Parties") against all losses, claims,
damages, expenses or liabilities arising out of or related to actions or
omissions or alleged actions or omissions occurring at or prior to the
Effective Time (i) to the full extent permitted by Delaware law or, if the
protections afforded thereby to an Indemnified Person are greater, (ii) to the
same extent and on the same terms and conditions (including with respect to
advancement of expenses) provided for in the Company's Restated Certificate of
Incorporation and By-Laws and agreements in effect at the date hereof (to the
extent consistent with applicable law), which provisions will survive the
Merger and continue in full force and effect after the Effective Time.
Without limiting the foregoing, (i) FSI shall, and shall cause the Surviving
Corporation to, periodically advance expenses (including attorney's fees) as
incurred by an Indemnified Person with respect to the foregoing to the full
extent permitted under applicable law, and (ii) any determination required to
be made with respect to whether an Indemnified Party shall be entitled to
indemnification shall, if requested by such Indemnified Party, be made by
independent legal counsel selected by the Surviving Corporation and reasonably
satisfactory to such Indemnified Party.
(b) FSI agrees that the Company, and, from and after the
Effective Time, the Surviving Corporation, shall cause to be maintained in
effect for not less than six years from the Effective Time the current
policies of the directors' and officers' liability insurance maintained by the
Company; provided that the Surviving Corporation may substitute therefor other
policies of at least the same coverage amounts and which contain terms and
conditions not less advantageous to the beneficiaries of the current policies
and provided that such substitution shall not result in any gaps or lapses in
coverage with respect to matters occurring prior to the Effective Time; and
provided, further, that the Surviving Corporation shall not be required to pay
an annual premium in excess of 250% of the last annual premium paid by the
Company prior to the date hereof and if the Surviving Corporation is unable to
obtain the insurance required by this Section 5.06(c) it shall obtain as much
comparable insurance as possible for an annual premium equal to such maximum
amount.
(c) This Section 5.06 shall survive the consummation of the
Merger at the Effective Time, is intended to benefit the Company, the
Surviving Corporation and the Indemnified Parties, shall be binding on all
successors and assigns of FSI and the Surviving Corporation, and shall be
enforceable by the Indemnified Parties.
SECTION 5.7 Notification of Certain Matters. FSI and the Company
shall promptly notify each other of (i) the occurrence or non-occurrence of
any fact or event which would be reasonably likely (A) to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Effective Time or (B) to cause any covenant, condition or agreement under this
Agreement not to be complied with or satisfied and (ii) any failure of the
Company, or FSI, as the case may be, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder;
provided, however, that no such notification shall affect the representations
or warranties of any party or the conditions to the obligations of any party
hereunder. Each of the Company and FSI shall give prompt notice to the other
parties hereof of any notice or other communication from any third party
alleging that the consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement.
SECTION 5.8 Rights Agreement. Subject to the provisions of
Section 5.15, the Company covenants and agrees that it will not (i) redeem the
Rights, (ii) amend the Rights Agreement or (iii) take any action which would
allow any Person (as defined in the Rights Agreement) other than FSI to
acquire beneficial ownership of 15% or more of the Common Shares without
causing a Distribution Date (as such term is defined in the Rights Agreement)
to occur. Notwithstanding the foregoing, the Company may take any of the
actions described in the preceding sentence, if the Company Board determines
in good faith, after consultation with counsel, that failing to take such
action could reasonably be expected to result in a breach of fiduciary duties
of the Company Board.
SECTION 5.9 State Takeover Laws. The Company shall, upon the
request of FSI, take all reasonable steps to assist in any challenge by FSI to
the validity or applicability to the transactions contemplated by this
Agreement, including the Merger, of any state takeover law.
SECTION 5.10 No Solicitation.
(a) From and after the date hereof until the termination of this
Agreement, the Company and its affiliates shall not, and shall instruct their
respective officers, directors, employees, agents or other representatives
(including, without limitation, any investment banker, attorney or accountant
retained by the Company or its subsidiaries) (the "Representatives") not to,
(i) directly or indirectly solicit, initiate, or
encourage (including by way of furnishing non-public information or
assistance), or take any other action to facilitate, any inquiries or
proposals from any person that constitute, or may reasonably be
expected to lead to, an acquisition, purchase, merger, consolidation,
share exchange, recapitalization, business combination or other
similar transaction involving 20% or more of the assets or any
securities of, any merger consolidation or business combination with,
or any public announcement of a proposal, plan, or intention to do
any of the foregoing by, the Company or any of its subsidiaries (such
transactions being referred to herein as "Acquisition Transactions"),
(ii) enter into, maintain, or continue discussions or
negotiations with any person in furtherance of such inquiries or to
obtain a proposal for an Acquisition Transaction,
(iii) agree to or endorse any proposal for an
Acquisition Transaction, or
(iv) authorize or permit the Company's or any of its
affiliates' Representatives to take any such action;
provided, however, that nothing in this Agreement shall prohibit the Company
Board from
(A) furnishing information to, and engaging in discussions
or negotiations with, any person or entity that makes an unsolicited
written, bona fide proposal to acquire the Company and/or its
subsidiaries pursuant to a merger, consolidation, share exchange, tender
offer or other similar transaction, but only to the extent that
independent legal counsel (who may be the Company's regularly engaged
outside legal counsel) advises the Company Board in good faith that
failure to furnish such information or engage in such discussions or
negotiations with such person or entity would be a breach of the
fiduciary duties of the Company Board, provided, that prior to taking
such action, the Company Board notifies FSI of its intentions and
obtains an executed confidentiality agreement from the appropriate
parties substantially similar to the Confidentiality Agreement,
(B) failing to make or withdrawing or modifying its
recommendation referred to in Section 5.14 if the Company Board, after
consultation with and based upon the advice of independent legal
counsel (who may be the Company's regularly engaged outside legal
counsel), determines in good faith that such action is necessary for the
Company board to comply with its fiduciary duties to stockholders under
applicable law, and
(C) disclosing to the Company's shareholders a position
contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act
with respect to any tender offer, or taking any other legally required
action (including, without limitation, the making of public disclosure
as may be necessary or advisable under applicable securities laws);
and provided further, that the Company's or the Board of Directors' exercise
of its rights under clause (A), (B) or (C) above shall not constitute a breach
by the Company of this Agreement.
(b) The Company will promptly notify FSI of the receipt of any
proposal for an Acquisition Transaction, the terms and conditions of such
proposal and the identity of the person making it. The Company also will
promptly notify FSI of any change to or modification of such proposal for an
Acquisition Transaction and the terms and conditions thereof.
(c) Subject to the provisions of subsection (b), the Company
shall immediately cease and cause its affiliates and its and their
Representatives to cease any and all existing activities, discussions or
negotiations with any parties (other than FSI) conducted heretofore with
respect to any of the foregoing, and shall use its reasonable best efforts to
cause any such parties in possession of confidential information about the
Company that was furnished by or on behalf of the Company to return or destroy
all such information in the possession of any such party (other than FSI) or
in the possession of any Representative of any such party.
SECTION 5.11 Affiliate Letters. Prior to the Closing Date, the
Company shall deliver to FSI a letter identifying all persons who are, at the
time this Agreement is submitted for approval to the stockholders of the
Company, "affiliates" of the Company for purposes of Rule 145 under the
Securities Act. The Company shall use its reasonable best efforts to cause
each such person to deliver to FSI on or prior to the Closing Date a written
agreement in a form reasonably satisfactory to FSI and the Company.
SECTION 5.12 ISRA Requirements. Prior to the Closing Date, the
Company shall be responsible for compliance with the requirements of ISRA
applicable to this transaction relating to obtaining the necessary approvals
for each property subject to ISRA that will allow this transaction to be
completed. The Company shall consult with FSI with respect to its ISRA
filings and strategy, including allowing FSI to comment on such filing where
time permits, and shall provide copies of all correspondence to and from the
DEP with respect to ISRA compliance.
SECTION 5.13 Reports. The Company shall provide FSI with monthly
financial statements, broken out by business segment, no later than the fifth
business day following the end of each calendar month following the date of
this Agreement.
SECTION 5.14 Stockholders' Meeting.
(a) The Company, acting through the Company Board, shall, in
accordance with applicable law:
(i) duly call, give notice of, convene and hold a
special meeting of its stockholders (the "Special Meeting") as soon
as practicable following the execution of this Agreement for the
purpose of considering and taking action upon this Agreement;
(ii) prepare and file with the SEC a preliminary
proxy statement relating to this Agreement, and use its reasonable
efforts (A) to obtain and furnish the information required to be
included by the SEC in a definitive proxy statement (the "Proxy
Statement") and Form S-4 in which the Proxy Statement will be
included (collectively with the Proxy Statement, the "Form S-4") and,
after consultation with FSI, to respond promptly to any comments made
by the SEC with respect to the preliminary proxy statement and cause
the Proxy Statement to be mailed to its stockholders and (B) to
obtain the necessary approvals of the Merger and this Agreement by
its stockholders; and
(iii) subject to the fiduciary duties of the Company
Board as provided in Section 5.10, include in the Proxy Statement the
recommendation of the Company Board that stockholders of the Company
vote in favor of the approval of this Agreement.
(b) The Company represents that the Form S-4 will comply in all
material respects with the provisions of applicable federal securities laws
and, on the date filed with the SEC and on the date first published, sent or
given to the Company's stockholders, shall not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading, except that no
representation is made by the Company with respect to information supplied by
FSI in writing for inclusion in the Form S-4. Each of the Company, on the one
hand, and FSI, on the other hand, agree promptly to correct any information
provided by either of them for use in the Form S-4 if and to the extent that
it shall have become false or misleading, and the Company further agrees to
take all steps necessary to cause the Form S-4 as so corrected to be filed
with the SEC and to be disseminated to the holders of Shares, in each case, as
and to the extent required by applicable federal securities laws.
ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 6.1 Conditions. The respective obligations of FSI and
the Company to consummate the Merger are subject to the satisfaction, at or
before the Effective Time, of each of the following conditions:
(a) Stockholder Approval. The stockholders of the Company shall
have duly approved the transactions contemplated by this Agreement (the
"Stockholder Approval"), if required by applicable law.
(b) Form S-4. The Form S-4 shall have become effective under
the Securities Act and shall not be the subject of any stop order or
proceedings seeking a stop order, and any material "blue sky" and other state
securities laws applicable to the registration and qualification of Common
Shares to be retained in the Merger shall have been complied with.
(c) Solvency Letters. Each of the Board of Directors of the
Company and FSI shall have received a solvency letter, in form and substance
and from an independent evaluation firm reasonably satisfactory to it, as to
the solvency of the Company and its subsidiaries on a consolidated basis after
giving effect to the transactions contemplated by this Agreement, including
all financings contemplated hereby.
(d) Orders and Injunctions. An order shall have been entered in
any action or proceeding before any United States federal or state court or
governmental agency or other United States regulatory or administrative agency
or commission (an "Order"), or a preliminary or permanent injunction by a
United States court of competent jurisdiction shall have been issued and
remain in effect (an "Injunction"), which, in either case, would have the
effect of (i) preventing consummation of the Merger, or (ii) imposing material
limitations on the ability of FSI effectively to acquire or hold the business
of the Company and its subsidiaries taken as a whole or to exercise full
rights of ownership of the Shares acquired by it; provided, however, that in
order to invoke this condition, FSI shall have used in its judgment, its
commercially reasonable best efforts to prevent such Order or Injunction or
ameliorate the effects thereof.
(e) Illegality. There shall have been any United States federal
or state statute, rule or regulation enacted or promulgated after the date of
this Agreement that could in the reasonable judgment of FSI result in any of
the material adverse consequences referred to in paragraph (c) above.
(f) HSR Act. Any waiting period (and any extension thereof)
under the HSR Act applicable to the Merger shall have expired or terminated.
SECTION 6.2 Conditions to Obligations of FSI. The obligations of
FSI to effect the Merger are further subject to the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement shall be true and
correct in all respects in each case as of the date of this Agreement and as
of the Closing Date as though made on and as of the Closing Date; provided,
however, that, with respect to representations and warranties other than
Sections 3.02 and 3.03(a) and representations and warranties otherwise
qualified by Material Adverse Effect, for purposes of this Section 6.02(a),
such representations and warranties and statements shall be deemed to be true
and correct in all respects unless the failure or failures of such
representations and warranties and statements to be so true and correct,
individually or in the aggregate, would result in a Material Adverse Effect
with respect to the Company. FSI shall have received a certificate signed on
behalf of the Company by the chief executive officer and the chief financial
officer of the Company to the effect set forth in this paragraph.
(b) Performance of Obligations of the Company. The Company
shall have performed the obligations required to be performed by it under this
Agreement at or prior to the Closing Date, including but not limited to its
obligations pursuant to Section 6.06 hereof, except for such failures to
perform as have not had or would not, individually or in the aggregate, have a
Material Adverse Effect with respect to the Company or materially adversely
affect the ability of the Company to consummate the transactions contemplated
hereby.
(c) Consents, etc. FSI shall have received evidence, in form
and substance reasonably satisfactory to it, that all licenses, permits,
consents, approvals, authorizations, qualifications and orders of governmental
authorities and other third parties set forth in Section 3.03 of the Company
Disclosure Schedule shall have been obtained.
(d) No Litigation. There shall not be pending by any
Governmental Entity any suit, action or proceeding (or by any other person any
suit, action or proceeding which has a reasonable likelihood of success), (i)
challenging or seeking to restrain or prohibit the consummation of the Merger
or any of the other transactions contemplated by this Agreement or seeking to
obtain from FSI or any of their affiliates any damages that are material to
any such party (ii) seeing to prohibit or limit the ownership or operation by
the Company or any of its subsidiaries of any material portion of the business
or assets of the Company or any of its subsidiaries, to dispose of or hold
separate any material portion of the business or assets of the Company or any
of its subsidiaries, as a result of the Merger or any of the other
transactions contemplated by this Agreement or (iii) seeking to impose
limitations on the ability of FSI (or any designee of FSI), to acquire or
hold, or exercise full rights of ownership of, any Common Shares, including,
without limitation, the right to vote Common Shares on all matters properly
presented to the stockholders of the Company.
(e) Financing. The Company shall have received the proceeds of
financing pursuant to the commitment letters set forth on Section 6.02(e) of
the FSI Disclosure Schedule on terms and conditions set forth therein (or (as
modified in accordance with Section 5.03(c)) on such other terms and
conditions, or involving such other financing sources, as FSI and the Company
shall reasonably agree and are not materially more onerous) in amounts
sufficient to consummate the transactions contemplated by this Agreement,
including, without limitation (i) to pay, with respect to all Common Shares in
the Merger, the cash portion of the Merger Consideration pursuant to Section
2.01(c)(iv), (ii) to refinance the outstanding indebtedness of the Company,
(iii) to pay any fees and expenses in connection with the transactions
contemplated by this Agreement or the financing thereof and (iv) to provide
for the working capital needs of the Company following the Merger, including,
without limitation, if applicable, letters of credit.
SECTION 6.3 Conditions to Obligation of the Company. The
obligation of the Company to effect the Merger is further subject to the
following conditions:
(a) Representations and Warranties. The representations and
warranties of FSI set forth in this Agreement shall be true and correct in all
respects, in each case as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date, provided, that, for
purposes of this Section 6.03(a), with respect to representations and
warranties other than Section 3.02(a) and the representations and warranties
otherwise qualified by Material Adverse Effect, such representations and
warranties shall be deemed to be true and correct in all respects unless the
failure or failures of such representations and warranties to be so true and
correct, individually or in the aggregate, would result in a Material Adverse
Effect of FSI. The Company shall have received certificates signed on behalf
of FSI, respectively, by an authorized officer of FSI, respectively, to the
effect set forth in this paragraph.
(b) Performance of Obligations of FSI. FSI shall have performed
the obligations required to be performed by it under this Agreement at or
prior to the Closing Date (except for such failures to perform as have not had
or could not reasonably be expected, either individually or in the aggregate,
to have a Material Adverse Effect with respect to FSI or adversely affect the
ability of FSI to consummate the transactions herein contemplated or perform
its obligations hereunder).
ARTICLE VII
TERMINATION; AMENDMENTS; WAIVER
SECTION 7.1 Termination. This Agreement may be terminated and
the Merger contemplated hereby may be abandoned at any time prior to the
Effective Time, notwithstanding approval thereof by the stockholders of the
Company:
(a) by the mutual written consent of FSI and the Company, by
action of their respective Boards of Directors;
(b) by FSI or the Company if the Merger shall not have been
consummated on or before March 31, 1998; provided, however, that neither FSI
nor the Company may terminate this Agreement pursuant to this Section 7.01(b)
if such party shall have materially breached this Agreement;
(c) by FSI or the Company if any court of competent jurisdiction
in the United States or other United States Governmental Entity has issued an
order, decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the Merger and such order, decree, ruling or other
action shall have become final and nonappealable; provided, however, that the
party seeking to terminate this Agreement shall have used its reasonable best
efforts to remove or lift such order, decree, ruling or other action;
(d) by the Company if, prior to the Effective Time, any person
has made a bona fide proposal relating to an Acquisition Transaction, or has
commenced a tender or exchange offer for the Common Shares, and the Company
Board determines in good faith (i) after consultation with its financial
advisors, that such transaction constitutes a superior offer from a financial
point of view and (ii) after consultation with counsel, that failure to
approve such proposal and terminate this Agreement could reasonably be
expected to result in a breach of fiduciary duties of the Company Board;
provided, however, that, notwithstanding anything in this Agreement to the
contrary, the termination of this Agreement by the Company in compliance with
this Section 7.01(d) shall not be deemed to violate any other obligations of
the Company under this Agreement;
(e) by FSI if the Company breaches its covenant in Section 5.08
or takes an action pursuant to the second sentence of Section 5.08;
(f) by FSI, if the Company Board shall have (i) failed to
recommend to the stockholders of the Company that they give the Stockholder
Approval, (ii) withdrawn or modified in a manner adverse to FSI its approval
or recommendation of this Agreement or the Merger, (iii) shall have approved
or recommended an Acquisition Transaction, (iv) shall have resolved to effect
any of the foregoing or (v) shall have otherwise taken steps to impede the
Stockholder Approval; or
(g) by either FSI or the Company, if the Stockholder Approval
shall not have been obtained by reason of the failure to obtain the required
vote upon a vote held at a duly held meeting of stockholders or at any
adjournment thereof.
SECTION 7.2 Effect of Termination. In the event of the
termination of this Agreement pursuant to Section 7.01, this Agreement shall
forthwith become void and have no effect, without any liability on the part of
any party or its directors, officers or stockholders, other than the
provisions of the last sentence of Section 5.02 and the provisions of this
Section 7.02 and Section 7.03, which shall survive any such termination.
Nothing contained in this Section 7.02 shall relieve any party from liability
for any breach of this Agreement.
SECTION 7.3 Fees and Expenses.
(a) In addition to any other amounts which may be payable or
become payable pursuant to any other paragraph of this Section 7.03, in the
event that this Agreement is terminated for any reason other than a material
breach by FSI, the Company shall promptly reimburse the THL or FSI, as the
case may be, for all out-of-pocket expenses and fees (including, without
limitation, fees payable to all banks, investment banking firms and other
financial institutions, and their respective agents and counsel, and all fees
of counsel, accountants, financial printers, experts and consultants to THL
and its affiliates), whether incurred prior to, on or after the date hereof,
in connection with the Merger and the consummation of all transactions
contemplated by this Agreement, and the financing thereof up to $12 million.
Except as otherwise specifically provided for herein, whether or not the
Merger is consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated by this Agreement shall be paid by
the party incurring such expenses.
(b) In the event that (i) this Agreement is terminated pursuant
to Section 7.01(d) or (f), or (ii) any Person (other than THL or any of its
affiliates) shall have made, or proposed, communicated or disclosed in a manner
which is or otherwise becomes public a proposal for an Acquisition Transaction
prior to the Special Meeting, the Stockholder Approval has not been obtained
and, thereafter, this Agreement is terminated then the Company shall promptly
pay FSI a termination fee of $25 million (the "Termination Fee"), provided
that in no event shall more than one Termination Fee be payable by the Company.
(c) The prevailing party in any legal action undertaken to
enforce this Agreement or any provision hereof shall be entitled to recover
from the other party the costs and expenses (including attorneys' and expert
witness fees) incurred in connection with such action.
SECTION 7.4 Amendment. This Agreement may be amended by the
Company and FSI at any time before or after any approval of this Agreement by
the stockholders of the Company but, after any such approval, no amendment
shall be made which decreases the Merger Consideration or which adversely
affects the rights of the Company's stockholders hereunder without the
approval of such stockholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
SECTION 7.5 Extension; Waiver. At any time prior to the
Effective Time, FSI, on the one hand, and the Company, on the other hand, may
(i) extend the time for the performance of any of the obligations or other
acts of the other, (ii) waive any inaccuracies in the representations and
warranties contained herein of the other or in any document, certificate or
writing delivered pursuant hereto by the other or (iii) waive compliance by
the other with any of the agreements or conditions. Any agreement on the part
of any party to any such extension or waiver shall be valid only if set forth
in an instrument in writing signed on behalf of such party.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Non-Survival of Representations and Warranties. The
representations and warranties made in this Agreement shall not survive beyond
the Effective Time. Notwithstanding the foregoing, the agreements set forth
in Section 2.04, Section 2.05, the last sentence of Section 5.03(a), Section
5.05 and Section 5.06 shall survive the Effective Time indefinitely (except to
the extent a shorter period of time is explicitly specified therein).
SECTION 8.2 Entire Agreement; Assignment.
(a) This Agreement (including the documents and the instruments
referred to herein) and the Confidentiality Agreement constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof and
thereof.
(b) Neither this Agreement nor any of the rights, interests or
obligations hereunder will be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the
other party (except that FSI may assign its rights, interest and obligations
to any affiliate or direct or indirect subsidiary of FSI without the consent
of the Company provided that no such assignment shall relieve FSI of any
liability for any breach by such assignee). Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
SECTION 8.3 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, each of which shall remain in full force
and effect.
SECTION 8.4 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered in person, by overnight courier or telecopier to
the respective parties as follows:
If to FSI:
Thomas H. Lee Company
75 State Street, Ste. 2600
Boston, Massachusetts 02109
Attention: Scott M. Sperling
Anthony J. Di Novi
Telecopier Number: (617) 227-3514
with a copy to:
Skadden, Arps, Slate, Meager & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Eric L. Cochran, Esq.
Telecopier Number: (212) 735-2000
If to the Company:
Fisher Scientific International Inc.
Liberty Lane
Hampton, New Hampshire 03842
Attention: General Counsel
Telecopier Number: (603) 929-2703
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Barry A. Bryer, Esq.
Telecopier Number: (212) 403-2000
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above;
provided that notice of any change of address shall be effective only upon
receipt thereof.
SECTION 8.5 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of
conflicts of laws thereof.
SECTION 8.6 Descriptive Headings. The descriptive headings
herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
SECTION 8.7 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
SECTION 8.8 Parties in Interest. Except with respect to Sections
2.04, 5.05 and 5.06 (which are intended to be for the benefit of the persons
identified therein, and may be enforced by such persons), this Agreement shall
be binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to confer upon any
other person any rights or remedies of any nature whatsoever under or by
reason of this Agreement.
SECTION 8.9 Certain Definitions. As used in this Agreement:
(a) the term "affiliate", as applied to any person, shall mean
any other person directly or indirectly controlling, controlled by, or under
common control with, that person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that person, whether through
the ownership of voting securities, by contract or otherwise;
(b) the term "Person" or "person" shall include individuals,
corporations, partnerships, trusts, other entities and groups (which term
shall include a "group" as such term is defined in Section 13(d)(3) of the
Exchange Act); and
(c) the term "Subsidiary" or "subsidiaries" means, with respect
to FSI, the Company or any other person, any corporation, partnership, joint
venture or other legal entity of which FSI, the Company or such other person,
as the case may be (either alone or through or together with any other
subsidiary), owns, directly or indirectly, stock or other equity interests the
holders of which are generally entitled to more than 50% of the vote for the
election of the board of directors or other governing body of such corporation
or other legal entity.
SECTION 8.10 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of
the United States or any state having jurisdiction, this being in addition to
any other remedy to which they are entitled at law or in equity.
IN WITNESS WHEREOF, each of the parties has caused this Agreement
to be executed on its behalf by its respective officer thereunto duly
authorized, all as of the day and year first above written.
FISHER SCIENTIFIC INTERNATIONAL INC.
By:
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Name: Paul M. Meister
Title: Senior Vice President and
Chief Financial Officer
FSI MERGER CORP.
By:
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Name: Scott M. Sperling
Title: Chairman of the Board
