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As filed with the Securities and Exchange Commission on June 9, 1997
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
FISHER SCIENTIFIC INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
Delaware 02-0451017
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Liberty Lane
Hampton, New Hampshire 03842
(Address of Principal Executive Offices
including Zip Code)
1997 EQUITY BASED AWARD PLAN OF
FISHER SCIENTIFIC INTERNATIONAL INC.
AND ITS SUBSIDIARIES
(Full title of the Plan)
Todd M. DuChene, Esq.
Vice President-General Counsel and Secretary
Liberty Lane
Hampton, New Hampshire 03842
(603) 929-2650
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to Amount to be price per offering registration
be registered registered unit price fee
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Common Stock, 1,189,600 (2) $44,758,700 (2) $13,563.24
par value
$.01 per share
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(1) To be offered pursuant to the 1997 Equity Based Award Plan
of Fisher Scientific International Inc. and its Subsidiaries
(the "Plan"). Such indeterminable number of additional
shares as may be distributed by the operation of the
recapitalization provisions of the Plans is hereby also
registered.
(2) Computed pursuant to Rule 457(h) solely for the purpose of
determining the registration fee, based upon an assumed
price of $37.625 share, the average of the high and low sale
prices of the Registrant's Common Stock as reported on the
New York Stock Exchange on June 4, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated by reference in this Registration Statement are the
following documents heretofore filed by Fisher Scientific International Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"):
(a) The Company's latest annual report filed pursuant to Sections
13(a) or 15(d) of the Exchange Act;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report referred to in (a) above; and
(c) The description of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), contained in a registration statement
filed under the Exchange Act, and any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Delaware General Corporation Law (the "Delaware Law") permits a
Delaware corporation to include a provision in its Certificate of Incorporation,
and the
<PAGE>
Company's Restated Certificate of Incorporation so provides, eliminating or
limiting the personal liability of a director to the Corporation or its
Stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision may not eliminate or limit the liability of a
director (i) for any such of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware Law which makes directors personally liable
for unlawful dividends or unlawful stock repurchases or redemptions. Under
Delaware law, directors and officers may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
in connection with any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation (a "derivative action"))
if they acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interest of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. In derivative actions, indemnification extends only to
expenses (including attorneys' fees) incurred in connection with defense or
settlement of such an action and, in the event such person shall have been
adjudged to be liable to the corporation, only to the extent that a proper
court shall have determined that such person is fairly and reasonably
entitled to indemnity for such expenses.
The Company's Restated Certificate of Incorporation provides, among
other things, that each person who was or is made a party to, or is
threatened to be made a part to, or is involved in, any action, suit or
proceeding by reason of the fact that he is the legal representative, or is
or was a director or officer of the Company (or was serving at the request of
the Company as a director, officer, employee or agent for another entity)
while serving in such capacity, shall be indemnified and held harmless by the
Company to the full extent authorized by the Delaware Law, as in effect (or,
to the extent indemnification is broadened, as it may be amended), against
all expenses, liability or loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amount to be paid in settlement)
reasonably incurred by such person in connection therewith. The Company's
Restated Certificate of Incorporation also provides that the right of
indemnification conferred to the director, officer or legal representative by
the Company's Restated Certificate of Incorporation shall include the right
to be paid by the Company for expenses in defending the proceedings specified
2
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above, in advance of their final disposition. The Company may also, by
action of its Board of Directors, provide indemnification to its employees
and agents with the same scope and effect as the foregoing indemnification of
directors and officers.
The Company maintains directors' and officers' reimbursement and
liability insurance pursuant to standard form policies. The risks covered by
such policies include certain liabilities under the securities law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
An Exhibit Index, containing a list of all exhibits filed with this
Registration Statement, is included on page 8.
Item 9. Undertakings
(a) Rule 415 Offering. The undersigned Registrant hereby undertakes:
------------------
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration Statement to:
(i) include any Prospectus required by Section 10(a)(3) of the
Securities Act, unless the information is contained in periodic
reports filed by the Registrant pursuant to section 13 or section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement;
(ii) reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement, unless the information is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement;
(iii) include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any
3
<PAGE>
material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Subsequent Exchange Act Documents. The undersigned Registrant
hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d) of
the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Indemnification. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
4
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Hampton, State of New Hampshire on the 4th day
of June, 1997.
FISHER SCIENTIFIC INTERNATIONAL INC.
By: /s/ Todd M. DuChene
--------------------------------
Todd M. DuChene
Vice President-General
Counsel and Secretary
Each person whose signature appears below does hereby make,
constitute and appoint Paul M. Meister and Todd M. DuChene and each of them,
with full power to act without the other, his true and lawful
attorney-in-fact and agent, in his name, place and stead to execute on his
behalf, as a director of Fisher Scientific International Inc. (the
"Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of shares of the Company's
common stock, par value $.01 ("Common Stock"), in connection with the 1997
Equity Based Award Plan of Fisher Scientific International Inc. and its
Subsidiaries and any and all amendments (including post-effective amendments)
to the Registration Statement, and file the same with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933 (the "Act"),
and any and all other instruments which either of said attorneys-in-fact and
agents deems necessary or advisable to enable the Company to comply with the
Act, the rules, regulations and requirements of the SEC in respect thereof,
and the securities or Blue Sky laws of any State or other governmental
subdivision, giving and granting to each of said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
whatsoever necessary or appropriate to be done in and about the premises as
fully to all intents as he might or could do if personally present at the
doing thereof, with full power of substitution and resubstitution, hereby
ratifying and confirming all that his said attorneys-in-fact and agents or
substitutes may or shall lawfully do or cause to be done by virtue hereof.
5
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
- ---------- ----- ----
/s/ Michael D. Dingman
- ------------------------------ Chairman of the June 4, 1997
Michael D. Dingman Board and Director
/S/ Paul M. Montrone
- ------------------------------ President, Chief June 4, 1997
Paul M. Montrone Executive Officer
and Director
(Principal Executive
Officer)
/s/ Paul M. Meister Senior Vice June 4, 1997
- ------------------------------ President-- Chief
Paul M. Meister Financial Officer
(Principal Financial
and Accounting
Officer)
/s/ Robert A. Day Director June 4, 1997
- ------------------------------
Robert A. Day
/s/ Philip E. Beekman Director June 4, 1997
- ------------------------------
Philip E. Beekman
/s/ Gerald J. Lewis Director June 4, 1997
- ------------------------------
Gerald J. Lewis
/s/ Edward A.Montgomery, Jr. Director June 4, 1997
- ------------------------------
Edward A. Montgomery, Jr.
/s/Lt. Gen. Thomas P. Stafford Director June 4, 1997
- ------------------------------
Lt. Gen. Thomas P. Stafford
6
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Specimen Certificate of Common Stock, $.01 par value per share,
of the Company (incorporated by reference to the relevant
exhibit to the Company's Registration Statement on Form S-1
(Registration No. 33-43505)).
4.2 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Annual Report on
Form 10-K filed with the Securities and Exchange Commission on
March 24, 1993).
4.3 Bylaws of the Company (incorporated by refer-ence to the
Company's Annual Report on Form 10-K filed with the Securities
and Exchange Commission on March 24, 1993).
4.4 Senior Debt Securities Indenture dated as of December 18, 1995
between the Company and Mellon Bank, N.A., as Trustee
(incorporated by reference to the relevant exhibit to the
Company's Registration Statement on Form S-3 (Registration
No. 33-99884)).
4.5 Fisher Scientific International Inc. 1997 Equity Based Award
Plan (filed herewith).
5 Opinion of Debevoise & Plimpton (filed herewith).
23.1 Consent of Deloitte & Touche LLP (filed herewith).
23.2 Consent of Debevoise & Plimpton (included in Exhibit 5).
24 Powers of Attorney (filed herewith--see pages 5-6 of the
Registration Statement).
7
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Exhibit 4.5
FISHER SCIENTIFIC INTERNATIONAL INC. AND ITS SUBSIDIARIES
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1997 Equity Based Award Plan
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FISHER SCIENTIFIC INTERNATIONAL INC. AND ITS SUBSIDIARIES
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1997 Equity Based Award Plan
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Page
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1. Purpose 1
2. Definitions 1
3. Administration 3
(a) Authority of the Committee 3
(b) Manner of Exercise of Committee Authority 4
(c) Limitation of Liability 4
4. Stock Subject to Plan 5
(a) Overall Number of Shares Available for Delivery 5
(b) Application of Limitation to Grants of Awards 5
(c) Availability of Shares Not Delivered under Awards 5
5. Eligibility; Per-Person Award Limitations 5
6. Specific Terms of Awards 6
(a) General 6
(b) Options 6
(c) Stock Appreciation Rights 7
(d) Restricted Stock 7
(e) Deferred Stock 8
(f) Bonus Stock and Awards in Lieu of Obligations 9
(g) Dividend Equivalents 9
(h) Other Stock-Based Awards 10
7. Certain Provisions Applicable to Awards 10
(a) Stand-Alone, Additional, Tandem, and
Substitute Awards 10
(b) Term of Awards 10
(c) Form and Timing of Payment under Awards;
Deferrals 10
(d) Exemptions from Section 16(b) Liability 11
8. Performance Awards 11
(a) Performance Conditions 11
(b) Performance Awards Granted to Designated Covered
Employees 11
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FISHER SCIENTIFIC INTERNATIONAL INC. AND ITS SUBSIDIARIES
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1997 Equity Based Award Plan
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Page
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(c) Written Determinations 13
(d) Status of Section 8(b) Awards under Code
Section 162(m) 13
9. Change of Control 13
(a) Effect of "Change of Control" 13
(b) Definition of "Change of Control"" 14
(c) Definition of "Change of Control Price" 15
10. General Provisions 15
(a) Compliance with Legal and Other Requirements 15
(b) Limits on Transferability; Beneficiaries 15
(c) Adjustments 16
(d) Taxes 16
(e) Changes to the Plan and Awards 17
(f) Limitation on Rights Conferred under Plan 17
(g) Unfunded Status of Awards; Creation of Trusts 17
(h) Nonexclusivity of the Plan 18
(i) Payments in the Event of Forfeitures; Fractional
Shares 18
(j) Governing Law 18
(k) Awards under Preexisting Plan 18
(l) Plan Effective Date and Shareholder Approval 18
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FISHER SCIENTIFIC INTERNATIONAL INC. AND ITS SUBSIDIARIES
1997 Equity-Based Award Plan
1. Purpose. The purpose of this 1997 Equity-Based Award Plan (the
"Plan") is to assist Fisher Scientific International Inc., a Delaware
corporation (the "Corporation"), and its subsidiaries in attracting, retaining,
and rewarding high-quality executives, employees, and other persons who provide
services to the Corporation and/or its subsidiaries, enabling such persons to
acquire or increase a proprietary interest in the Corporation in order to
strengthen the mutuality of interests between such persons and the Corporation's
shareholders, and providing such persons with performance incentives to expend
their maximum efforts in the creation of shareholder value. The Plan is also
intended to qualify certain compensation awarded under the Plan for tax
deductibility under Code Section 162(m) (as hereafter defined) to the extent
deemed appropriate by the Committee (or any successor committee) of the Board of
Directors of the Corporation.
2. Definitions. For purposes of the Plan, the following terms shall be
defined as set forth below, in addition to such terms defined in Section 1
hereof:
(a) "Award" means any Option, SAR (including Limited SAR), Restricted
Stock, Deferred Stock, Stock granted as a bonus or in lieu of another
award, Dividend Equivalent, Other Stock-Based Award or Performance Award,
together with any other right or interest granted to a Participant under
the Plan.
(b) "Beneficiary" means the person, persons, trust or trusts which
have been designated by a Participant in his or her most recent written
beneficiary designation filed with the Committee to receive the benefits
specified under the Plan upon such Participant's death or to which Awards
or other rights are transferred if and to the extent permitted under
Section 10(b) hereof. If, upon a Participant's death, there is no
designated Beneficiary or surviving designated Beneficiary, then the term
Beneficiary means person, persons, trust or trusts entitled by will or the
laws of descent and distribution to receive such benefits.
(c) "Board" means the Corporation's Board of Directors.
(d) "Change of Control" means Change of Control as defined with
related terms in Section 9 of the Plan.
(e) "Change of Control Price" means the amount calculated in
accordance with Section 9(c) of the Plan.
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, including regulations thereunder and successor provisions and
regulations thereto.
(g) "Committee" means a committee of two or more directors designated
by the Board to administer the Plan; provided, however, that Committee
action shall be taken by act of such
<PAGE>
members specified in, and otherwise in accordance with, Section 3(b). In
appointing members of the Committee, the Board will consider whether a
member is or will be a Qualified Member, but such members are not required
to be Qualified Members at the time of appointment or during their term of
service on the Committee.
(h) "Covered Employee" means an Eligible Person who is a Covered
Employee as specified in Section 8(d) of the Plan.
(i) "Deferred Stock" means a right, granted to a Participant under
Section 6(e) hereof, to receive Stock, cash or a combination thereof at the
end of a specified deferral period.
(j) "Dividend Equivalent" means a right, granted to a Participant
under Section 6(g), to receive cash, Stock, other Awards or other property
equal in value to dividends paid with respect to a specified number of
shares of Stock, or other periodic payments.
(k) "Effective Date" means March 15, 1997.
(l) "Eligible Person" means each Executive Officer and other officers
and employees of the Corporation, its present and future subsidiaries or
parents, and non-employees who provide services to the Corporation, its
present and future subsidiaries or parents (all such persons being
hereinafter referred to as either "Eligible Persons" or "employees").
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, including rules thereunder and successor
provisions and rules thereto.
(n) "Executive Officer" means an executive officer of the Corporation
as defined under the Exchange Act.
(o) "Fair Market Value" means the fair market value of Stock, Awards
or other property as determined by the Committee or under procedures
established by the Committee. Unless otherwise determined by the
Committee, the Fair Market Value of Stock shall be (i) in the case of a
non-qualified option, the average of the daily closing prices for Stock as
reported on the New York Stock Exchange ("NYSE") during the period
determined by the Committee in its sole discretion that shall consist of
any number of consecutive days on which there is trading of the Stock on
the NYSE (each day on which there is such trading being a "Trading Day"),
not exceeding 30, during the period of 30 Trading Days ending on the
Trading Day immediately preceding the date the option is granted, provided
that, in the absence of a different determination by the Committee, the
price per share shall be determined on the basis of a period consisting of
30 Trading Days; or (ii) in the case of an Incentive Stock Option, the mean
between the highest and lowest sales prices of the Stock as reported on the
NYSE (the "Mean Value") for the date on which the option is granted, or if
there are no sales on such date, on the next preceding day on which there
were sales.
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(p) "Incentive Stock Option" or "ISO" means any Option intended to be
and designated as an incentive stock option within the meaning of Code
Section 422 or any successor provision thereto.
(q) "Limited SAR" means a right granted to a Participant under
Section 6(c) hereof.
(r) "Option" means a right, granted to a Participant under Section
6(b) hereof, to purchase Stock or other Awards at a specified price during
specified time periods.
(s) "Other Stock Based Awards" means Awards granted to a Participant
under Section 6(h) hereof.
(t) "Participant" means a person who has been granted an Award under
the Plan which remains outstanding, including a person who is no longer an
Eligible Person.
(u) "Performance Award" means a right, granted to a Participant under
Section 8 hereof, to receive Awards based upon performance criteria
specified by the Committee.
(v) "Preexisting Plan" means the 1991 Stock Plan for Executive
Employees of Fisher Scientific International Inc. and its Subsidiaries.
(w) "Qualified Member" means a member of the Committee who is a
"Non-Employee Director" within the meaning of Rule 16b-3(b)(3) and an
"outside director" within the meaning of Regulation 1.162-27 under Code
Section 162(m).
(x) "Restricted Stock" means Stock granted to a Participant under
Section 6(d) hereof, that is subject to certain restrictions and to a risk
of forfeiture.
(y) "Rule 16b-3" means Rule 16b-3, as from time to time in effect and
applicable to the Plan and Participants, promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act.
(z) "Stock" means the Corporation's Common Stock, and such other
securities as may be substituted (or resubstituted) for Stock pursuant to
Section 10(c) hereof.
(aa) "Stock Appreciation Rights" or "SAR" means a right granted to a
Participant under Section 6(c) hereof.
3. Administration.
(a) Authority of the Committee. The Plan shall be administered by
the Committee except to the extent the Board elects to administer the Plan,
in which case references herein to the "Committee" shall be deemed to
include references to the "Board". The Committee shall have full and final
authority, in each case subject to and consistent with the provisions of
the Plan, to select Eligible Persons to become Participants, grant Awards,
determine the type,
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number and other terms and conditions of, and all other matters relating
to, Awards, prescribe Award agreements (which need not be identical for
each Participant) and rules and regulations for the administration of the
Plan, construe and interpret the Plan and Award agreements and correct
defects, supply omissions or reconcile inconsistencies therein, and to
make all other decisions and determinations as the Committee may deem
necessary or advisable for the administration of the Plan.
(b) Manner of Exercise of Committee Authority. At any time that a
member of the Committee is not a Qualified Member, any action of the
Committee relating to an Award granted or to be granted to a Participant
who is then subject to Section 16 of the Exchange Act in respect of the
Corporation, or relating to an Award intended by the Committee to qualify
as "performance-based compensation" within the meaning of Code Section
162(m) and regulations thereunder, may be taken either (i) by a
subcommittee, designated by the Committee, composed solely of two or more
Qualified Members, or (ii) by the Committee but with each such member who
is not a Qualified Member abstaining or recusing himself or herself from
such action; provided, however, that, upon such abstention or recusal, the
Committee remains composed solely of two or more Qualified Members. Such
action, authorized by a subcommittee or by the Committee upon the
abstention or recusal of such non-Qualified Member(s), shall be the action
of the Committee for purposes of the Plan. Any action of the Committee
shall be final, conclusive and binding on all persons, including the
Corporation, its subsidiaries, Participants, Beneficiaries, transferees
under Section 10(b) hereof or other persons claiming rights from or through
a Participant, and stockholders. The express grant of any specific power
to the Committee, and the taking of any action by the Committee, shall not
be construed as limiting any power or authority of the Committee. The
Committee may delegate to officers or managers of the Corporation or any
subsidiary, or committees thereof, the authority, subject to such terms as
the Committee shall determine, to perform such functions, including
administrative functions, as the Committee may determine, to the extent
that such delegation will not result in the loss of an exemption under Rule
16b-3(d)(1) for Awards granted to Participants subject to Section 16 of the
Exchange Act in respect of the Corporation and will not cause Awards
intended to qualify as "performance-based compensation" under Code Section
162(m) to fail to so qualify. The Committee may appoint agents to assist
it in administering the Plan.
(c) Limitation of Liability. The Committee and each member thereof
shall be entitled, in good faith, to rely or act upon any report or other
information furnished to him or her by any Executive Officer, other officer
or employee of the Corporation or a subsidiary, the Corporation's
independent auditors, consultants or any other agents assisting in the
administration of the Plan. Members of the Committee, any Executive
Officer and any other officer or employee of the Corporation or a
subsidiary acting at the direction or on behalf of the Committee shall not
be personally liable for any action or determination taken or made in good
faith with respect to the Plan, and shall, to the extent permitted by law,
be fully indemnified and protected by the Corporation with respect to any
such action or determination.
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4. Stock Subject to Plan.
(a) Overall Number of Shares Available for Delivery. Subject to
adjustment as provided in Section 10(c) hereof, the total number of shares
of Stock reserved and available for delivery in connection with Awards
under the Plan shall be (i) 1,189,600, plus (ii) the number of shares of
Stock remaining available under a Preexisting Plan immediately prior to
the date on which shareholders of the Corporation approve the adoption of
the Plan, plus (iii) the number of shares of Stock subject to awards under
a Preexisting Plan which become available in accordance with Section 4(c)
hereof after the date on which stockholders of the Corporation approve the
adoption of the Plan, plus (iv) the number of shares of Stock repurchased
by the Corporation with the proceeds of any Award under the Plan or awards
under a Preexisting Plan from and after the date the Plan is approved by
the stockholders of the Corporation; provided, however, that the total
number of shares of Stock with respect to which ISOs may be granted shall
not exceed 500,000. Any shares of Stock delivered under the Plan shall
consist of authorized and unissued shares or treasury shares.
(b) Application of Limitation to Grants of Awards. No Award may be
granted if the number of shares of Stock to be delivered in connection with
such Award or, in the case of an Award relating to shares of Stock but
settleable only in cash (such as cash-only SARs), the number of shares of
Stock to which such Award relates, exceeds the number of shares of Stock
remaining available under the Plan minus the number of shares of Stock
issuable in settlement of or relating to then-outstanding Awards. The
Committee may adopt reasonable counting procedures to ensure appropriate
counting, avoid double counting (as, for example, in the case of tandem or
substitute awards) and make adjustments if the number of shares of Stock
actually delivered differs from the number of shares of Stock previously
counted in connection with an Award.
(c) Availability of Shares Not Delivered under Awards. Shares of
Stock subject to an Award under the Plan or award under a Preexisting Plan
that are canceled, expired, forfeited, settled in cash or otherwise
terminated without a delivery of stock to the Participant, including
(i) the number of shares of Stock withheld in payment of any exercise or
purchase price of an Award or award or taxes relating to Awards or awards,
and (ii) the number of shares of stock surrendered in payment of any
exercise or purchase price of an Award or award or taxes relating to any
Award or award, will again be available for Awards under the Plan.
5. Eligibility; Per-Person Award Limitations. Awards may be granted
under the Plan only to Eligible Persons. In each fiscal year during any part of
which the Plan is in effect, an Eligible Person may not be granted Awards
relating to more than 300,000 shares of Stock in the aggregate, subject to
adjustment as provided in Section 10(c), under Sections 6(b), 6(c), 6(d), 6(e),
6(f), 6(g), 6(h) and 8(b). The maximum cash amount that may be earned under the
Plan as a final cash Performance Award or other cash Award in respect of a
performance period by any one Participant on an annualized basis shall be $2.5
million.
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6. Specific Terms of Awards.
(a) General. Awards may be granted on the terms and conditions set
forth in this Section 6. In addition, the Committee may impose on any
Award or the exercise thereof, at the date of grant or thereafter (subject
to Section 10(e)), such additional terms and conditions, not inconsistent
with the provisions of the Plan, as the Committee shall determine,
including terms requiring forfeiture of Awards in the event of termination
of employment by the Participant and terms permitting a Participant to make
elections relating to his or her Award. The Committee shall retain full
power and discretion to accelerate, waive or modify, at any time, any term
or condition of an Award that is not mandatory under the Plan. Except in
cases in which the Committee is authorized to require other forms of
consideration under the Plan, or to the extent other forms of consideration
must by paid to satisfy the requirements of the Delaware General
Corporation Law, no consideration other than services may be required for
the grant (but not the exercise) of any Award.
(b) Options. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per share of Stock
purchasable under an Option shall be determined by the Committee,
provided that such exercise price shall be not less than the Fair
Market Value of a share of Stock on the date of grant of such Option.
(ii) Time and Method of Exercise. The Committee shall determine
the time or times at which or the circumstances under which an Option
may be exercised in whole or in part (including based on achievement
of performance goals and/or future service requirements), the methods
by which such exercise price may be paid or deemed to be paid, the
form of such payment, including, without limitation, cash, Stock,
other Awards or awards granted under other plans of the Corporation or
any subsidiary, or other property (including notes or other
contractual obligations of Participants to make payment on a deferred
basis), and the methods by or forms in which Stock will be delivered
or deemed to be delivered to Participants. Notwithstanding anything
herein contained to the contrary, in no event shall the Committee
amend any Option to reduce the exercise price thereof, or grant any
new Option in lieu of or conditioned upon the surrender of any
previously granted Option (or option granted under a Preexisting Plan)
which has the same vesting period as, and a higher exercise price
than, the newly granted Option.
(iii) ISOs. The terms of any ISO granted under the Plan
shall comply in all respects with the provisions of Code Section 422.
Anything in the Plan to the contrary notwithstanding, no term of the
Plan relating to ISOs (including any SAR in tandem therewith) shall be
interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be exercised, so as to disqualify either the
Plan or any ISO under Code Section 422, unless the Participant has
first requested the change that will result in such disqualification.
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(iv) Committee Elections. The Committee, in its sole discretion,
may elect, in lieu of delivering all or a portion of the shares of
Stock as to which an Option has been exercised, if the fair market
value of the Stock exceeds the exercise price of the Option, (i) to
pay the optionee in cash or in shares of Stock, or a combination of
cash and Stock, an amount equal to the excess of (A) the Mean Value on
the exercise date of the shares of Stock as to which such Option has
been exercised, or if there were no sales on such date, on the next
preceding day on which there were sales over (B) the exercise price,
or (ii) in the case of an Option which is a non-qualified option, to
defer payment and to credit the amount of such excess on the
Corporation's books for the account of the optionee and either (A) to
treat the amount in such account as if it had been invested in the
manner from time to time determined or permitted by the Committee,
with dividends or other income therein being deemed to have been so
reinvested or (B) for the Corporation's convenience, to contribute the
amount credited to such account to a trust, which may be revocable by
the Corporation, for investment in the manner from time to time
determined or permitted by the Committee and set forth in the
instrument creating such trust. The Committee's election pursuant to
this subparagraph shall be made by giving written notice of such
election to the employee (or other person exercising the Option).
Shares of Stock paid pursuant to this subparagraph will be valued at
the Mean Value on the exercise date, or if there were no sales on such
date, on the next preceding day on which there were sales.
(c) Stock Appreciation Rights. The Committee is authorized to grant
SAR's to Participants on the following terms and conditions:
(i) Right to Payment. A SAR shall confer on the Participant to
whom it is granted a right to receive, upon exercise thereof, the
excess of (A) the Fair Market Value of one share of Stock on the date
of exercise (or, in the case of a "Limited SAR," the Fair Market Value
determined by reference to the Change of Control Price, as defined
under Section 9(c) hereof) over (B) the grant price of the SAR as
determined by the Committee.
(ii) Other Terms. The Committee shall determine at the date of
grant or thereafter, the time or times at which and the circumstances
under which a SAR may be exercised in whole or in part (including
based on achievement of performance goals and/or future service
requirements), the method of exercise, method of settlement, form of
consideration payable in settlement, method by or forms in which Stock
will be delivered or deemed to be delivered to Participants, whether
or not a SAR shall be in tandem or in combination with any other
Award, and any other terms and conditions of any SAR. Limited SARs
that may only be exercised in connection with a Change of Control or
other event as specified by the Committee may be granted on such
terms, not inconsistent with this Section 6(c), as the Committee may
determine. SARs and Limited SARs may be either freestanding or in
tandem with other Awards.
(d) Restricted Stock. The Committee is authorized to grant
Restricted Stock to Participants on the following terms and conditions:
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(i) Grant and Restrictions. Restricted Stock shall be subject
to such restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee may impose, which restrictions
may lapse separately or in combination at such times, under such
circumstances (including based on achievement of performance goals
and/or future service requirements), in such installments or
otherwise, as the Committee may determine at the date of grant or
thereafter. Except to the extent restricted under the terms of the
Plan and any Award agreement relating to the Restricted Stock, a
Participant granted Restricted Stock shall have all of the rights of a
shareholder, including the right to vote the Restricted Stock and the
right to receive dividends thereon (subject to any mandatory
reinvestment or other requirement imposed by the Committee). During
the restricted period applicable to the Restricted Stock, subject to
Section 10(b) below, the Restricted Stock may not be sold,
transferred, pledged, hypothecated, margined or otherwise encumbered
by the Participant.
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment during the applicable
restriction period, Restricted Stock that is at that time subject to
restrictions shall be forfeited and reacquired by the Corporation;
provided that the Committee may provide, by rule or regulation or in
any Award agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted Stock
shall be waived in whole or in part in the event of terminations
resulting from specified causes, and the Committee may in other cases
waive in whole or in part the forfeiture of Restricted Stock.
(iii) Certificates for Stock. Restricted Stock granted under
the Plan may be evidenced in such manner as the Committee shall
determine. If certificates representing Restricted Stock are
registered in the name of the Participant, the Committee may require
that such certificates bear an appropriate legend referring to the
terms, conditions and restrictions applicable to such Restricted
Stock, that the Corporation retain physical possession of the
certificates, and that the Participant deliver a stock power to the
Corporation, endorsed in blank, relating to the Restricted Stock.
(iv) Dividends and Splits. As a condition to the grant of an
Award of Restricted Stock, the Committee may require that any cash
dividends paid on a share of Restricted Stock be automatically
reinvested in additional shares of Restricted Stock or applied to the
purchase of additional Awards under the Plan. Unless otherwise
determined by the Committee, Stock distributed in connection with a
Stock split or Stock dividend, and other property distributed as a
dividend, shall be subject to restrictions and a risk of forfeiture to
the same extent as the Restricted Stock with respect to which such
Stock or other property has been distributed.
(e) Deferred Stock. The Committee is authorized to grant Deferred
Stock to Participants, which are rights to receive Stock, cash, or a
combination thereof at the end of a specified deferral period, subject to
the following terms and conditions:
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(i) Award and Restrictions. Satisfaction of an Award of
Deferred Stock shall occur upon expiration of the deferral period
specified for such Deferred Stock by the Committee (or, if permitted
by the Committee, as elected by the Participant). In addition,
Deferred Stock shall be subject to such restrictions (which may
include a risk of forfeiture) as the Committee may impose, if any,
which restrictions may lapse at the expiration of the deferral period
or at earlier specified times (including based on achievement of
performance goals and/or future service requirements), separately or
in combination, in installments or otherwise, as the Committee may
determine. Deferred Stock may be satisfied by delivery of Stock, cash
equal to the Fair Market Value of the specified number of shares of
Stock covered by the Deferred Stock, or a combination thereof, as
determined by the Committee at the date of grant or thereafter.
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment during the applicable
deferral period or portion thereof to which forfeiture conditions
apply (as provided in the Award agreement evidencing the Deferred
Stock), all Deferred Stock that is at that time subject to deferral
(other than a deferral at the election of the Participant) shall be
forfeited; provided that the Committee may provide, by rule or
regulation or in any Award agreement, or may determine in any
individual case, that restrictions or forfeiture conditions relating
to Deferred Stock shall be waived in whole or in part in the event of
terminations resulting from specified causes, and the Committee may in
other cases waive in whole or in part the forfeiture of Deferred
Stock.
(iii) Dividend Equivalents. Unless otherwise determined by
the Committee at date of grant, Dividend Equivalents on the specified
number of shares of Stock covered by an Award of Deferred Stock shall
be either (A) paid with respect to such Deferred Stock at the dividend
payment date in cash or in shares of unrestricted Stock having a Fair
Market Value equal to the amount of such dividends, or (B) deferred
with respect to such Deferred Stock and the amount or value thereof
automatically deemed reinvested in additional Deferred Stock, other
Awards or other investment vehicles, as the Committee shall determine
or permit the Participant to elect.
(f) Bonus Stock and Awards in Lieu of Obligations. The Committee is
authorized to grant Stock as a bonus, or to grant Stock or other Awards in
lieu of obligations to pay cash or deliver other property under the Plan or
under other plans or compensatory arrangements, provided that, in the case
of Participants subject to Section 16 of the Exchange Act, the amount of
such grants remains within the discretion of the Committee to the extent
necessary to ensure that acquisitions of Stock or other Awards are exempt
from liability under Section 16(b) of the Exchange Act. Stock or Awards
granted hereunder shall be subject to such other terms as shall be
determined by the Committee.
(g) Dividend Equivalents. The Committee is authorized to grant
Dividend Equivalents to a Participant, entitling the Participant to receive
cash, Stock, other Awards, or other property equal in value to dividends
paid with respect to a specified number of shares of Stock, or other
periodic payments. Dividend Equivalents may be awarded on a free-standing
basis or in
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connection with another Award. The Committee may provide that Dividend
Equivalents shall be paid or distributed when accrued or shall be deemed
to have been reinvested in additional Stock, Awards, or other investment
vehicles, and subject to such restrictions on transferability and risks
of forfeiture, as the Committee may specify.
(h) Other Stock-Based Awards. The Committee is authorized, subject
to limitations under applicable law, to grant to Participants such other
Awards that may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, Stock, as deemed by the
Committee to be consistent with the purposes of the Plan, including,
without limitation, convertible or exchangeable debt securities, other
rights convertible or exchangeable into Stock, purchase rights for Stock,
Awards with value and payment contingent upon performance of the
Corporation or any other factors designated by the Committee, and Awards
valued by reference to the book value of Stock or the value of securities
of or the performance of specified subsidiaries. The Committee shall
determine the terms and conditions of such Awards. Stock delivered
pursuant to an Award in the nature of a purchase right granted under this
Section 6(h) shall be purchased for such consideration, paid for at such
times, by such methods, and in such forms, including, without limitation,
cash, Stock, other Awards, or other property, as the Committee shall
determine. Cash awards, as an element of or supplement to any other Award
under the Plan, may also be granted pursuant to this Section 6(h).
7. Certain Provisions Applicable to Awards.
(a) Stand-Alone, Additional and Tandem Awards. Awards granted under
the Plan may, in the discretion of the Committee, be granted either alone
or in addition to or in tandem with any other Award or any award granted
under another plan of the Corporation, any subsidiary, or any business
entity to be acquired by the Corporation or a subsidiary, or any other
right of a Participant to receive payment from the Corporation or any
subsidiary. Such additional or tandem Awards may be granted at any time.
In addition, Awards may be granted in lieu of cash compensation, including
in lieu of cash amounts payable under other plans of the Corporation or any
subsidiary, in which the value of Stock subject to the Award is equivalent
in value to the cash compensation (for example, Deferred Stock or
Restricted Stock), or in which the exercise price, grant price or purchase
price of the Award in the nature of a right that may be exercised is equal
to the Fair Market Value of the underlying Stock minus the value of the
cash compensation surrendered (for example, Options granted with an
exercise price "discounted" by the amount of the cash compensation
surrendered).
(b) Term of Awards. The term of each Award shall be for such period
as may be determined by the Committee; provided that in no event shall the
term of any Option or SAR exceed a period of ten years (or such shorter
term as may be required in respect of an ISO under Code Section 422).
(c) Form and Timing of Payment under Awards; Deferrals. Subject to
the terms of the Plan and any applicable Award agreement, payments to be
made by the Corporation or a subsidiary upon the exercise of an Option or
other Award or settlement of an Award may be
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made in such forms as the Committee shall determine, including, without
limitation, cash, Stock, other Awards or other property, and may be made
in a single payment or transfer, in installments, or on a deferred basis.
The settlement of any Award may be accelerated, and cash paid in lieu of
Stock in connection with such settlement, in the discretion of the
Committee or upon occurrence of one or more specified events (in addition
to a Change of Control). Installment or deferred payments may be required
by the Committee (subject to Section 10(e) of the Plan, including the
consent provisions thereof in the case of any deferral of an outstanding
Award not provided for in the original Award agreement) or permitted at
the election of the Participant on terms and conditions established by the
Committee. Payments may include, without limitation, provisions for the
payment or crediting of reasonable interest on installment or deferred
payments or the grant or crediting of Dividend Equivalents or other
amounts in respect of installment or deferred payments denominated in
Stock.
(d) Exemptions from Section 16(b) Liability. It is the intent of the
Corporation that the grant of any Awards to or other transaction by a
Participant who is subject to Section 16 of the Exchange Act shall be
exempt under Rule 16b-3 (except for transactions acknowledged in writing to
be non-exempt by such Participant). Accordingly, if any provision of this
Plan or any Award agreement does not comply with the requirements of
Rule 16b-3 as then applicable to any such transaction, such provision shall
be construed or deemed amended to the extent necessary to conform to the
applicable requirements of Rule 16b-3 so that such Participant shall avoid
liability under Section 16(b).
8. Performance Awards.
(a) Performance Conditions. The right of a Participant to exercise
or receive a grant or settlement of any Award, and the timing thereof, may
be subject to such performance conditions as may be specified by the
Committee. The Committee may use such business criteria and other measures
of performance as it may deem appropriate in establishing any performance
conditions, and may exercise its discretion to reduce or increase the
amounts payable under any Award subject to performance conditions, except
as limited under Section 8(b) hereof in the case of a Performance Award
intended to qualify under Code Section 162(m).
(b) Performance Awards Granted to Designated Covered Employees. If
the Committee determines that a Performance Award to be granted to an
Eligible Person who is designated by the Committee as likely to be a
Covered Employee should qualify as "performance-based compensation" for
purposes of Code Section 162(m), the grant, exercise and/or settlement of
such Performance Award shall be contingent upon achievement of
preestablished performance goals and other terms set forth in this Section
8(b).
(i) Performance Goals Generally. The performance goals for such
Performance Awards shall consist of one or more business criteria and
a targeted level or levels of performance with respect to each of such
criteria, as specified by the Committee consistent with this Section
8(b). Performance goals shall be objective and shall otherwise meet
the requirements of Code Section 162(m) and regulations thereunder
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(including Regulation 1.162-27 and successor regulations thereto),
including the requirement that the level or levels of performance
targeted by the Committee result in the achievement of performance
goals being "substantially uncertain." The Committee may determine
that such Performance Awards shall be granted, exercised and/or
settled upon achievement of any one performance goal or that two or
more of the performance goals must be achieved as a condition to
grant, exercise and/or settlement of such Performance Awards.
Performance goals may differ for Performance Awards granted to any one
Participant or to different Participants.
(ii) Business Criteria. One or more of the following business
criteria for the Corporation, on a consolidated basis, and/or for
specified subsidiaries or business units of the Corporation (except
with respect to the total shareholder return and earnings per share
criteria), shall be used by the Committee in establishing performance
goals for such Performance Awards: (1) earnings per share; (2)
revenues; (3) cash flows, operating cash flow, cash flow return on
investment; (4) working capital to sales ratio; (5) return on net
assets, return on assets, return on investment, return on capital,
return on equity; (6) operating margins; (7) net income; pretax
earnings; pretax earnings before interest, depreciation and
amortization; pretax operating earnings after interest expense and
before incentives, service fees, and extraordinary or special items;
operating earnings; (8) total shareholder return; and (9) any of the
above goals as compared to the performance of a published or special
index deemed applicable by the Committee including, but not limited
to, the Standard & Poor's 500 Stock Index or a group of comparator
companies.
(iii) Performance Period; Timing for Establishing Performance
Goals. Achievement of performance goals in respect of such
Performance Awards shall be measured over a performance period of up
to ten years, as specified by the Committee. Performance goals shall
be established not later than 90 days after the beginning of any
performance period applicable to such Performance Awards, or at such
other date as may be required or permitted for "performance-based
compensation" under Code Section 162(m).
(iv) Performance Award Pool. The Committee may establish a
Performance Award pool, which shall be an unfunded pool, for purposes
of measuring performance of the Corporation in connection with
Performance Awards. The amount of such Performance Award pool shall
be based upon the achievement of a performance goal or goals based on
one or more of the business criteria set forth in Section
8(b)(ii) hereof during the given performance period, as specified by
the Committee in accordance with Section 8(b)(iii) hereof. The
Committee may specify the amount of the Performance Award pool as a
percentage of any of such business criteria, a percentage thereof in
excess of a threshold amount, or as another amount which need not bear
a strictly mathematical relationship to such business criteria.
(v) Settlement of Performance Awards; Other Terms. Settlement
of such Performance Awards shall be in cash, Stock, other Awards or
other property, in the
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discretion of the Committee. The Committee may, in its discretion,
reduce the amount of a settlement otherwise to be made in connection
with such Performance Awards, but may not exercise discretion to
increase any such amount payable to a Covered Employee in respect of
a Performance Award subject to this Section 8(b). The Committee
shall specify the circumstances in which such Performance Awards
shall be paid or forfeited in the event of termination of employment
by the Participant prior to the end of a performance period or
settlement of Performance Awards.
(c) Written Determinations. All determinations by the Committee as
to the establishment of performance goals, the amount of any Performance
Award pool or potential individual Performance Awards and as to the
achievement of performance goals relating to Performance Awards under
Section 8(b) shall be made in writing in the case of any Award intended to
qualify under Code Section 162(m). The Committee may not delegate any
responsibility relating to such Performance Awards.
(d) Status of Section 8(b) Awards under Code Section 162(m). It is
the intent of the Corporation that Performance Awards under Section 8(b)
hereof granted to persons who are designated by the Committee as likely to
be Covered Employees within the meaning of Code Section 162(m) and
regulations thereunder (including Regulation 1.162-27 and successor
regulations thereto) shall, if so designated by the Committee, constitute
"performance-based compensation" within the meaning of Code Section 162(m)
and regulations thereunder. Accordingly, the terms of Sections 8(b), (c)
and (d), including the definitions of Covered Employee and other terms
used therein, shall be interpreted in a manner consistent with Code
Section 162(m) and regulations thereunder. The foregoing notwithstanding,
because the Committee cannot determine with certainty whether a given
Participant will be a Covered Employee with respect to a fiscal year that
has not yet been completed, the term Covered Employee as used herein shall
mean only a person designated by the Committee, at the time of grant of
Performance Awards, as likely to be a Covered Employee with respect to that
fiscal year. If any provision of the Plan as in effect on the date of
adoption or any agreements relating to Performance Awards that are
designated as intended to comply with Code Section 162(m) does not comply
or is inconsistent with the requirements of Code Section 162(m) or
regulations thereunder, such provision shall be construed or deemed amended
to the extent necessary to conform to such requirements, unless otherwise
determined by the Committee in its sole discretion.
9. Change of Control.
(a) Effect of "Change of Control." In the event of a "Change of
Control," the following provisions shall apply unless otherwise provided
in the Award agreement:
(i) Any Award carrying a right to exercise that was not
previously exercisable and vested shall become fully exercisable and
vested as of the time of the Change of Control and shall remain
exercisable and vested for the balance of the stated term of such
Award without regard to any termination of employment by the
Participant, subject only to applicable restrictions set forth in
Section 10(a) hereof;
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(ii) Any optionee who holds an Option shall be entitled to elect,
during the 90-day period immediately following a Change of Control, in
lieu of acquiring the shares of Stock covered by such Option, to
receive, and the Corporation shall be obligated to pay, in cash the
excess of the Change of Control Price over the exercise price of such
Option, multiplied by the number of shares of Stock covered by such
Option;
(iii) The restrictions, deferral of settlement, and
forfeiture conditions applicable to any other Award granted under the
Plan shall lapse and such Awards shall be deemed fully vested as of
the time of the Change of Control, except to the extent of any waiver
by the Participant and subject to applicable restrictions set forth in
Section 10(a) hereof; and
(iv) With respect to any outstanding Award subject to achievement
of performance goals and conditions under the Plan, such performance
goals and other conditions will be deemed to be met if and to the
extent so provided by the Committee in the Award agreement relating to
such Award.
(b) Definition of "Change of Control." A "Change of Control" shall be
deemed to have occurred upon:
(i) the first purchase of shares of Stock pursuant to a tender
offer or exchange offer (other than an offer by the Corporation or any
of its subsidiaries or any employee benefit plan maintained by the
Corporation or any of its subsidiaries) for all, or any part of, the
Stock;
(ii) any acquisition of voting securities of the Corporation by
any person or group (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), but excluding (A) the Corporation or any of its
subsidiaries or (B) any savings, pension or other benefits plan for
the benefit of employees of the Corporation or any of its subsidiaries
which theretofore did not beneficially own voting securities
representing more than 30% of the voting power of all outstanding
voting securities of the Corporation, if such acquisition results in
such entity, person or group owning beneficially securities
representing more than 30% of the voting power of all outstanding
voting securities of the Corporation;
(iii) the approval by the Corporation's stockholders of a
merger in which the Corporation does not survive as an independent,
publicly owned corporation, a consolidation, or a sale, exchange or
other disposition of all or substantially all the Corporation's
assets;
(iv) a change in the composition of the Board during any
period of two consecutive years such that individuals who at the
beginning of such period were members of the Board cease for any
reason to constitute at least a majority thereof, unless the election,
or the nomination for election by the Corporation's stockholders, of
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each new director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
the period; or
(v) any other event occurs which the Board determines, in its
discretion, would materially alter the structure of the Company or its
ownership.
As used herein, "voting power" means ordinary voting power for the
election of directors of the Corporation.
(c) Definition of "Change of Control Price." The "Change of Control
Price" means an amount in cash equal to the higher of (i) the amount of
cash and fair market value of property that is the highest price per share
paid (including extraordinary dividends) in any transaction triggering the
Change of Control or any liquidation of shares following a sale of
substantially all assets of the Corporation, or (ii) the highest Fair
Market Value per share at any time during the 90-day period preceding and
90-day period following the Change of Control.
10. General Provisions.
(a) Compliance with Legal and Other Requirements. The Corporation
may, to the extent deemed necessary or advisable by the Committee, postpone
the issuance or delivery of Stock or payment of other benefits under any
Award until completion of such registration or qualification of such Stock
or other required action under any federal or state law, rule or
regulation, listing or other required action with respect to any stock
exchange or automated quotation system upon which the Stock or other
securities of the Corporation are listed or quoted, or compliance with any
other obligation of the Corporation, as the Committee may consider
appropriate, and may require any Participant to make such representations,
furnish such information and comply with or be subject to such other
conditions as it may consider appropriate in connection with the issuance
or delivery of Stock or payment of other benefits in compliance with
applicable laws, rules, and regulations, listing requirements, or other
obligations. The foregoing notwithstanding, in connection with a Change
of Control, the Corporation shall take or cause to be taken no action, and
shall undertake or permit to arise no legal or contractual obligation, that
results or would result in any postponement of the issuance or delivery of
Stock or payment of benefits under any Award or the imposition of any other
conditions on such issuance, delivery or payment, to the extent that such
postponement or other condition would represent a greater burden on a
Participant than existed on the 90th day preceding the Change of Control.
(b) Limits on Transferability; Beneficiaries. No Award or other
right or interest of a Participant under the Plan shall be pledged,
hypothecated or otherwise encumbered or subject to any lien, obligation or
liability of such Participant to any party (other than the Corporation or a
subsidiary), or assigned or transferred by such Participant otherwise than
by will or the laws of descent and distribution or to a Beneficiary upon
the death of a Participant, and such Awards or rights that may be
exercisable shall be exercised during the lifetime of the Participant only
by the Participant or his or her guardian or legal representative, except
that Awards and other rights (other than ISOs and SARs in tandem therewith)
may be transferred
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to one or more Beneficiaries or other transferees during the lifetime of
the Participant, and may be exercised by such transferees in accordance
with the terms of such Award, but only if and to the extent such transfers
are permitted by the Committee pursuant to the express terms of an Award
agreement (subject to any terms and conditions which the Committee may
impose thereon). A Beneficiary, transferee, or other person claiming any
rights under the Plan from or through any Participant shall be subject to
all terms and conditions of the Plan and any Award agreement applicable to
such Participant, except as otherwise determined by the Committee, and to
any additional terms and conditions deemed necessary or appropriate by the
Committee.
(c) Adjustments. In the event that any dividend or other
distribution (whether in the form of cash, Stock, or other property),
recapitalization, forward or reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, share exchange,
liquidation, dissolution or other similar corporate transaction or event
affects the Stock such that an adjustment is determined by the Committee to
be appropriate under the Plan, then the Committee shall, in such manner as
it may deem equitable, adjust any or all of (i) the number and kind of
shares of Stock which may be delivered in connection with Awards granted
thereafter, (ii) the number and kind of shares of Stock by which annual
per-person Award limitations are measured under Section 5 hereof, (iii) the
number and kind of shares of Stock subject to or deliverable in respect of
outstanding Awards and (iv) the exercise price, grant price or purchase
price relating to any Award and/or make provision for payment of cash or
other property in respect of any outstanding Award. In addition, the
Committee is authorized to make adjustments in the terms and conditions of,
and the criteria included in, Awards (including Performance Awards and
performance goals) in recognition of unusual or nonrecurring events
(including, without limitation, events described in the preceding sentence,
as well as acquisitions and dispositions of businesses and assets)
affecting the Corporation, any subsidiary or any business unit, or the
financial statements of the Corporation or any subsidiary, or in response
to changes in applicable laws, regulations, accounting principles, tax
rates and regulations or business conditions or in view of the Committee's
assessment of the business strategy of the Corporation, any subsidiary or
business unit thereof, performance of comparable organizations, economic
and business conditions, personal performance of a Participant, and any
other circumstances deemed relevant; provided that no such adjustment shall
be authorized or made if and to the extent that such authority or the
making of such adjustment would cause Options, SARs or Performance Awards
granted under Section 8(b) hereof to Participants designated by the
Committee as Covered Employees and intended to qualify as
"performance-based compensation" under Code Section 162(m) and regulations
thereunder to otherwise fail to qualify as "performance-based compensation"
under Code Section 162(m) and regulations thereunder.
(d) Taxes. The Corporation and any subsidiary is authorized to
withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Stock, or any payroll or other
payment to a Participant, amounts of withholding and other taxes due or
potentially payable in connection with any transaction involving an Award,
and to take such other action as the Committee may deem advisable to enable
the Corporation and Participants to satisfy obligations for the payment of
withholding taxes and other tax obligations
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relating to any Award. This authority shall include authority to withhold
or receive Stock or other property and to make cash payments in respect
thereof in satisfaction of a Participant's tax obligations, either on a
mandatory or elective basis in the discretion of the Committee.
(e) Changes to the Plan and Awards. The Board may amend, alter,
suspend, discontinue or terminate the Plan or the Committee's authority to
grant Awards under the Plan without the consent of stockholders or
Participants, except that any amendment or alteration to the Plan shall be
subject to the approval of the Corporation's stockholders not later than
the annual meeting next following such Board action if such stockholder
approval is required by any federal or state law or regulation or the rules
of any stock exchange or automated quotation system on which the Stock may
then be listed or quoted, and the Board may otherwise, in its discretion,
determine to submit other such changes to the Plan to stockholders for
approval; provided that, without the consent of an affected Participant, no
such Board action may materially and adversely affect the rights of such
Participant under any previously granted and outstanding Award. The
Committee may waive any conditions or rights under, or amend, alter,
suspend, discontinue or terminate any Award theretofore granted and any
Award agreement relating thereto, except as otherwise provided in the Plan;
provided that, without the consent of an affected Participant, no such
Committee action may materially and adversely affect the rights of such
Participant under such Award. Notwithstanding anything in the Plan to the
contrary, if any right under this Plan would cause a transaction to be
ineligible for pooling of interest accounting that would, but for the right
hereunder, be eligible for such accounting treatment, the Committee may
modify or adjust the right so that pooling of interest accounting shall be
available, including the substitution of Stock having a Fair Market Value
equal to the cash otherwise payable hereunder for the right which caused
the transaction to be ineligible for pooling of interest accounting.
(f) Limitation on Rights Conferred under Plan. Neither the Plan nor
any action taken hereunder shall be construed as (i) giving any Eligible
Person or Participant the right to continue as an Eligible Person or
Participant or in the employ or service of the Corporation or a subsidiary,
(ii) interfering in any way with the right of the Corporation or a
subsidiary to terminate any Eligible Person's or Participant's employment
or service at any time, (iii) giving an Eligible Person or Participant any
claim to be granted any Award under the Plan or to be treated uniformly
with other Participants and employees, or (iv) conferring on a Participant
any of the rights of a stockholder of the Corporation unless and until the
Participant is duly issued or transferred shares of Stock in accordance
with the terms of an Award.
(g) Unfunded Status of Awards; Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for incentive and deferred
compensation. With respect to any payments not yet made to a Participant
or obligation to deliver Stock pursuant to an Award, nothing contained in
the Plan or any Award shall give any such Participant any rights that are
greater than those of a general creditor of the Corporation; provided that
the Committee may authorize the creation of trusts and deposit therein
cash, Stock, other Awards or other property, or make other arrangements to
meet the Corporation's obligations under the Plan. Such trusts or other
arrangements shall be consistent with the "unfunded" status of the Plan
unless the Committee otherwise determines with the consent of each affected
Participant. The trustee of such trusts
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may be authorized to dispose of trust assets and reinvest the proceeds in
alternative investments, subject to such terms and conditions as the
Committee may specify and in accordance with applicable law.
(h) Nonexclusivity of the Plan. Neither the adoption of the Plan by
the Board nor its submission to the stockholders of the Corporation for
approval shall be construed as creating any limitations on the power of the
Board or a committee thereof to adopt such other incentive arrangements as
it may deem desirable including incentive arrangements and awards which do
not qualify under Code Section 162(m).
(i) Payments in the Event of Forfeitures; Fractional Shares. Unless
otherwise determined by the Committee, in the event of a forfeiture of an
Award with respect to which a Participant paid cash or other consideration,
the Participant shall be repaid the amount of such cash or other
consideration. No fractional shares of Stock shall be issued or delivered
pursuant to the Plan or any Award. The Committee shall determine whether
cash, other Awards or other property shall be issued or paid in lieu of
such fractional shares or whether such fractional shares or any rights
thereto shall be forfeited or otherwise eliminated.
(j) Governing Law. The validity, construction and effect of the
Plan, any rules and regulations under the Plan, and any Award agreement
shall be determined in accordance with the Delaware General Corporation
Law, without giving effect to principles of conflicts of laws, and
applicable federal law.
(k) Awards under a Preexisting Plan. Upon approval of the Plan by
stockholders of the Corporation as required under Section 10(l) hereof, no
further awards shall be granted under a Preexisting Plan.
(l) Plan Effective Date and Shareholder Approval. The Plan has been
adopted by the Board effective March 15, 1997, subject to approval by the
stockholders of the Corporation.
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Exhibit 5
June 5, 1997
Fisher Scientific International Inc.
Liberty Lane
Hampton, New Hampshire 03842
Dear Sirs:
We have acted as counsel to Fisher Scientific International Inc., a
Delaware corporation (the "Company"), in connection with the filing by the
Company of a Registration Statement on Form S-8 (the "Registration Statement")
relating to (i) 1,189,600 shares of the Company's common stock, par value $.01
per share (the "Common Stock"), to be issued pursuant to the 1997 Equity Based
Award Plan of Fisher Scientific International Inc. (the "Plan").
We have examined the originals, or copies certified or otherwise
identified to our satisfaction, of the Plan and such other corporate records,
documents, certificates or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion set forth below. In rendering
such opinion, we have assumed that (i) the exercise price of options to be
granted pursuant to the Plan will not be less than the par value of Common Stock
subject thereto and (ii) grants of Common Stock subject to restrictions on
transferability pursuant to the Plan will be made only for past services to the
Company having an aggregate value not less than the aggregate par value of the
Common Stock so granted.
Based on the foregoing, we are of the opinion that authorized but not
previously issued shares of Common Stock which may be issued under the Plan have
been duly authorized and when issued in accordance with the terms of the Plan
will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement. In giving such consent, we do not thereby
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Debevoise & Plimpton
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Fisher Scientific International Inc. on Form S-8 of our report dated
February 6, 1997, appearing in the Annual Report on Form 10-K of Fisher
Scientific International Inc. for the year ended December 31, 1996, which is
part of this Registration Statement.
DELOITTE & TOUCHE LLP
/s/ Deloitte & Touche LLP
New York, New York
June 6, 1997
