SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Fisher Scientific International Inc.
(Name of Issuer)
Common Stock $0.01 par value per share
(Title of Class of Securities)
338032 20 4
(CUSIP Number of Class of Securities)
Eric L. Cochran, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 21, 1998
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the
subject of this Statement because of Rule 13d-1(b)(3) or
(4), check the following: ( )
Check the following box if a fee is being paid with this
Statement: ( )
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAMES OF REPORTING PERSONS - Thomas H. Lee Equity Fund III,
L.P.
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- 04-3279871
_________________________________________________________________
(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
Delaware
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 2,607,793 (see Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
2,607,793 (see Item 5)
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,607,793 (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
35.2%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
PN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAMES OF REPORTING PERSONS - Thomas H. Lee Foreign Fund III,
L.P.
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- 04-3303055
_________________________________________________________________
(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
Delaware
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 161,362 (see Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
161,362 (see Item 5)
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
161,362 (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
2.2%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
PN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAMES OF REPORTING PERSONS - THL FSI Equity Investors, L.P.
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- 04-3403584
_________________________________________________________________
(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
Delaware
__________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 1,310,201 (see Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
1,310,201 (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%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
PN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAMES OF REPORTING PERSONS - THL-CCI Limited Partnership
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- 04-3159375
_________________________________________________________________
(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
Massachusetts
__________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 160,601 (see Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
160,601 (see Item 5)
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
160,601 (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
2.2%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
PN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAMES OF REPORTING PERSONS - Thomas H. Lee Equity Advisors
III Limited Partnership
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- 04-3279882
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (x)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
N/A
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
__________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 4,079,356 (see Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
4,079.356 (see Item 5)
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,079, 356 (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
54.3%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
PN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAMES OF REPORTING PERSONS - THL Equity Trust III
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- 04-3279892
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (x)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
N/A
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
_________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 4,079,356 (see Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
4,079,356 (see Item 5)
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,079,356 (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
54.3%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
00
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
THL Investment Management Corp.
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (x)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS
N/A
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 160,601 (See Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
160,601 (See Item 5)
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
160,601 (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
2.2%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
CO
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
David V. Harkins
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY less than 1% (see Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
less than 1% (See Item 5)
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The 1995 Harkins Gift Trust
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
OO
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Thomas R. Shepherd Money Purchase Pension Plan (Keogh)
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
OO
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Scott A. Schoen
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
C. Hunter Boll
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Scott M. Sperling
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY less than 1% (See Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
less than 1% (See Item 5)
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sperling Family Limited Partnership
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
PN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Anthony J. DiNovi
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Thomas M. Hagerty
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warren C. Smith, Jr.
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Seth W. Lawry
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Joseph I. Incandela
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Kent R. Weldon
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Terrence M. Mullen
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Todd M. Abbrecht
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wendy L. Masler
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Andrew D. Flaster
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Trust Co. FBO Kristina A. Watts
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
OO
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Charles W. Robins
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
James Westra
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Charles A. Brizius
_________________________________________________________________
(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
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF less than 1% (See Item 5)
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON less than 1% (See Item 5)
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
less than 1% (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
less than 1%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 338032 20 4
_________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Thomas H. Lee
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (x)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS
N/A
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 160,601 (See Item 5)
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
160,601 (See Item 5)
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
160,601 (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
2.2%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_________________________________________________________________
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, New Hampshire 03842.
Item 2. Identity and Background.
(a) - (c) and (f)
This Schedule 13D is being filed jointly on behalf of the
following persons (collectively, the "Reporting Persons"): (1) Thomas
H. Lee Equity Fund III, L.P., a Delaware limited partnership ("Equity
Fund III"), (2) Thomas H. Lee Foreign Fund III, L.P., a Delaware
limited partnership ("Foreign Fund III"), (3) THL FSI Equity Investors,
L.P., a Delaware limited partnership ("THL FSI"), (4) THL-CCI Limited
Partnership, a Massachusetts limited partnership ("THL-CCI"), (5)
Thomas H. Lee Equity Advisors III Limited Partnership, a Massachusetts
limited partnership ("Advisors III"), (6) THL Equity Trust III, a
Massachusetts business trust ("Trust III"), (7) THL Investment
Management Corp., a Massachusetts corporation ("THL Investment") and
(8) certain persons affiliated with Thomas H. Lee Company, a
Massachusetts sole proprietorship (the "Additional THL Persons") (set
forth on the attached Schedule I).
The address of each of the Reporting Persons is c/o Thomas H.
Lee Company, 75 State Street, Suite 2600, Boston, Massachusetts 02109.
Each of Equity Fund III, Foreign Fund III, THL FSI and THL-
CCI is principally engaged in the business of investment in securities.
Advisors III is principally engaged in the business of serving as
general partner of Equity Fund III, Foreign Fund III and THL FSI.
Trust III is principally engaged in the business of serving as general
partner of Advisors III. THL Investment is principally engaged in the
business of serving as general partner of THL-CCI. The Additional THL
Persons are employed as indicated in Schedule A by Thomas H. Lee
Company.
Attached as Schedule A to this Schedule 13D is information
concerning the Reporting Persons and other persons and entities as to
which such information is required to be disclosed in response to Item
2 and General Instruction C to Schedule 13D.
(d) and (e)
None of the Reporting Persons or any of their officers or
trustees has been convicted in a criminal proceeding during the past
five years (excluding traffic violations and similar misdemeanors).
None of the Reporting Persons or any of their officers or
trustees has been party to a civil proceeding of a judicial or
administrative body of competent jurisdiction during the past five
years as a result of which it was or is subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to the Subscription Agreement and the Merger
Agreement (both as defined below in Item 4), the total consideration
paid by Equity Fund III, Foreign Fund III, THL FSI, THL-CCI and the
Additional THL Persons (collectively, the "THL Entities") in connection
with their purchase of the Shares was $193,924,084. The acquisition of
the Shares is described below in Item 4.
Equity Fund III, Foreign Fund III, THL FSI and THL CCI
obtained funds to make the purchases described herein through capital
contributions from their investors. The Additional THL Persons
obtained funds from their personal accounts to make the purchases
described herein.
Item 4. Purpose of Transactions.
The THL Entities entered into the Agreements (as defined
below) to purchase the Shares for general investment purposes. The THL
Entities retain the right to change their investment intent. Subject
to market conditions and other factors, the THL Entities 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 (defined below), may enter into
agreements with the management of Fisher relating to acquisitions of
shares of the Surviving Corporation by members of management, issuance
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.
On August 7, 1997, Fisher and FSI Merger Corp. ("FSI"), a
Delaware corporation that, as of August 4, 1997, was wholly-owned by
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 2). 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 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. 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"). Holders of outstanding Shares at the Effective Time
elected to retain 4,298,358 Shares in the Merger. Because no more than
746,114 Shares could be retained in the Merger, the 4,298,358 Shares
elected to be retained were subject to proration and each elected Share
was converted into .173581167 retained Shares. All remaining Shares
outstanding at the Effective Time, including the 3,552,244 Shares
elected to be retained but which were subject to proration, were
converted into the right to receive $48.25 per share in cash. As
provided in the Merger Agreement, the Management Investors elected to
retain an additional 228,857 Shares (the "Management Shares") and
elected to convert at the Effective Time outstanding options into an
additional 602,264 Shares.
Also, members of Fisher management were granted options to
purchase up to 1,653,322 Shares at exercise prices ranging from $48.25
per share to $144.75 per share.
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 4) with the THL Entities; 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 Millenium Partners, L.P., DLJ Millenium 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. (collectively,
the "DLJMB 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 DLJMB 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 (6,507,772
shares less the Management Shares), of which 5,471,857 were of Fisher
Common Stock (which is voting) and 807,058 were of Fisher non-voting
common stock.
Simultaneous 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 5) 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 certain Fisher management stockholders (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 3). The Investors' Agreement, together with the Merger
Agreement, 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 DLJ Merchant Banking Partners II, L.P., 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).
Following the Effective Time, the Board of Directors
currently consists of Messrs. Scott M. Sperling, Anthony J. DiNovi,
David V. Harkins and Kent R. Weldon, who are affiliates of one or more
of the THL Entities; Messrs. Michael D. Dingman, Paul M. Montrone and
Robert A. Day, each of whom was a member of the Board of Directors
prior to the Effective Time; and Messrs. Paul M. Meister and Mitchell
J. Blutt. One seat on the Board is currently vacant.
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.
Item 5. Interest in Securities of the Issuer.
(a) and (b)
By virtue of the Investors' Agreement, the THL Entities, the
Institutional Investors (except for Chase) 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 (assuming
exercise of the Warrants). Each of the Reporting Persons expressly
disclaims the existence of such shared power.
By virtue of the Investors' Agreement, the THL Entities, the
Institutional Investors (except for Chase) 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 Reporting Person 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 beneficial ownership of
those Investors' Shares held by any other members of such group.
The Reporting Persons may together constitute a "group"
within the meaning of Rule 13d-5(b) under the Exchange Act. As a
member of a group, each Reporting Person may be deemed to beneficially
own the Shares beneficially owned by the members of the group as a
whole (collectively, the "THL Shares"). Each of the Reporting Persons
expressly disclaims beneficial ownership of those THL Shares held by
any other members of such group.
Equity Fund III has obtained direct beneficial ownership of
2,409,525 Shares pursuant to the Subscription Agreement and the Merger
Agreement, representing approximately 33.5% of the outstanding Shares
as of January 21, 1998 (the "Outstanding Shares"). Equity Fund III has
also obtained indirect beneficial ownership of 198,268 Shares pursuant
to the Warrant Acquisition Agreement. Assuming Equity Fund III's
exercise of the Warrants, Equity Fund III has obtained beneficial
ownership of approximately 35.2% of the Outstanding Shares as of
January 21, 1998. Equity Fund III has shared voting and shared
dispositive power with respect to such Shares.
Foreign Fund III has obtained direct beneficial ownership of
149,094 Shares pursuant to the Subscription Agreement and the Merger
Agreement, representing approximately 2.1% of the Outstanding Shares.
Foreign Fund III has also obtained indirect beneficial ownership of
12,268 Shares pursuant to Warrants issued under the Warrant Acquisition
Agreement. Assuming Foreign Fund III's exercise of the Warrants,
Foreign Fund III has obtained beneficial ownership of approximately
2.2% of the Outstanding Shares as of January 21, 1998. Foreign Fund
III has shared voting and shared dispositive power with respect to such
Shares.
THL FSI has obtained direct beneficial ownership of 1,210,587
Shares pursuant to the Subscription Agreement and the Merger Agreement,
representing approximately 16.8% of the Outstanding Shares. THL FSI
has also obtained indirect beneficial ownership of 99,614 Shares
pursuant to Warrants issued under the Warrant Acquisition Agreement.
Assuming THL FSI's exercise of the Warrants, THL FSI has obtained
beneficial ownership of approximately 17.9% of the Outstanding Shares
as of January 21, 1998. THL FSI has shared voting and shared
dispositive power with respect to such Shares.
Advisors III, as sole general partner of Equity Fund III,
Foreign Fund III and THL FSI, and Trust III, as sole general partner of
Advisors III, may be deemed to share voting and dispositive power with
respect to 4,079,356 Shares beneficially owned by Equity Fund III,
Foreign Fund III and THL FSI, which represents approximately 54.3% of
the Outstanding Shares. The filing of this Schedule 13D by Advisors
III and Trust III shall not be construed as an admission that Advisors
III or Trust III is, for the purpose of Section 13(d) of the Exchange
Act, the beneficial owner of Shares held by Equity Fund III, Foreign
Fund III and THL FSI.
THL-CCI has obtained direct beneficial ownership of 148,392
Shares pursuant to the Subscription Agreement and the Merger Agreement,
representing approximately 2.1% of the Outstanding Shares. THL-CCI has
also obtained indirect beneficial ownership of 12,209 Shares pursuant
to Warrants issued under the Warrant Acquisition Agreement. Assuming
THL-CCI's exercise of the Warrants, THL-CCI has obtained beneficial
ownership of approximately 2.2% of the Outstanding Shares as of January
21, 1998. THL-CCI has, subject to the Agreements, sole voting and sole
dispositive power with respect to such Shares.
THL Investment, as sole general partner of THL-CCI, and
Thomas H. Lee, as chief executive officer and sole director of THL
Investment, may be deemed to share voting and dispositive power with
respect to 160,601 Shares beneficially owned by THL-CCI, which
represents approximately 2.2% of the Outstanding Shares. The filing of
this Schedule 13D by THL Investment and Mr. Lee shall not be construed
as an admission that THL Investment or Mr. Lee is, for the purpose of
Section 13(d) of the Exchange Act, the beneficial owner of Shares held
by THL-CCI.
Each of the Additional THL Persons other than Mr. Lee has obtained
both direct and indirect beneficial ownership of less than 1% of the Outstand-
ing Shares. Each of the Additional THL Persons other than Mr. Lee has, subject
to the Agreements, sole voting and sole dispositive power with respect to
such Shares. David V. Harkins may be deemed to share voting and dispositive
power over Shares held by the 1995 Harkins Gift Trust. The filing of
this Schedule 13D shall not be construed as an admission that Mr.
Harkins is, for the purpose of Section 13(d) of the Exchange Act, the
beneficial owner of such Shares. Scott M. Sperling may be deemed to
share voting and dispositive power over Shares held by the Sperling
Family Limited Partnership. The filing of this Schedule 13D shall not
be construed as an admission that Mr. Sperling is, for the purpose of
Section 13(d) of the Exchange Act, the beneficial owner of such 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 and 4 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.
The responses to Items 3, 4, and 5 of this Schedule 13D and
the Exhibits to this Schedule 13D are incorporated herein by reference.
Except for the agreements described in the response to Item
4, to the best of 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, put 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 dated as of
February 2, 1998 among the Reporting
Persons.
Exhibit 2: Second Amended and Restated Agreement and
Plan of Merger dated as of November 14,
1997, as amended, between Fisher and FSI
Merger Corp. (previously filed as Exhibit
2.1 to the Registration Statement on Form
S-4 (Registration No. 333-42777) filed
with the Securities and Exchange
Commission on December 19, 1997 and
incorporated herein by reference
thereto).
Exhibit 3: Investors' Agreement dated as of January
21, 1998 among Fisher, the THL Entities,
the Institutional Investors and the
Management Investors (previously filed as
Exhibit 10.22 to the Post-Effective
Amendment No. 1 to the Form S-4, filed
with the Securities and Exchange
Commission on February 2, 1998 and
incorporated herein by reference
thereto).
Exhibit 4: *Subscription Agreement dated as of
January 21, 1998 among FSI Merger Corp.
and the buyers named therein.
Exhibit 5: *Common Stock Warrant Acquisition
Agreement dated as of January 21, 1998
among Fisher, the THL Entities and the
Institutional Investors.
Exhibit 6: *Power of Attorney dated as of February
2, 1998 granted by the Additional THL
Persons in favor of Kent R. Weldon.
*Filed herewith.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of each of the undersigned, such person certifies that the information
set forth in this Statement with respect to such person is true,
complete and correct.
IN WITNESS WHEREOF, each of the undersigned has executed this
instrument as of the 2nd day of February, 1998.
THOMAS H. LEE EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, its General Partner
By: THL Equity Trust III, its
General Partner
By: /s/ Scott M. Sperling
-------------------------------------
Name: Scott M. Sperling
Title: Vice President
THOMAS H. LEE FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, its General Partner
By: THL Equity Trust III, its
General Partner
By: /s/ Scott M. Sperling
-------------------------------------
Name: Scott M. Sperling
Title: Vice President
THL FSI EQUITY INVESTORS, L.P.
By: THL Equity Advisors III Limited
Partnership, its General Partner
By: THL Equity Trust III, its General
Partner
By: /s/ Scott M. Sperling
-------------------------------------
Name: Scott M. Sperling
Title: Vice President
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
its General Partner
By: /s/ Kent R. Weldon
-------------------------------------
Name: Kent R. Weldon
Title: Vice President
THOMAS H. LEE EQUITY ADVISORS III
LIMITED PARTNERSHIP
By: THL Equity Trust III, its General
Partner
By: /s/ Scott M. Sperling
-------------------------------------
Name: Scott M. Sperling
Title: Vice President
THL EQUITY TRUST III
By: /s/ Scott M. Sperling
-------------------------------------
Name: Scott M. Sperling
Title: Vice President
THL INVESTMENT MANAGEMENT CORP.
By: /s/ Kent R. Weldon
-------------------------------------
Name: Kent R. Weldon
Title: Vice President
By: /s/ Kent R. Weldon
-------------------------------------
Name: Kent R. Weldon
ADDITIONAL THL PERSONS
as listed on Schedule I
to Schedule 13D, pursuant
to powers of attorney executed
in favor of and granted and
delivered to Kent R. Weldon
By: Kent R. Weldon,
Attorney-in-fact for all
Additional THL Persons
By: /s/ Kent R. Weldon
-------------------------------------
Name: Kent R. Weldon
SCHEDULE A
THL Equity Trust III
Each of the following officers and trustees of THL Equity
Trust III is a United States citizen and is employed by the Thomas H.
Lee Company, 75 State Street, Boston, Massachusetts 02109.
Officers:
Chairman Thomas H. Lee
1 Old Farm Road, Lincoln, MA 01773
President David V. Harkins
8 Corn Point Road, Marblehead, MA 01945
Vice Presidents C. Hunter Boll
45 Fletcher Street, Winchester, MA 01890
Thomas R. Shepherd
172 Harvard Road, Stow, MA 01775
Anthony J. DiNovi
167 Commonwealth Avenue, #9, Boston, MA 02116
Thomas M. Hagerty
256 Beacon Street, Apt. #4, Boston, MA 02116
Joseph J. Incandela
139 Abbott Road, Wellesley Hills, MA 02181
Scott A. Schoen
65 Laurel Road, Weston, MA 02193
Warren C. Smith, Jr.
38 Coolidge Lane, Dedham, MA 02026
Scott M. Sperling
4 Moore Road, Wayland, MA 01778
Seth W. Lawry
330 Dartmouth Street, Apt. #7S, Boston, MA 02116
Treasurer Wendy L. Masler
11 Waverly Street, #3, Brookline, MA 02115
Asst. Treasurer Andrew D. Flaster
69 Wilshire Park, Needham, MA 02192
Clerk Wendy L. Masler
11 Waverly Street, #3, Brookline, MA 02115
Asst. Clerks Charles W. Robins, Esq.
50 Lehigh Road, Wellesley, MA 02181
Jeffrey S. Wieand, Esq.
1695 Lowell Road, Concord, MA 01742
Trustees:
Thomas H. Lee 1 Old Farm Road, Lincoln, MA 01773
David V. Harkins 8 Corn Point Road, Marblehead, MA 01945
C. Hunter Boll 45 Fletcher Street, Winchester, MA 01890
Thomas R. Shepherd 172 Harvard Road, Stow, MA 01775
Anthony J. DiNovi 167 Commonwealth Avenue, #9, Boston, MA 02116
Thomas M. Hagerty 256 Beacon Street, Apt. #4, Boston, MA 02116
Warren C. Smith, Jr. 38 Coolidge Lane, Dedham, MA 02026
Scott M. Sperling 4 Moore Road, Wayland, MA 01778
THL Investment Management Corp.
Each of the following officers and directors of the THL
Investment Management Corp. is a United States citizen and is employed
by the Thomas H. Lee Company, 75 State Street, Boston, Massachusetts
02109.
Officers:
Chief Executive Thomas H. Lee
Officer and 1 Old Farm Road, Lincoln, MA 01773
Chairman
of the Board
President David V. Harkins
8 Corn Point Road, Marblehead, MA 01945
Vice Presidents C. Hunter Boll
45 Fletcher Street, Winchester, MA 01890
Anthony J. DiNovi
167 Commonwealth Avenue, #9, Boston, MA 02116
Thomas M. Hagerty
256 Beacon Street, Apt. #4, Boston, MA 02116
Joseph J. Incandela
139 Abbott Road, Wellesley Hills, MA 02181
Wendy L. Masler
11 Waverly Street, #3, Brookline, MA 02115
Scott A. Schoen
65 Laurel Road, Weston, MA 02193
Thomas R. Shepherd
172 Harvard Road, Stow, MA 01755
Warren C. Smith, Jr.
38 Coolidge Lane, Dedham, MA 02026
Scott M. Sperling
4 Moore Road, Wayland, MA 01778
Seth W. Lawry
330 Dartmouth Street, Apt. #7S, Boston, MA 02116
Kent R. Weldon
134 West Newton Street, Boston, MA 02118
Treasurer Wendy L. Masler
11 Waverly Street, #3, Brookline, MA 02115
Asst. Treasurer Andrew D. Flaster
69 Wilshire Park, Needham, MA 02192
Clerk Wendy L. Masler
11 Waverly Street, #3, Brookline, MA 02115
Asst. Clerks Jeffrey S. Wieand
1695 Lowell Road, Concord, MA 01742
Charles W. Robins
50 Lehigh Road, Wellesley, MA 02181
James Westra
5 Stage Hill Road, Wenham, MA 01984
Director:
Thomas H. Lee 1 Old Farm Road, Lincoln, MA 01773
SCHEDULE I
ADDITIONAL THL PERSONS
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
Thomas H. Lee
JOINT FILING AGREEMENT
This Agreement is made and entered into as of February 2,
1998, by and between each of the undersigned.
In accordance with Rule 13d-1(f) of the Securi ties
Exchange Act of 1934, as amended, each of the par ties hereto agrees with
the other parties that the state ment of Schedule 13D pertaining to
certain securities of Fisher Scientific International Inc., to which this
agreement is an exhibit, is filed by and on behalf of each such party and
that any amendment thereto will be filed on behalf of each such party.
THOMAS H. LEE EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership,
its General Partner
By: THL Equity Trust III,
its General Partner
By: /s/ Scott M. Sperling
_______________________________
Name: Scott M. Sperling
Title: Vice President
THOMAS H. LEE FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, its General Partner
By: THL Equity Trust III,
its General Partner
By: /s/ Scott M. Sperling
_____________________________
Name: Scott M. Sperling
Title: Vice President
THL FSI EQUITY INVESTORS, L.P.
By: THL Equity Advisors III Limited
Partnership, its General Partner
By: THL Equity Trust III,
its General Partner
By: /s/ Scott M. Sperling
______________________________
Name: Scott M. Sperling
Title: Vice President
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
its General Partner
By: /s/ Kent R. Weldon
____________________________
Name: Kent R. Weldon
Title: Vice President
THOMAS H. LEE EQUITY ADVISORS III
LIMITED PARTNERSHIP
By: THL Equity Trust III,
its General Partner
By: /s/ Scott M. Sperling
____________________________
Name: Scott M. Sperling
Title: Vice President
THL EQUITY TRUST III
By: /s/ Scott M. Sperling
__________________________
Name: Scott M. Sperling
Title: Vice President
THL INVESTMENT MANAGEMENT CORP.
By: /s/ Kent R. Weldon
___________________________
Name: Kent R. Weldon
Title: Vice President
ADDITIONAL THL PERSONS
as listed on Schedule I
to Schedule 13D, pursuant
to powers of attorney executed
in favor of and granted and
delivered to Kent R. Weldon
By: Kent R. Weldon,
Attorney-in-fact for all
Additional THL Persons
By: /s/ Kent R. Weldon
_____________________________
Name: Kent R. Weldon
By: /s/ Kent R. Weldon
____________________________
Name: Kent R. Weldon
EXHIBIT 4
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 Agreement, intending to be legally bound,
mutually agree as follows:
ARTICLE I
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 Company 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:
2.1 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 accordance 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
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
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
Stockholder Number of Shares Number of Shares
----------- of Voting of Non-Voting
Common Stock Common Stock
---------------- ---------------
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
- -----
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]
EXHIBIT 5
FISHER SCIENTIFIC INTERNATIONAL INC.
COMMON STOCK WARRANT ACQUISITION AGREEMENT
Dated as of January 21, 1998
TABLE OF CONTENTS
Page
PARTIES..................................................................4
1. DEFINITIONS........................................................1
2. ORIGINAL ISSUE OF WARRANTS.........................................2
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...............................................2
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
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......................8
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..................................................9
7. ADJUSTMENTS........................................................9
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............................................11
9. WARRANT HOLDERS...................................................11
9.1. No Voting Rights............................................11
9.2. Right of Action.............................................11
10. COVENANTS.........................................................12
10.1. Reservation of Shares......................................12
10.2. Determinations by Board of Directors.......................12
11. MISCELLANEOUS.....................................................12
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' 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."
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
<TABLE>
<CAPTION>
EXHIBIT A -- INVESTORS COMMON STOCK WARRANT ACQUISITION AGREEMENT
NUMBER OF WARRANTS ACQUIRED BY EACH INSTITUTIONAL INVESTOR
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.
EXHIBIT 6
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby makes, constitutes and appoints Kent R.
Weldon, acting individually, as such person's true and lawful
attorney-in-fact and agent with full power of substitution and revocation
for such person and in such person's name, place and stead, in any and
all capacities, to execute, acknowledge, deliver and file any and all
filings required by the Securities Exchange Act of 1934, as amended,
including Section 13 of such Act, and the rules and regulations
thereunder, and requisite documents in connection with such filings,
including joint filing agreements, respecting securities of Fisher
Scientific International Inc., a Delaware corporation, that the
undersigned beneficially owns, including but not limited to Schedule 13D
and any amendments thereto.
This power of attorney shall be valid with respect to any of
the undersigned from the date hereof until revoked by such person.
IN WITNESS WHEREOF, each of the undersigned has executed this
instrument as of the 2nd day of February, 1998.
/s/ David V. Harkins
---------------------------------------
David V. Harkins
THE 1995 HARKINS GIFT TRUST
By: /s/ Sheryll J. Harkins
-----------------------------------
Name: Sheryll J. Harkins
Title: Authorized Signatory
THOMAS R. SHEPHERD MONEY PURCHASE
PENSION PLAN (KEOGH)
By: /s/ Thomas R. Shepherd
-----------------------------------
Name: Thomas R. Shepherd
Title: Authorized Signatory
/s/ Scott A. Scheon
--------------------------------------
Scott A. Schoen
/s/ C. Hunter Boll
--------------------------------------
C. Hunter Boll
/s/ Scott M. Sperling
--------------------------------------
Scott M. Sperling
SPERLING FAMILY LIMITED PARTNERSHIP
By: /s/ Scott M. Sperling
-----------------------------------
Name: Scott M. Sperling
Title: Authorized Signatory
/s/ Anthony J. DiNovi
--------------------------------------
Anthony J. DiNovi
/s/ Thomas J. Hagerty
--------------------------------------
Thomas J. Hagerty
/s/ Warren C. Smith, Jr.
--------------------------------------
Warren C. Smith, Jr.
/s/ Seth W. Lawry
--------------------------------------
Seth W. Lawry
/s/ Joseph J. Incandela
--------------------------------------
Joseph J. Incandela
/s/ Terrence M. Mullen
--------------------------------------
Terrence M. Mullen
/s/ Todd M. Abbrecht
-----------------------------------===
Todd M. Abbrecht
/s/ Wendy L. Masler
--------------------------------------
Wendy L. Masler
/s/ Andrew D. Flaster
--------------------------------------
Andrew D. Flaster
FIRST TRUST CO.
FBO KRISTINA A. WATTS
By: /s/ Kristina A. Watts
-----------------------------------
Name: Kristina A. Watts
Title: Authorized Signatory
/s/ Charles W. Robins
--------------------------------------
Charles W. Robins
/s/ James Westra
--------------------------------------
James Westra
/s/ Charles A. Brizius
--------------------------------------
Charles A. Brizius
/s/ Thomas H. Lee
--------------------------------------
Thomas H. Lee
