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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM 10-K/A
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
FOR THE TRANSITION PERIOD FROM ---------------------------- TO
----------------------------
COMMISSION FILE NUMBER 1-10920.
FISHER SCIENTIFIC INTERNATIONAL INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 02-0451017
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
LIBERTY LANE, HAMPTON, NH 03842
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(603) 926-5911
Securities registered pursuant to Section 12(b) of the Act:
<CAPTION>
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
- ----------------------------------- ------------------------
<S> <C>
Common Stock, par value New York Stock Exchange
$.01 per share
</TABLE>
Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes _ X_ No ___
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
The aggregate market value of the voting stock held by non-affiliates of the
registrant as of March 13, 1998 was approximately $50,782,384.
The number of shares of Common Stock outstanding as of March 13, 1998 was
7,197,729.
Documents Incorporated by Reference: Portions of registrant's Proxy
Statement for the Annual Meeting of Stockholders to be held May 12, 1998 are
incorporated by reference into Part III.
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FISHER SCIENTIFIC INTERNATIONAL, INC.
FORM 10-K/A
(Amendment No. 1)
FOR THE YEAR ENDED DECEMBER 31, 1997
INDEX
Page No.
--------
Part IV
Item 14 - Exhibits, Financial Statement Schedules and
Reports on Form 8-K................................ 3
SIGNATURE.......................................................... 7
EXHIBITS............................................................ 8
2
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The undersigned registrant hereby amends Item 14 of Part IV of its Annual
Report on Form 10-K for the period ended December 31, 1997.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1)FINANCIAL STATEMENTS. The Index to Financial Statements of the
Company appears at page 26 of the Annual Report.
(2) SCHEDULES. Financial statement schedules are listed under Item 14(d)
in the Annual Report.
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(3) EXHIBITS. Exhibits 10.1, 10.2, 10.12 through 10.22 constitute all of
the management contracts and compensation plans and
arrangements of the Company required to be filed as
exhibits to the Annual Report.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------------- ---------
<C> <S> <C>
2.1 -- Second Amended and Restated Agreement and Plan of Merger, as
amended, dated as of November 14, 1997 by and between the Company
and FSI Merger Corp. (2).
3.1 -- Certificate of Designations of Series A Junior Participating
Preferred Stock, dated June 9, 1997 (3).
3.2 -- Restated Certificate of Incorporation of the Company. (6)
3.3 -- Bylaws of the Company. (10)
4.1 -- Certificate of Designations of Series A Junior Participating
Preferred Stock, dated June 9, 1997 (see Exhibit 3.1)
4.2 -- Rights Agreement dated as of June 9, 1997, between the Company and
ChaseMellon Shareholder Services L.L.C. as Rights Agreement, which
included the form of Right Certificate as Exhibit A and the Summary
of Rights to Purchase Common Stock as Exhibit B. (3)
4.3 -- First Amendment to Rights Agreement dated as of August 7, 1997
between the Company and ChaseMellon Shareholder Services L.L.C. (4)
4.4 -- Specimen Certificate of Common Stock, $.01 par value per share, of
the Company. (7)
4.5 -- Restated Certificate of Incorporation of the Company (see Exhibit
3.2).
4.6 -- Bylaws of the Company (see Exhibit 3.3).
4.7 -- Senior Debt Securities Indenture dated as of December 18, 1995
between the Company and Mellon Bank, N.A., as Trustee (6)
10.1 -- Amended and Restated Employment Agreement dated January 21, 1998
between the Company and Paul M. Montrone.*
10.2 -- Amended and Restated Employment Agreement dated January 21, 1998
between the Company and Paul M. Meister.*
10.3 -- Rights Agreement dated as of June 9, 1997, between the Company and
ChaseMellon Shareholder Services L.L.C. as Rights Agreement, which
includes the form of Right Certificate as Exhibit A and the Summary
of Rights to Purchase Common Stock as Exhibit B (see Exhibit 4.2).
10.4 -- First Amendment to Rights Agreement dated as of August 7, 1997
between the Company and ChaseMellon Shareholder Services L.L.C. (see
Exhibit 4.3).
10.5 -- Second Amended and Restated Agreement and Plan of Merger, dated as
of November 14, 1997, as amended, by and between the Company and FSI
Merger Corp. (see Exhibit 2.1).
10.6 -- Credit Agreement among Fisher, Certain Subsidiaries of Fisher,
Various Lending Institutions, the Chase Manhattan Bank, as
Administration Agent, The Chase Manhattan Bank of Canada, as
Administration Agent, Chase Manhattan International Limited, as U.K.
Administration Agent, Merrill Lynch Capital Corporation, as
Syndication Agent and DLJ Capital Funding, Inc., as Documentation
Agent dated as of January 21, 1998. (5)
</TABLE>
4
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S> <C>
10.7 -- Indenture dated as of January 21, 1998 between Fisher and Sate
Street Bank and Trust Company, as Trustee relating to the 9% Senior
Subordinated Notes due 2008. (5)
10.8 -- Registration Right Agreement dated as of January 21, 1998 among
Fisher and Merrill Lynch, Pierce, Fenner and Smith Incorporated,
Chase Securities Inc. and Donaldson, Lufkin and Jenrette Securities
Corporation. (11)
10.9 -- Restated Environmental Matters Agreement, dated as of February 26,
1986, as amended and restated as of July 28, 1989, among
Allied-Signal Inc., The Henley Group, Inc., The Wheelabrator Group
Inc., New Hampshire Oak, Inc. and Fisher Scientific Group Inc. (7)
10.10 -- Amended and Restated Credit Agreement dated as of February 12, 1996,
amending and restating the Term Loan and Revolving Credit Agreement,
dated as of October 16, 1995 among Fisher Scientific International
Inc., Certain Commercial Lending Institutions and Toronto Dominion
(Texas), Inc. (8)
10.11 -- Amendment No. 1 dated February 12, 1996 to the Term Loan Agreement
dated October 16, 1995 among Fisher Scientific International Inc.,
Fisher Scientific U.K. Limited, Certain Commercial Lending
Institutions and The Toronto Dominion Bank. (8)
10.12 -- 1991 Stock Plan for Executive Employees of Fisher Scientific
International Inc. and its Subsidiaries. (9)
10.13 -- Fisher Scientific International Inc. Retirement Plan. (10)
10.14 -- Fisher Scientific International Inc. Savings and Profit Sharing
Plan. (10)
10.15 -- Fisher Scientific International Inc. Incentive Compensation Plan.
(8)
10.16 -- Restricted Unit Plan for Non-Employee Directors of Fisher Scientific
International Inc. (10)
10.17 -- Fisher Scientific International Inc. Deferred Compensation Plan for
Non-Employee Directors. (10)
10.18 -- Retirement Plan for Non-Employee Directors of Fisher Scientific
International Inc. (10)
10.19 -- Fisher Scientific International Inc. Long-Term Incentive Plan. (9)
10.20 -- 1995 Operating Unit Stock Plan. (8)
10.21 -- Fisher Scientific International Inc. Equity-Based Award Plan.*
10.22 -- Fisher Scientific International Inc. 1998 Equity and Incentive Plan.
(2)
21.1 -- List of Subsidiaries of the Company.*
23.1 -- Consent of DELOITTE & TOUCHE LLP.*
27.1 -- Financial Data Schedule-Fiscal Year Ended 1997.*
27.2 -- Financial Data Schedule-Quarters 1, 2, 3 of 1997.*
27.3 -- Financial Data Schedule-Fiscal Year Ended 1996 and Quarters 1, 2, 3
of 1996.*
</TABLE>
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* Filed herewith
(1) Included as an Annex to the Company's Proxy Statement/Prospectus
included in the Company's Registration Statement on Form S-4
(Registration No. 333-92777) filed with the Securities and Exchange
Commission on December 19, 1997 and amended on February 28, 1998.
5
<PAGE>
(2) Included as an exhibit to the Company's Registration Statement on Form
S-4 (Registration No. 333-42777) filed with the Securities and Exchange
Commission on December 19, 1997 and amended on February 2, 1998 and
incorporated herein by reference.
(3) Included as an exhibit to the Company's Registration Statement on Form
8-A filed with the Securities and Exchange Commission on June 9, 1997 and
incorporated herein by reference.
(4) Included as an exhibit to the Company's current report on Form 8-K dated
August 7, 1997 filed with the Securities and Exchange Commission on
August 8, 1997 and incorporated herein by reference.
(5) Included as an exhibit to the Company's current report on Form 8-K
(Registration No. 001-10920) dated January 21, 1998 filed with the
Securities and Exchange Commission on February 5, 1998 and incorporated
herein by reference.
(6) Included as an exhibit to the Company's Registration Statement on Form
S-3 (Registration No. 33-99884) filed with the Securities and Exchange
Commission on November 30, 1995 and incorporated herein by reference.
(7) Included in an exhibit to the Company's Registration Statement on Form
S-1 (Registration No. 33-43505) filed with the Securities and Exchange
Commission on October 23, 1991 and incorporated herein by reference.
(8) Included in an exhibit to the Company's Form 10-K for the year ended
December 31, 1995, filed with the Securities and Exchange Commission on
March 21, 1996 and incorporated herein by reference.
(9) Included in an exhibit to the Company's Form 10-K for the year ended
December 31, 1994, filed with the Securities and Exchange Commission on
March 24, 1995 and incorporated herein by reference.
(10) Included in an exhibit to the Company's Form 10-K for the year ended
December 31, 1992, filed with the Securities and Exchange Commission on
March 24, 1993 and incorporated herein by reference.
(11) Included as an exhibit to the Company's Registration Statement on
Form S-4 (Registration No. 333-48285) filed with the Securities and
Exchange Commission on March 19, 1998.
(b) REPORTS ON FORM 8-K: The Company did not file any Current Reports on
Form 8-K during the last quarter of the period covered by this report.
(c) EXHIBITS. The following exhibits are filed with this annual report:
<TABLE>
<C> <S> <C> <C>
10.1 -- Amended and Restated Employment Agreement dated
January 21, 1998 between the Company and Paul M. Montrone.
10.2 -- Amended and Restated Employment Agreement dated
January 21, 1998 between the Company and Paul M. Meister.
10.21 -- Fisher Scientific International Inc. Equity-Based
Award Plan.
21.1 -- List of Subsidiaries of the Company.
23.1 -- Consent of DELOITTE & TOUCHE LLP.
27.1 -- Financial Data Schedule - Fiscal Year End 1997.
27.2 -- Financial Data Schedule - Quarters, 1,2,3 of 1997.
27.3 -- Financial Data Schedule - Fiscal Year Ended 1996 and
Quarters 1,2,3 of 1996.
</TABLE>
(d) FINANCIAL STATEMENT SCHEDULES.
All financial statement schedules have been omitted since the information
required to be submitted has been included in the financial statements and
related notes or because they are either not applicable or not required under
the rules of Regulation S-X.
6
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has caused this amendment to be signed
on its behalf by the undersigned, thereunto duly authorized.
FISHER SCIENTIFIC INTERNATIONAL INC.
By: /s/ TODD M. DUCHENE
------------------------------------
Todd M. DuChene
VICE PRESIDENT-GENERAL COUNSEL AND
SECRETARY
Date: April 17, 1998
7
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
EXHIBITS
TO
FORM 10-K/A
(Amendment No. 1)
for the year ended December 31, 1997
---------------
FISHER SCIENTIFIC INTERNATIONAL INC.
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<PAGE>
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
The Change of Control Employment Agreement by and between Fisher
Scientific International, Inc., a Delaware corporation (the "Company") and Paul
M. Montrone (the "Executive"), dated as of the 31st day of July, 1997 (the
"Prior Agreement"), is hereby amended and restated on January 21, 1998,
effective as set forth below.
The Company entered into the Prior Agreement because the Board of
Directors of the Company (the "Board") had determined that it was in the best
interests of the Company and its shareholders to assure that the Company have
the continued dedication of the Executive, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company.
The Board believed it was imperative to diminish the inevitable distraction of
the Executive by virtue of the personal uncertainties and risks created by a
pending or threatened Change of Control and to encourage the Executive's full
attention and dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide the Executive with
compensation and benefits arrangements upon a Change of Control which would
ensure that the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other corporations. Therefore,
in order to accomplish these objectives, the Board caused the Company to enter
into the Prior Agreement.
The Company has now entered into a Second Amended and Restated
Agreement and Plan of Merger, dated as of November 14, 1997, between the Company
and FSI Merger Corp. (as amended, the "Transaction Agreement"), pursuant to
which FSI Merger Corp. will be merged with and into the Company (the
"Transaction"), and the Company and the Executive desire to amend the terms and
conditions of employment of the Executive following the Transaction.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effect of Agreement. This amended and restated agreement (this
"Agreement") shall take effect if and only if the Transaction is consummated
(the date of such consummation being hereafter referred to as the "Effective
Date"), whereupon it shall replace the Prior Agreement. If the Transaction is
never consummated, the Prior Agreement shall remain in effect without regard to
this Agreement.
<PAGE>
2. Change of Control. The Company and the Executive acknowledge that
the Transaction will constitute a "Change of Control" within the meaning of the
Prior Agreement.
3. Employment Period. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the employ
of the Company subject to the terms and conditions of this Agreement, for the
Employment Period, as defined below. The Employment Period shall mean the period
commencing on the Effective Date and ending on the fifth anniversary of such
date, together with all extensions pursuant to the next sentence. As of the end
of each day during the Employment Period, unless either party hereto shall have
given the other party 30 days' advance notice that there shall be no further
extensions pursuant to this sentence (such notices, a "Notice of
Non-Extension"), the Employment Period shall be extended by an additional day,
so that the Employment Period always consists of five years.
4. Terms of Employment. (a) Position and Duties. (i) During the
Employment Period, (A) the Executive's position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities shall
be at least commensurate in all material respects with the most significant of
those held, exercised and assigned to the Executive at any time during the
120-day period immediately preceding the Effective Date and (B) the Executive's
services shall be performed at the location where the Executive was employed
immediately preceding the Effective Date or any office or location less than 25
miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote reasonable attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic, charitable,
governmental or religious boards or committees, (B) to manage or participate in
activities of General Chemical Group, Inc. and Latona Associates, Inc., in a
manner consistent with his current practice, (C) deliver lectures, fulfill
speaking engagements or teach at educational institutions, (D) participate in
political activities and fundraising and (E) manage personal investments, so
long as such activities do not significantly interfere with the performance of
the Executive's responsibilities as an employee of the Company in accordance
with this Agreement. It is expressly understood and
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agreed that to the extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of such activities
(or the conduct of activities similar in nature and scope thereto) subsequent to
the Effective Date shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the Company.
(b) Compensation. (i) Base Salary. During the Employment Period,
the Executive shall receive an annual base salary ("Annual Base Salary"), which
shall be paid at a monthly rate, at least equal to twelve times the highest
monthly base salary paid or payable, including any base salary which has been
earned but deferred, to the Executive by the Company in respect of the
twelve-month period immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Annual Base Salary shall be reviewed
no more than 12 months after the last salary increase awarded to the Executive
prior to the Effective Date and thereafter at least annually. Any increase in
Annual Base Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. Annual Base Salary shall not be reduced
after any such increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased. As used in this
Agreement, the term "affiliated companies" shall include any company controlled
by, controlling or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the
Executive shall be awarded, for each fiscal year ending during the Employment
Period, an annual bonus (the "Annual Bonus") in cash at least equal to
$475,000 (the "Required Bonus Amount"). Each such Annual Bonus shall be paid
no later than the end of the third month of the fiscal year next following
the fiscal year for which the Annual Bonus is awarded, unless the Executive
shall elect to defer the receipt of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans. During the Employment
Period, the Executive shall be entitled to participate in all incentive, savings
and retirement plans, practices, policies and programs applicable generally to
other peer executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Executive
with incentive opportunities (measured with respect to both regular and special
incentive opportunities, to the extent, if any, that such distinction is
applicable), savings opportunities and retirement benefit opportunities, in each
case, less favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for the Executive under
such plans, practices, policies and programs as in effect at any time during the
120-day period immediately
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preceding the Effective Date or if more favorable to the Executive, those
provided generally at any time after the Effective Date to other peer executives
of the Company and its affiliated companies.
(iv) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be eligible
for participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and
travel accident insurance plans and programs) to the extent applicable generally
to other peer executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Executive
with benefits which are less favorable, in the aggregate, than the most
favorable of such plans, practices, policies and programs in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided generally
at any time after the Effective Date to other peer executives of the Company and
its affiliated companies. Without limiting the generality of the foregoing, the
Company shall continue to make all required premium payments and fulfill its
other obligations under the split-dollar insurance agreement (the "Split-Dollar
Agreement") entered into by the Company and the Executive and effective as of
November 8, 1994.
(v) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the most favorable policies,
practices and procedures of the Company and its affiliated companies in effect
for the Executive at any time during the 120-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer executives of the
Company and its affiliated companies.
(vi) Fringe and Other Benefits. During the Employment Period, the
Executive shall be entitled to fringe and other benefits including, without
limitation, benefits payable under Executive's Split-Dollar Agreement, in
accordance with the most favorable plans, practices, programs and policies of
the Company in all respects and its affiliated companies in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally
at any time thereafter with respect to other peer executives of the Company
and its affiliated companies.
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(vii) Office and Support Staff. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistance, in
all respects equal to that provided to the Executive by the Company during the
120-day period immediately preceding the Effective Date or, if more favorable to
the Executive, as provided generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies.
(viii) Vacation. During the Employment Period, the Executive shall
be entitled to paid vacation in accordance with the plans, policies, programs
and practices of the Company in all respects and its affiliated companies as in
effect for the Executive during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally at
any time thereafter with respect to other peer executives of the Company and its
affiliated companies.
5. Termination of Employment. (a) Death or Disability. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period. If the Company determines in good faith that the Disability
of the Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to the Executive written
notice in accordance with Section 12(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
(b) Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due
to physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board or the Chief
Executive
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Officer of the Company which specifically identifies the manner
in which the Board or Chief Executive Officer believes that the
Executive has not substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to
the Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive other than for Good Reason, or by the Executive for Good Reason at any
time within 90 days after the Executive first has actual knowledge of the
occurrence of such Good Reason. For purposes of this Agreement, "Good Reason"
shall mean:
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or
any other action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive;
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(ii) any failure by the Company to comply with any of the
provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at any
office or location other than as provided in Section 4(a)(i)(B) hereof
or the Company's requiring the Executive to travel on Company business
to a substantially greater extent than required immediately prior to
the Effective Date;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this
Agreement;
(v) any delivery by the Company of a Notice of
Non-Extension; or
(vi) any failure by the Company to comply with and satisfy
Section 11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company
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for Cause, or by the Executive for Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein, as the case may be,
(ii) if the Executive's employment is terminated by the Company other than for
Cause or Disability, the date on which the Company notifies the Executive of
such termination, (iii) if the Executive's employment is terminated by the
Executive other than for Good Reason, the date on which the Executive notifies
the Company of such termination and (iv) if the Executive's employment is
terminated by reason of death or Disability, the date of death of the Executive
or the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination. (a) By Executive; Other
Than for Cause, Death or Disability. If, during the Employment Period, the
Company shall terminate the Executive's employment other than for Cause or
Disability or the Executive shall terminate employment for Good Reason or
without Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash within
30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (2) the
product of (x) the Required Bonus Amount and (y) a fraction, the
numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is 365
and (3) any compensation previously deferred by the Executive (together
with any accrued interest or earnings thereon) and any accrued vacation
pay, in each case to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), and (3) shall be hereinafter
referred to as the "Accrued Obligations"); and
B. the amount equal to the product of (1) five (three in the
case of termination by the Executive without Good Reason) and (2) the
sum of (x) the Executive's Annual Base Salary and (y) the Required
Bonus Amount; and
C. an amount equal to the difference between (a) the aggregate
benefit under the Company's qualified defined benefit retirement plans
(collectively, the "Retirement Plan") and any excess or supplemental
defined benefit retirement plans in which the Executive participates,
including without limitation the Company's Executive Retirement and
Savings Plan, (collectively, the "SERP") which the Executive would have
accrued (whether or not vested) if the Executive's employment had
continued for five years (three
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years in the case of termination by the Executive without Good Reason)
after the Date of Termination and (b) the actual vested benefit, if
any, of the Executive under the Retirement Plan and the SERP,
determined as of the Date of Termination (with the foregoing amounts to
be computed on an actuarial present value basis, based on the
assumption that the Executive's compensation in each of the five years
(three years in the case of termination by the Executive without Good
Reason) following such termination would have been that required by
Section 4(b)(i) and Section 4(b)(ii), and using actuarial assumptions
no less favorable to the Executive than the most favorable of those in
effect for purposes of computing benefit entitlements under the
Retirement Plan and the SERP at any time from the day before the
Effective Date) through the Date of Termination;
(ii) for five (three years in the case of termination by the
Executive without Good Reason) years after the Executive's Date of Termination,
or such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue all fringe and other
benefits to the Executive and/or the Executive's family at least equal to those
which would have been provided to them in accordance with the plans, programs,
practices and policies described in Section 4(b)(iv), (vi) and (vii) of this
Agreement if the Executive's employment had not been terminated (including
without limitation pursuant to the Split Dollar Agreement) or, if more favorable
to the Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies and their
families, provided, however, that if the Executive becomes reemployed with
another employer and is eligible to receive medical or other welfare benefits
under another employer-provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other plan
during such applicable period of eligibility, and for purposes of determining
eligibility (but not the time of commencement of benefits) of the Executive for
retiree benefits pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed until five years (three
years in the case of termination by the Executive without Good Reason) after the
Date of Termination and to have retired on the last day of such period;
(iii) the Company shall, at its sole expense as incurred, provide
the Executive with outplacement services the scope and provider of which shall
be selected by the Executive in the Executive's sole discretion (but the total
cost thereof shall not exceed $50,000); and
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(iv) for a period of five years following the Executive's
termination, to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits required to
be paid or provided or which the Executive is eligible to receive under any
plan, program, policy or practice or contract or agreement of the Company and
its affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
(b) Death. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits. Accrued Obligations shall be paid
to the Executive's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this Section 6(b) shall
include, without limitation, and the Executive's estate and/or beneficiaries
shall be entitled to receive, benefits at least equal to the most favorable
benefits provided by the Company and affiliated companies to the estates and
beneficiaries of peer executives of the Company and such affiliated companies
under such plans, programs, practices and policies relating to death benefits,
if any, as in effect with respect to other peer executives and their
beneficiaries at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive's estate and/or the
Executive's beneficiaries, as in effect on the date of the Executive's death
with respect to other peer executives of the Company and its affiliated
companies and their beneficiaries.
(c) Disability. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits.
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 6(c) shall
include, and the Executive shall be entitled after the Disability Effective Date
to receive, disability and other benefits at least equal to the most favorable
of those generally provided by the Company and its affiliated companies to
disabled executives and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if any, as in effect
generally with respect to other peer executives and their families at any time
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during the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive and/or the Executive's family, as in effect at any
time thereafter generally with respect to other peer executives of the Company
and its affiliated companies and their families.
(d) Cause. If the Executive's employment shall be terminated for
Cause during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive (x) the Annual Base Salary through the Date of Termination, (y) the
amount of any compensation previously deferred by the Executive, and (z) Other
Benefits, in each case to the extent theretofore unpaid. In such case, all
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor, subject to Section
12(f), shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company or any of
its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
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8. Full Settlement; Legal Fees. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and except as
specifically provided in Section 6(a)(ii), such amounts shall not be reduced
whether or not the Executive obtains other employment. The Company agrees to pay
promptly as incurred, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability or entitlement under, any
provision of this Agreement or any guarantee of performance thereof (whether
such contest is between the Company and the Executive or between either of them
and any third party, and including as a result of any contest by the Executive
about the amount of any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal rate ("Applicable
Federal Rate") provided for in Section 7872(f)(2)(A) of the Internal Revenue
Code of 1986, as amended (the "Code").
9. Certain Additional Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Company to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 9) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or any
corresponding provisions of state or local tax laws, or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income or employment taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, including
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whether and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such determination,
shall be made by Deloitte & Touche LLP or such other certified public accounting
firm as may be designated by the Executive (the "Accounting Firm"), which shall
provide detailed supporting calculations both to the Company and the Executive
within 15 business days of the receipt of notice from the Executive that there
has been a Payment, or such earlier time as is requested by the Company. In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 9, shall be paid by the Company to the Executive within five days
of the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 9(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment, plus interest at the Applicable
Federal Rate, shall be promptly paid by the Company to or for the benefit of the
Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which the Executive gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
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(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively
to contest such claim, and
(iv) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income or employment tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 9(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and sue for a refund, the Company shall advance the
amount of such payment to the Executive, on an after-tax basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 9(c), the Executive becomes entitled to receive
any refund with respect to
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such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 9(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
10. Confidential Information; Noncompetition. (a) The Executive shall
hold in a fiduciary capacity for the benefit of the Company all secret,
proprietary or confidential information, knowledge or data relating to the
Company or any of its affiliated companies, and their respective businesses,
which shall have been obtained by the Executive during the Executive's
employment by the Company or any of its affiliated companies. During the period
the Executive is employed with the Company, and for a period of 24 months after
termination of the Executive's employment with the Company, the Executive shall
not, without the prior written consent of the Company or as may otherwise be
required by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
The restrictions set forth in this Section 10 will not apply to information
which is generally known to the public or in the trade, unless such knowledge
results from an unauthorized disclosure by the Executive or representatives of
the Executive in violation of this Agreement. This exception will not affect the
application of any other provisions of this Agreement to such information in
accordance with the terms of such provision. All documents and tangible things
embodying or containing confidential information are the Company's exclusive
property. The Executive will protect the confidentiality of their content and
will return all copies, facsimiles and specimens of them and any other form of
confidential information in the Executive's possession, custody or control to
the Company before leaving the employment with the Company.
(b) In consideration of the Put Right (as defined in Section 13
below), during the Executive's employment with the Company, and for a period of
36 months thereafter, the Executive shall not, directly or indirectly, engage,
participate or invest in or be employed by any business which is engaged in the
scientific and clinical laboratory research distribution business in the United
States. The foregoing restriction shall apply regardless of the capacity in
which the Executive engages or
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engaged, participates or participated, or invests or invested in or is or was
employed by a given business, whether as owner, partner, shareholder,
consultant, agent, employee, co-venturer or otherwise. The provisions of this
Section 10(b) shall not prevent the Executive from acquiring or holding publicly
traded stock or other publicly traded securities of a business, so long as the
Executive's ownership does not exceed 2 percent of the outstanding securities of
such company of the same class as those held by the Executive or from engaging
in any activity or having an ownership interest in any business that is reviewed
by the Board of Directors. The Executive understands that the restrictions set
out in this Section 10(b) are intended to protect the Company's interest in its
secret, proprietary or confidential information and established customer
relationships and goodwill, and agrees that such restrictions are reasonable and
appropriate for this purpose.
(c) The Executive agrees that it would be difficult to measure any
damages caused to the Company which might result from any breach by the
Executive of the promises set forth in this Agreement, and that in any event
money damages would be an inadequate remedy for any such breach. Accordingly,
the Executive agrees that in the case of breach, or proposed breach, of any
portion of this Agreement, the Company shall be entitled, in addition to all
other remedies that it may have, to an injunction or other appropriate equitable
relief to restrain any such breach without showing or proving any actual damage
to the Company. However, in no event shall an asserted violation of the
provisions of this Section 10 constitute a basis for deferring or withholding
any amounts otherwise payable to the Executive under this Agreement.
11. Successors. (a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business
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and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12. Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Paul M. Montrone
Great Hill
Hampton Falls, NH 03844
If to the Company:
Attention: General Counsel
Fisher Scientific International Inc.
Liberty Lane
Hampton, NH 03842
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof or any other provision of this Agreement or
the failure to assert any right the Executive or the Company may have hereunder,
including, without limitation, the right of the Executive to terminate
employment
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for Good Reason pursuant to Section 5(c)(i)-(v) of this Agreement,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the Executive
and the Company, the employment of the Executive by the Company is "at will"
and, prior to the Effective Date, the Executive's employment may be terminated
by either the Executive or the Company at any time prior to the Effective Date,
in which case the Executive shall have no further rights under this Agreement.
From and after the Effective Date this Agreement shall supersede any other
agreement between the parties with respect to the subject matter hereof;
provided, that this Agreement shall not supersede the Split Dollar Agreement,
nor shall it amend the Split Dollar Agreement except to the extent specifically
provided in Section 6(a) and in Section 12(g) below.
(g) The second sentence of Section 4(b) of the Split Dollar Agreement
is hereby amended to read in its entirety as follows: "A 'change in control' is
deemed to occur upon the occurrence of a 'Change of Control' as defined in
Section 2 of the Change-of-Control Employment Agreement dated as of July 31,
1997 between the Employer and Employee."
13. Put/Call Right. At any time following the Effective Date, the
Executive and/or any Permitted Transferee (as defined below) shall have the
right (the "Put Right"), exercisable by delivery of a written notice (the "Put
Notice") to the Company, to require the Company to purchase all, but not less
than all, of the 51,667 Executive Performance Options (the "Put Options")
granted to the Executive pursuant to the Fisher Scientific International Inc.
1998 Equity and Incentive Plan (the "1998 Option Plan"), for an aggregate
purchase price (the "Put Price") of $5,000,000 in cash, subject to the
provisions of this Section 13. Following receipt of the Put Notice, the Company
shall be required to pay the Put Price to the Executive or the Permitted
Transferee, as applicable, upon the second business day following the first
anniversary of the date the Put Notice is received by the Company; provided,
that if on such second business day, the Executive is a "covered employee" whose
compensation is subject to the limitation on deductibility imposed by Section
162(m) of the Code, such payment shall be delayed until the first date on which
the Executive is no longer such a "covered employee." For purpose of this
Section 13, "Permitted Transferee" shall mean any heir, executor, administrator,
testamentary trustee, legatee or beneficiary of the Executive and any party who
is a legitimate transferee of the Put Options in accordance with the instruments
governing their
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transfer. The Company shall pay the Executive interest on the
$5,000,000 cash payment due to the Executive following exercise of the Put Right
at a rate equal to the prime rate published by The Chase Manhattan Bank on the
business day nearest to the date on which the Put Right is exercised, compounded
daily. Such interest shall accrue from the date of exercise until the date the
$5,000,000 payment is made to the Executive, and shall be paid to the Executive
concurrently with such $5,000,000 payment.
14. Upon termination of the Executive's employment with the Company for
any reason (a "Call Event"), the Company shall have the right (the "Call
Right"), exercisable by delivery of a written notice (the "Call Notice") to the
Executive and any Permitted Transferees who then own any Put Options within a
period of 180 days after the date of occurrence of the Call Event (subject to
extension for up to three months in the event the Company is legally prohibited
or contractually prohibited, by virtue of its debt or other obligations, from
exercising its Call Rights) (the "Call Notice Period"), to require the Executive
and any such Permitted Transferees to sell all, but not less than all, of the
Put Options owned by such Management Investor and such Permitted Transferees on
the date of occurrence of the Call Event at an aggregate price equal to the Put
Price, allocated among the Executive and such Permitted Transferees (if any) in
the same proportions as their ownership of the Put Options. Upon receipt of such
notice the Executive and any such Permitted Transferees shall sell such Put
Options, subject to the terms hereof.
15. The closing of the acquisition by the Company of Put Options
following exercise of the Put Right or the Call Right shall take place at the
principal office of the Company on the tenth business day after the date of the
Put Notice or the Call Notice. At such closing, the Company shall pay the Put
Price by wire transfer to the account or accounts designated by the Executive or
Permitted Transferee, as applicable, in writing to Company or, if the Executive
or Permitted Transferee, as applicable, fails to designate any such account, the
Company shall deliver a certified check or checks in the amount of the
applicable Put Price to the Executive or such Permitted Transferee, as
applicable, in each case against delivery of duly endorsed certificates
representing such Put Options (to the extent issued in certificated form).
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
/s/ PAUL M. MONTRONE
-------------------------------------
Paul M. Montrone
FISHER SCIENTIFIC INTERNATIONAL, INC.
By /s/ TODD M. DUCHENE
----------------------------
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
The Change-of-Control Employment Agreement by and between Fisher Scientific
International, Inc., a Delaware corporation (the "Company") and Paul M. Meister
(the "Executive"), dated as of the 31st day of July, 1997 (the "Prior
Agreement"), is hereby amended and restated on January 21, 1998, effective as
set forth below.
The Company entered into the Prior Agreement because the Board of Directors
of the Company (the "Board") had determined that it was in the best interests of
the Company and its shareholders to assure that the Company have the continued
dedication of the Executive, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below) of the Company. The Board
believed it was imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks created by a pending
or threatened Change of Control and to encourage the Executive's full attention
and dedication to the Company currently and in the event of any threatened or
pending Change of Control, and to provide the Executive with compensation and
benefits arrangements upon a Change of Control which would ensure that the
compensation and benefits expectations of the Executive will be satisfied and
which are competitive with those of other corporations. Therefore, in order to
accomplish these objectives, the Board caused the Company to enter into the
Prior Agreement.
The Company has now entered into a Second Amended and Restated Agreement
and Plan of Merger, dated as of November 14, 1997, between the Company and FSI
Merger Corp. ((as amended) the "Transaction Agreement"), pursuant to which FSI
Merger Corp. will be merged with and into the Company (the "Transaction"), and
the Company and the Executive desire to amend the terms and conditions of
employment of the Executive following the Transaction.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effect of Agreement. This amended and restated agreement (this
"Agreement") shall take effect if and only if the Transaction is consummated
(the date of consummation being hereafter referred to as the "Effective Date"),
whereupon it shall replace the Prior Agreement. If the Transaction is never
consummated, the Prior Agreement shall remain in effect without regard to this
Agreement.
2. Change of Control. The Company and the Executive acknowledge that the
Transaction will constitute a "Change of Control" within the meaning of the
Prior Agreement.
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3. Employment Period. The Company hereby agrees to continue the Executive
in its employ, and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the
Employment Period, as defined below. The Employment Period shall mean the period
commencing on the Effective Date and ending on the fifth anniversary of such
date, together with all extensions pursuant to the next sentence. As of the end
of each day during the Employment Period, unless either party hereto shall have
given the other party 30 days' advance notice that there shall be no further
extensions pursuant to this sentence (such notice, a "Notice of Non-Extension"),
the Employment Period shall be extended by an additional day, so that the
Employment Period always consists of five years.
4. Terms of Employment. (a) Position and Duties. (i) During the Employment
Period, (A) the Executive's position (including status, offices, titles and
reporting requirements), authority, duties and responsibilities shall be at
least commensurate in all material respects with the most significant of those
held, exercised and assigned to the Executive at any time during the 120-day
period immediately preceding the Effective Date and (B) the Executive's services
shall be performed at the location where the Executive was employed immediately
preceding the Effective Date or any office or location less than 25 miles from
such location.
(ii) During the Employment Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive agrees to
devote reasonable attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic, charitable,
governmental or religious boards or committees, (B) to manage or participate in
activities of General Chemical Group, Inc. and Latona Associates, Inc., in a
manner consistent with his current practice, (C) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (D) manage
personal investments, so long as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been conducted by the Executive
prior to the Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with
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the performance of the Executive's responsibilities to the Company.
(b) Compensation. (i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary"), which
shall be paid at a monthly rate, at least equal to twelve times the highest
monthly base salary paid or payable, including any base salary which has been
earned but deferred, to the Executive by the Company in respect of the
twelve-month period immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Annual Base Salary shall be reviewed
no more than 12 months after the last salary increase awarded to the Executive
prior to the Effective Date and thereafter at least annually. Any increase in
Annual Base Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. Annual Base Salary shall not be reduced
after any such increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased. As used in this
Agreement, the term "affiliated companies" shall include any company controlled
by, controlling or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the Executive
shall be awarded, for each fiscal year ending during the Employment Period, an
annual bonus (the "Annual Bonus") in cash at least equal to $315,000 (the
"Required Bonus Amount"). Each such Annual Bonus shall be paid no later than the
end of the third month of the fiscal year next following the fiscal year for
which the Annual Bonus is awarded, unless the Executive shall elect to defer the
receipt of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans. During the Employment
Period, the Executive shall be entitled to participate in all incentive, savings
and retirement plans, practices, policies and programs applicable generally to
other peer executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Executive
with incentive opportunities (measured with respect to both regular and special
incentive opportunities, to the extent, if any, that such distinction is
applicable), savings opportunities and retirement benefit opportunities, in each
case, less favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for the Executive under
such plans, practices, policies and programs as in effect at any time during the
120-day period immediately preceding the Effective Date or if more favorable to
the Executive, those provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated companies.
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(iv) Welfare Benefit Plans. During the Employment Period, the Executive
and/or the Executive's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and
travel accident insurance plans and programs) to the extent applicable generally
to other peer executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Executive
with benefits which are less favorable, in the aggregate, than the most
favorable of such plans, practices, policies and programs in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided generally
at any time after the Effective Date to other peer executives of the Company and
its affiliated companies. Without limiting the generality of the foregoing, the
Company shall continue to make all required premium payments and fulfill its
other obligations under the split-dollar insurance agreement (the "Split-Dollar
Agreement") entered into by the Company and the Executive and effective as of
February 28, 1995.
(v) Expenses. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the most favorable policies, practices and
procedures of the Company and its affiliated companies in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally at
any time thereafter with respect to other peer executives of the Company and its
affiliated companies.
(vi) Fringe and Other Benefits. During the Employment Period, the
Executive shall be entitled to fringe and other benefits including, without
limitation, benefits payable under Executive's Split-Dollar Agreement, in
accordance with the most favorable plans, practices, programs and policies of
the Company and its affiliated companies in effect for the Executive at any time
during the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated companies.
(vii) Office and Support Staff. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistance, in
all respects equal to that provided to the Executive by the Company during the
120-day
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period immediately preceding the Effective Date or, if more favorable to the
Executive, as provided generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies.
(viii) Vacation. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the plans, policies, programs and
practices of the Company in all respects and its affiliated companies as in
effect for the Executive during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally at
any time thereafter with respect to other peer executives of the Company and its
affiliated companies.
5. Termination of Employment. (a) Death or Disability. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period. If the Company determines in good faith that the Disability
of the Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to the Executive written
notice in accordance with Section 12(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
(b) Cause. The Company may terminate the Executive's employment during
the Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one of
its affiliates (other than any such failure resulting from incapacity
due to physical or mental illness), after a written demand for
substantial performance is delivered to the Executive by the Board or
the Chief Executive Officer of the Company which specifically
identifies the manner in which the Board or Chief Executive Officer
believes that the Executive has not substantially performed the
Executive's duties, or
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(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to
the Company.
For purposes of this provision, no act or failure to act, on the part of
the Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason at any time within 90 days after the Executive first
has actual knowledge of the occurrence of such Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or
any other action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
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(iii) the Company's requiring the Executive to be based at any
office or location other than as provided in Section 4(a)(i)(B) hereof
or the Company's requiring the Executive to travel on Company business
to a substantially greater extent than required immediately prior to
the Effective Date;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this
Agreement;
(v) delivery by the Company of a Notice of Non-Extension; or
(vi) any failure by the Company to comply with and satisfy
Section 11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause, or by
the Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 12(b) of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the Executive or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the Executive's
employment is terminated by the Company for Cause, or by the Executive for Good
Reason, the date of receipt of the Notice of Termination or any later date
specified therein, as the case may be, (ii) if the Executive's employment is
terminated by the Company other than for Cause or Disability, the date on which
the Company notifies the Executive of such termination and (iii) if the
Executive's employment is terminated by
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reason of death or Disability, the date of death of the Executive or the
Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination. (a) Good Reason; Other Than
for Cause, Death or Disability. If, during the Employment Period, the Company
shall terminate the Executive's employment other than for Cause or Disability or
the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash within
30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (2) the
product of (x) the Required Bonus Amount and (y) a fraction, the
numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is 365
and (3) any compensation previously deferred by the Executive (together
with any accrued interest or earnings thereon) and any accrued vacation
pay, in each case to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), and (3) shall be hereinafter
referred to as the "Accrued Obligations"); and
B. the amount equal to the product of (1) five and (2) the sum
of (x) the Executive's Annual Base Salary and (y) the Required Bonus
Amount; and
C. an amount equal to the difference between (a) the aggregate
benefit under the Company's qualified defined benefit retirement plans
(collectively, the "Retirement Plan") and any excess or supplemental
defined benefit retirement plans in which the Executive participates,
including without limitation the Company's Executive Retirement and
Savings Plan, (collectively, the "SERP") which the Executive would have
accrued (whether or not vested) if the Executive's employment had
continued for five years after the Date of Termination and (b) the
actual vested benefit, if any, of the Executive under the Retirement
Plan and the SERP, determined as of the Date of Termination (with the
foregoing amounts to be computed on an actuarial present value basis,
based on the assumption that the Executive's compensation in each of
the five years following such termination would have been that required
by Section 4(b)(i) and Section 4(b)(ii), and using actuarial
assumptions no less favorable to the Executive than the most favorable
of those in effect for purposes of computing benefit entitlements under
the Retirement Plan and the SERP at any time from the
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day before the Effective Date) through the Date of Termination;
(ii) for five years after the Executive's Date of Termination, or such
longer period as may be provided by the terms of the appropriate plan, program,
practice or policy, the Company shall continue benefits to the Executive and/or
the Executive's family at least equal to those which would have been provided to
them in accordance with the plans, programs, practices and policies described in
Section 4(b)(iv) of this Agreement if the Executive's employment had not been
terminated (including without limitation pursuant to the Split Dollar Agreement)
or, if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies and their families, provided, however, that if the
Executive becomes reemployed with another employer and is eligible to receive
medical or other welfare benefits under another employer-provided plan, the
medical and other welfare benefits described herein shall be secondary to those
provided under such other plan during such applicable period of eligibility, and
for purposes of determining eligibility (but not the time of commencement of
benefits) of the Executive for retiree benefits pursuant to such plans,
practices, programs and policies, the Executive shall be considered to have
remained employed until five years after the Date of Termination and to have
retired on the last day of such period;
(iii) the Company shall, at its sole expense as incurred, provide the
Executive with outplacement services the scope and provider of which shall be
selected by the Executive in the Executive's sole discretion (but the total cost
thereof shall not exceed $50,000); and
(iv) for a period of five years following the Executive's termination,
to the extent not theretofore paid or provided, the Company shall timely pay or
provide to the Executive any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under any plan, program,
policy or practice or contract or agreement of the Company and its affiliated
companies (such other amounts and benefits shall be hereinafter referred to as
the "Other Benefits").
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. Accrued Obligations shall be paid to the
Executive's estate or beneficiary, as
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applicable, in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 6(b) shall include, without limitation, and the
Executive's estate and/or beneficiaries shall be entitled to receive, benefits
at least equal to the most favorable benefits provided by the Company and
affiliated companies to the estates and beneficiaries of peer executives of the
Company and such affiliated companies under such plans, programs, practices and
policies relating to death benefits, if any, as in effect with respect to other
peer executives and their beneficiaries at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive's estate and/or the Executive's beneficiaries, as in effect on the
date of the Executive's death with respect to other peer executives of the
Company and its affiliated companies and their beneficiaries.
(c) Disability. If the Executive's employment is terminated by reason of
the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits.
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 6(c) shall
include, and the Executive shall be entitled after the Disability Effective Date
to receive, disability and other benefits at least equal to the most favorable
of those generally provided by the Company and its affiliated companies to
disabled executives and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if any, as in effect
generally with respect to other peer executives and their families at any time
during the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive and/or the Executive's family, as in effect at any
time thereafter generally with respect to other peer executives of the Company
and its affiliated companies and their families.
(d) Cause; Other than for Good Reason. If the Executive's employment
shall be terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Executive other than the obligation
to pay to the Executive (x) the Annual Base Salary through the Date of
Termination, (y) the amount of any compensation previously deferred by the
Executive, and (z) Other Benefits, in each case to the extent theretofore
unpaid. If the Executive voluntarily terminates employment during the Employment
Period, excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for Accrued Obligations
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and the timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
and for which the Executive may qualify, nor, subject to Section 12(f), shall
anything herein limit or otherwise affect such rights as the Executive may have
under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
8. Full Settlement; Legal Fees. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and except as
specifically provided in Section 6(a)(ii), such amounts shall not be reduced
whether or not the Executive obtains other employment. The Company agrees to pay
promptly as incurred, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability or entitlement under, any
provision of this Agreement or any guarantee of performance thereof (whether
such contest is between the Company and the Executive or between either of them
and any third party, and including as a result of any contest by the Executive
about the amount of any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal rate ("Applicable
Federal Rate") provided for in Section 7872(f)(2)(A) of the Internal Revenue
Code of 1986, as amended (the "Code").
9. Certain Additional Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Company to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard
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to any additional payments required under this Section 9) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or any
corresponding provisions of state or local tax laws, or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income or employment taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) Subject to the provisions of Section 9(c), all determinations required
to be made under this Section 9, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by Deloitte & Touche
LLP or such other certified public accounting firm as may be designated by the
Executive (the "Accounting Firm"), which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change of Control, the Executive shall appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by
the Company to the Executive within five days of the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be binding
upon the Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 9(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment, plus interest at the Applicable Federal Rate, shall
be promptly paid by the Company to or for the benefit of the Executive.
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(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which the Executive gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income or employment tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 9(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and sue for a refund, the Company shall advance the
amount of such payment to the
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Executive, on an after-tax basis and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 9(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 9(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
10. Confidential Information; Noncompetition. (a) The Executive shall hold
in a fiduciary capacity for the benefit of the Company all secret, proprietary
or confidential information, knowledge or data relating to the Company or any of
its affiliated companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive's employment by the Company or
any of its affiliated companies. During the period the Executive is employed
with the Company, and for a period of 24 months after termination of the
Executive's employment with the Company, the Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
legal process, communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. The restrictions set
forth in this Section 10 will not apply to information which is generally known
to the public or in the trade, unless such knowledge results from an
unauthorized disclosure by the Executive or representatives of the Executive in
violation of this Agreement. This exception will not affect the application of
any other provisions of this
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Agreement to such information in accordance with the terms of such provision.
All documents and tangible things embodying or containing confidential
information are the Company's exclusive property. The Executive will protect the
confidentiality of their content and will return all copies, facsimiles and
specimens of them and any other form of confidential information in the
Executive's possession, custody or control to the Company before leaving the
employment with the Company.
(b) In consideration of the Put Right (as defined in Section 13 below),
during the Executive's employment with the Company, and for a period of 36
months thereafter, the Executive shall not, directly or indirectly, engage,
participate or invest in or be employed by any business which is engaged in the
scientific and clinical laboratory research distribution business in the United
States. The foregoing restriction shall apply regardless of the capacity in
which the Executive engages or engaged, participates or participated, or invests
or invested in or is or was employed by a given business, whether as owner,
partner, shareholder, consultant, agent, employee, co-venturer or otherwise. The
provisions of this Section 10(b) shall not prevent the Executive from acquiring
or holding publicly traded stock or other publicly traded securities of a
business, so long as the Executive's ownership does not exceed 2 percent of the
outstanding securities of such company of the same class as those held by the
Executive or from engaging in any activity or having an ownership interest in
any business that is reviewed by the Board of Directors. The Executive
understands that the restrictions set out in this Section 10(b) are intended to
protect the Company's interest in its secret, proprietary or confidential
information and established customer relationships and goodwill, and agrees that
such restrictions are reasonable and appropriate for this purpose.
(c) The Executive agrees that it would be difficult to measure any damages
caused to the Company which might result from any breach by the Executive of the
promises set forth in this Agreement, and that in any event money damages would
be an inadequate remedy for any such breach. Accordingly, the Executive agrees
that in the case of breach, or proposed breach, of any portion of this
Agreement, the Company shall be entitled, in addition to all other remedies that
it may have, to an injunction or other appropriate equitable relief to restrain
any such breach without showing or proving any actual damage to the Company.
However, in no event shall an asserted violation of the provisions of this
Section 10 constitute a basis for deferring or withholding any amounts otherwise
payable to the Executive under this Agreement.
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<PAGE>
11. Successors. (a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
12. Miscellaneous. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Paul M. Meister
18 Shiprock Road
N. Hampton, NH 03862
If to the Company:
Attention: General Counsel
Fisher Scientific International Inc.
Liberty Lane
Hampton, NH 03842
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications
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<PAGE>
shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof or any other provision of this Agreement or
the failure to assert any right the Executive or the Company may have hereunder,
including, without limitation, the right of the Executive to terminate
employment for Good Reason pursuant to Section 5(c)(i)-(v) of this Agreement,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) The Executive and the Company acknowledge that, except as may otherwise
be provided under any other written agreement between the Executive and the
Company, the employment of the Executive by the Company is "at will" and, prior
to the Effective Date, the Executive's employment may be terminated by either
the Executive or the Company at any time prior to the Effective Date, in which
case the Executive shall have no further rights under this Agreement. From and
after the Effective Date this Agreement shall supersede any other agreement
between the parties with respect to the subject matter hereof; provided, that
this Agreement shall not supersede the Split Dollar Agreement, nor shall it
amend the Split Dollar Agreement except to the extent specifically provided in
Section 6(a) and Section 12(g) below.
(g) The second sentence of Section 4(b) of the Split Dollar Agreement is
hereby amended to read in its entirety as follows: "A 'change in control' is
deemed to occur upon the occurrence of a 'Change of Control' as defined in
Section 2 of the Change-of-Control Employment Agreement dated as of July 31,
1997 between the Employer and Employee."
13. Put/Call Right. At any time following the Effective Date, the Executive
and/or any Permitted Transferee (as defined below) shall have the right (the
"Put Right"), exercisable by delivery of a written notice (the "Put Notice") to
the Company, to require the Company to purchase all, but not less than all, of
the 51,666 Executive Performance Options (the "Put Options") granted to the
Executive pursuant to the Fisher Scientific
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International Inc. 1998 Equity and Incentive Plan (the "1998 Option Plan"), for
an aggregate purchase price (the "Put Price") of $5,000,000 in cash, subject to
the provisions of this Section 13. Following receipt of the Put Notice, the
Company shall be required to pay the Put Price to the Executive or the Permitted
Transferee, as applicable, upon the second business day following the first
anniversary of the date the Put Notice is received by the Company; provided,
that if on such second business day, the Executive is a "covered employee" whose
compensation is subject to the limitation on deductibility imposed by Section
162(m) of the Code, such payment shall be delayed until the first date on which
the Executive is no longer such a "covered employee." For purpose of this
Section 13, "Permitted Transferee" shall mean any heir, executor, administrator,
testamentary trustee, legatee or beneficiary of the Executive and any party who
is a legitimate transferee of the Put Options in accordance with the instruments
governing their transfer. The Company shall pay the Executive interest on the
$5,000,000 cash payment due to the Executive following exercise of the Put Right
at a rate equal to the prime rate published by The Chase Manhattan Bank on the
business day nearest to the date on which the Put Right is exercised, compounded
daily. Such interest shall accrue from the date of exercise until the date the
$5,000,000 payment is made to the Executive, and shall be paid to the Executive
concurrently with such $5,000,000 payment.
14. Upon termination of the Executive's employment with the Company for any
reason (a "Call Event"), the Company shall have the right (the "Call Right"),
exercisable by delivery of a written notice (the "Call Notice") to the Executive
and any Permitted Transferees who then own any Put Options within a period of
180 days after the date of occurrence of the Call Event (subject to extension
for up to three months in the event the Company is legally prohibited or
contractually prohibited, by virtue of its debt or other obligations, from
exercising its Call Rights) (the "Call Notice Period"), to require the Executive
and any such Permitted Transferees to sell all, but not less than all, of the
Put Options owned by such Management Investor and such Permitted Transferees on
the date of occurrence of the Call Event at an aggregate price equal to the Put
Price, allocated among the Executive and such Permitted Transferees (if any) in
the same proportions as their ownership of the Put Options. Upon receipt of such
notice the Executive and any such Permitted Transferees shall sell such Put
Options, subject to the terms hereof.
15. The closing of the acquisition by the Company of Put Options following
exercise of the Put Right or the Call Right shall take place at the principal
office of the Company on the tenth business day after the date of the Put Notice
or the Call
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<PAGE>
Notice. At such closing, the Company shall pay the Put Price by wire transfer to
the account or accounts designated by the Executive or Permitted Transferee, as
applicable, in writing to the Company or, if the Executive or Permitted
Transferee, as applicable, fails to designate any such account, the Company
shall deliver a certified check or checks in the amount of the applicable Put
Price to the Executive or such Permitted Transferee, as applicable, in each
case, against delivery of duly endorsed certificates representing such Put
Options (to the extent issued in certificated form).
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<PAGE>
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
/s/ PAUL M. MEISTER
-----------------------------------
Paul M. Meister
FISHER SCIENTIFIC INTERNATIONAL, INC.
By /s/ TODD M. DUCHENE
--------------------------------
-20-
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<PAGE>
FISHER SCIENTIFIC INTERNATIONAL INC.
1998 EQUITY AND INCENTIVE PLAN
<PAGE>
FISHER SCIENTIFIC INTERNATIONAL INC.
1998 EQUITY AND INCENTIVE PLAN
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
1. Purpose; Types of Awards; Construction............................................1
2. Definitions.......................................................................1
3. Administration....................................................................5
4. Eligibility.......................................................................6
5. Stock Subject to the Plan.........................................................7
6. Specific Terms of Awards..........................................................8
7. Change in Control Provisions.....................................................13
8. Loan Provisions..................................................................14
9. General Provisions...............................................................14
</TABLE>
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FISHER SCIENTIFIC INTERNATIONAL INC.
1998 EQUITY AND INCENTIVE PLAN
1. Purpose; Types of Awards; Construction Purpose
The purposes of the 1998 Equity and Incentive Plan of Fisher Scientific
International Inc. (the "Plan") are to afford an incentive to selected employees
and independent contractors of Fisher Scientific International Inc. (the
"Company") or any Subsidiary or Affiliate that now exists or hereafter is
organized or acquired, to continue as employees or independent contractors, as
the case may be, to increase their efforts on behalf of the Company and to
promote the success of the Company's business. Pursuant to the Long-Term
Incentive Program described herein, there may be granted stock options
(including "incentive stock options" and "nonqualified stock options"), stock
appreciation rights (either in connection with stock options granted under the
Plan or independently of stock options), restricted stock, restricted stock
units, dividend equivalents and other long-term stock- or cash-based Awards, and
pursuant to the Annual Incentive Bonus Program described herein, there may be
granted short-term stock- or cash-based Awards. The Plan also provides the
authority to make loans to exercise stock options or otherwise purchase shares
of stock. The Plan is designed so that Awards granted hereunder intended to
comply with the requirements for "performance-based compensation" under Section
162(m) of the Code may comply with such requirements and insofar as may be
applicable to such Awards, the Plan shall be interpreted in a manner consistent
with such requirements.
2. Definitions
For purposes of the Plan, the following terms shall be defined as set forth
below:
(1) "Affiliate" means an affiliate of the Company, as defined in Rule
12b-2 promulgated under Section 12 of the Exchange Act.
(2) "Award" means any Option, SAR, Restricted Stock, Restricted Stock
Unit, Dividend Equivalent or Other Stock-Based Award or Other Cash-Based Award
granted under the Plan.
(3) "Award Agreement" means any written agreement, contract, or other
instrument or document evidencing an Award.
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(4) "Board" means the Board of Directors of the Company.
(5) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(6) "Committee" means the committee established by the Board to
administer the Plan, the composition of which shall at all times satisfy the
provisions Section 162(m) of the Code. Each member of the Committee shall be a
Non-Employee Director as defined in Rule 16b-3 under the Exchange Act.
(7) "Company" means Fisher Scientific International Inc., a corporation
organized under the laws of the State of Delaware, or any successor corporation.
(8) "Dividend Equivalent" means a right, granted to a Grantee under
Section 6(b)(v), to receive cash, Stock, or other property equal in value to
dividends paid with respect to a specified number of shares of Stock. Dividend
Equivalents may be awarded on a free-standing basis or in connection with
another Award, and may be paid currently or on a deferred basis.
(9) "Effective Date" means the date that the Plan was adopted by the
Board.
(10) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and as now or hereafter construed, interpreted and
applied by regulations, rulings and cases.
(11) "Fair Market Value" means, with respect to Stock or other
property, the fair market value of such Stock or other property determined by
such methods or procedures as shall be established from time to time by the
Committee. Unless otherwise determined by the Committee in good faith, the per
share Fair Market Value of Stock as of a particular date shall mean, if public
shareholders hold, as of the last day of the prior fiscal quarter, shares of
Stock worth $100,000,000 or more (as determined by the Committee), (i) the
closing sales price per share of Stock on the national securities exchange on
which the Stock is principally traded, for the last preceding date on which
there was a sale of such Stock on such exchange, or (ii) if the shares of Stock
are then traded in an over-the-counter market, the average of the closing bid
and asked prices for the shares
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<PAGE>
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 Stock worth more
than $100,000,000 or if the shares of Stock are not then listed on a national
securities exchange or traded in an over-the-counter market, such value as the
Committee, in its sole discretion, shall determine in good faith.
(12) "Grantee" means a person who, as a an employee of or independent
contractor with respect to the Company, a Subsidiary or an Affiliate, has been
granted an Award or Loan under the Plan.
(13) "ISO" means any Option intended to be and designated as an
incentive stock option within the meaning of Section 422 of the Code.
(14) "Loan" means the proceeds from the Company borrowed by a Grantee
under Section 8 of the Plan.
(15) "NQSO" means any Option that is designated as a nonqualified stock
option.
(16) "Option" means a right, granted to a Grantee under Section
6(b)(i), to purchase shares of Stock. An Option may be either an ISO or an NQSO;
provided that ISOs may be granted only to employees of the Company or a
Subsidiary.
(17) "Other Cash-Based Award" means an Award under the Annual Incentive
Bonus Program or the Long-Term Incentive Program, which Award is not denominated
or valued by reference to Stock, including an Award which is subject to the
attainment of Performance Goals or otherwise as permitted under the Plan.
(18) "Other Stock-Based Award" means an Award under the Long-Term
Incentive Program that is denominated or valued in whole or in part by reference
to Stock, including, but not limited to (1) restricted or unrestricted Stock
awarded subject to the attainment of Performance Goals or otherwise as permitted
under the Plan, and (2) a right granted to a Grantee to acquire Stock from the
Company for cash and/or the proceeds of a Loan.
3
<PAGE>
(19) "Performance Goals" means performance goals based on one or more
of the following criteria: (i) pre-tax income or after-tax income, (ii)
operating profit, (iii) return on equity, assets, capital or investment, (iv)
earnings or book value per share, (v) sales or revenues, (vi) operating
expenses, (vii) Stock price appreciation and (viii) implementation or completion
of critical projects or processes. Where applicable, the Performance Goals may
be expressed in terms of attaining a specified level of the particular criteria
or the attainment of a percentage increase or decrease in the particular
criteria, and may be applied to one or more of the Company, a Subsidiary or
Affiliate, or a division or strategic business unit of the Company, or may be
applied to the performance of the Company relative to a market index, a group of
other companies or a combination thereof, all as determined by the Committee.
The Performance Goals may include a threshold level of performance below which
no payment will be made (or no vesting will occur), levels of performance at
which specified payments will be made (or specified vesting will occur), and a
maximum level of performance above which no additional payment will be made (or
at which full vesting will occur). Each of the foregoing Performance Goals shall
be determined in accordance with generally accepted accounting principles and
shall be subject to certification by the Committee; provided that the Committee
shall have the authority to make equitable adjustments to the Performance Goals
in recognition of unusual or non-recurring events affecting the Company or any
Subsidiary or Affiliate or the financial statements of the Company or any
Subsidiary or Affiliate, in response to changes in applicable laws or
regulations, or to account for items of gain, loss or expense determined to be
extraordinary or unusual in nature or infrequent in occurrence or related to the
disposal of a segment of a business or related to a change in accounting
principles.
(20) "Plan" means this Fisher Scientific International Inc. 1998 Equity
and Incentive Plan, as amended from time to time.
(21) "Plan Year" means a calendar year.
(22) "Restricted Stock" means an Award of shares of Stock to a Grantee
under Section 6(b)(iii) that may be subject to certain transferability and other
restrictions and to a risk of forfeiture (including by reason of not satisfying
certain Performance Goals).
(23) "Restricted Stock Unit" means a right granted to a Grantee under
Section 6(b)(iv) to receive Stock or cash at the end of a specified deferral
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<PAGE>
period, which right may be conditioned on the satisfaction of certain
requirements (including the satisfaction of certain Performance Goals).
(24) "Rule 16b-3" means Rule 16b-3, as from time to time in effect
promulgated by the Securities and Exchange Commission under Section 16 of the
Exchange Act, including any successor to such Rule.
(25) "Stock" means shares of the common stock, par value $0.01 per
share, of the Company.
(26) "SAR" or "Stock Appreciation Right" means the right, granted to a
Grantee under Section 6(b)(ii), to be paid an amount measured by the
appreciation in the Fair Market Value of Stock from the date of grant to the
date of exercise of the right, with payment to be made in cash, Stock, or
property as specified in the Award or determined by the Committee.
(27) "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of granting of an Award,
each of the corporations (other than the last corporation in the unbroken chain)
owns stock possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in the chain.
3. Administration
At the discretion of the Board, the Plan shall be administered either (i)
by the Board or (ii) by the Committee. In the event the Board is the
administrator of the Plan, references herein to the Committee shall be deemed to
include the Board. The Board may from time to time appoint a member or members
of the Committee in substitution for or in addition to the member or members
then in office and may fill vacancies on the Committee however caused. The
Committee shall choose one of its members as Chairman and shall hold meetings at
such times and places as it shall deem advisable. A majority of the members of
the Committee shall constitute a quorum and any action may be taken by a
majority of those present and voting at any meeting.
Any action may also be taken without the necessity of a meeting by a
written instrument signed by a majority of the Committee. The decision of the
Committee as to all questions of interpretation and application of the Plan
shall be final, binding and conclusive on all persons. The Committee shall have
the
5
<PAGE>
authority in its discretion, subject to and not inconsistent with the express
provisions of the Plan, to administer the Plan and to exercise all the powers
and authorities either specifically granted to it under the Plan or necessary or
advisable in the administration of the Plan, including, without limitation, the
authority to grant Awards and make Loans; to determine the persons to whom and
the time or times at which Awards shall be granted and Loans shall be made; to
determine the type and number of Awards to be granted and the amount of any
Loan, the number of shares of Stock to which an Award may relate and the terms,
conditions, restrictions and Performance Goals relating to any Award or Loan; to
determine Performance Goals no later than such time as is required to ensure
that an underlying Award which is intended to comply with the requirements of
Section 162(m) of the Code so complies; to determine whether, to what extent,
and under what circumstances an Award may be settled, cancelled, forfeited,
exchanged, or surrendered; to make adjustments in the terms and conditions
(including Performance Goals) applicable to Awards; to designate Affiliates; to
construe and interpret the Plan and any Award or Loan; to prescribe, amend and
rescind rules and regulations relating to the Plan; to determine the terms and
provisions of the Award Agreements and any promissory note or agreement related
to any Loan (which need not be identical for each Grantee); and to make all
other determinations deemed necessary or advisable for the administration of the
Plan. The Committee may correct any defect or supply any omission or reconcile
any inconsistency in the Plan or in any or Award Agreement granted hereunder in
the manner and to the extent it shall deem expedient to carry the Plan into
effect and shall be the sole and final judge of such expediency. No Committee
member shall be liable for any action or determination made in good faith.
4. Eligibility
ISOs shall be granted only to key employees (including officers and
directors who are also employees) of the Company, its parent or any of its
Subsidiaries. All other Awards may be granted to officers, independent
contractors, key employees and non-employee directors of the Company or of any
of its Subsidiaries and Affiliates.
No ISO shall be granted to any employee of the Company, its parent or any
of its Subsidiaries if such employee owns, immediately prior to the grant of the
ISO, stock representing more than 10% of the voting power or more than 10% of
the value of all classes of stock of the Company or a parent or a Subsidiary,
unless the purchase price for the stock under such ISO shall be at least 110% of
its Fair
6
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Market Value at the time such ISO is granted and the ISO, by its terms, shall
not be exercisable more than five years from the date it is granted. In
determining the stock ownership under this paragraph, the provisions of Section
424(d) of the Code shall be controlling.
5. Stock Subject to the Plan
The maximum number of shares of Stock reserved for the grant or settlement
of Awards under the Plan shall be 2,000,000 subject to adjustment as provided
herein. No more than 1,000,000 shares of Stock may be awarded in respect of
stock-based awards (including Options, SARs, Restricted Stock and Restricted
Stock Units) to a single individual over the term of the Plan, which number
shall be subject to adjustment as provided herein. Determinations made in
respect of the limitation set forth in the preceding sentence shall be made in a
manner consistent with Section 162(m) of the Code. Such shares may, in whole or
in part, be authorized but unissued shares or shares that shall have been or may
be reacquired by the Company in the open market, in private transactions or
otherwise. If any shares subject to an Award are forfeited, cancelled, exchanged
or surrendered or if an Award otherwise terminates or expires without a
distribution of shares to the Grantee, the shares of stock with respect to such
Award shall, to the extent of any such forfeiture, cancellation, exchange,
surrender, termination or expiration, again be available for Awards under the
Plan. Upon the exercise of any Award granted in tandem with any other Awards or
awards, such related Awards or awards shall be cancelled to the extent of the
number of shares of Stock as to which the Award is exercised and,
notwithstanding the foregoing, such number of shares shall no longer be
available for Awards under the Plan.
Except as provided in an Award Agreement, in the event that the Committee
shall determine that any dividend or other distribution (whether in the form of
cash, Stock, or other property), recapitalization, Stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination, repurchase, or
share exchange, or other similar corporate transaction or event, affects the
Stock such that an adjustment is appropriate in order to prevent dilution or
enlargement of the rights of Grantees under the Plan, then the Committee shall
make such equitable changes or adjustments as it deems necessary or appropriate
to any or all of (i) the number and kind of shares of Stock or other property
(including cash) that may thereafter be issued in connection with Awards, (ii)
the number and kind of shares of Stock or other property (including cash) issued
or issuable in respect of outstanding Awards, (iii) the exercise price, grant
price, or purchase price relating to
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any Award; provided that, with respect to ISOs, such adjustment shall be made in
accordance with Section 424(h) of the Code, (iv) the Performance Goals and (v)
the individual limitations applicable to Awards.
6. Specific Terms of Awards
(1) General. The term of each Award shall be for such period as may be
determined by the Committee. Subject to the terms of the Plan and any applicable
Award Agreement, payments to be made by the Company or a Subsidiary or Affiliate
upon the grant, maturation, or exercise of an Award may be made in such forms as
the Committee shall determine at the date of grant or thereafter, including,
without limitation, cash, Stock, or other property, and may be made in a single
payment or transfer, in installments, or on a deferred basis. The Committee may
make rules relating to installment or deferred payments with respect to Awards,
including the rate of interest to be credited with respect to such payments. In
addition to the foregoing, the Committee may impose on any Award or the exercise
thereof, at the date of grant or thereafter, such additional terms and
conditions, not inconsistent with the provisions of the Plan, as the Committee
shall determine.
(2) Awards. The Committee is authorized to grant to Grantees the
following Awards, as deemed by the Committee to be consistent with the purposes
of the Plan. The Committee shall determine the terms and conditions of such
Awards at the date of grant or thereafter.
(1) Options. The Committee is authorized to grant Options to
Grantees on the following terms and conditions:
(1) Type of Award. The Award Agreement evidencing the
grant of an Option under the Plan shall designate the Option
as an ISO or an NQSO.
(2) Exercise Price. The exercise price per share of
Stock purchasable under an Option shall be determined by the
Committee, but in no event shall the exercise price of an NQSO
per share of Stock be less than 50% of the Fair Market Value
of a share of Stock as of the date of grant of such NQSO, and
in event shall the exercise price of an ISO per share of Stock
be less than the Fair Market Value of a share of Stock as of
the date of grant of such
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ISO. The purchase price of the Stock as to which an Option is
exercised shall be paid in full at the time of exercise;
payment may be made in cash, which may be paid by check, or
other instrument acceptable to the Company, or, with the
consent of the Committee, in shares of Stock, valued at the
Fair Market Value on the date of exercise, or if there were no
sales on such date, on the next preceding day on which there
were sales or (if permitted by the Committee and subject to
such terms and conditions as it may determine) by surrender of
outstanding Awards under the Plan. In addition, any amount
necessary to satisfy applicable federal, state or local tax
requirements shall be paid promptly upon notification of the
amount due. The Committee may permit such amount to be paid in
shares of Stock previously owned by the employee, or a portion
of the shares of Stock that otherwise would be distributed to
such employee upon exercise of the Option, or a combination of
cash and shares of such Stock.
(3) Term and Exercisability of Options. Options shall
be exercisable over the exercise period (which shall not
exceed ten years from the date of grant), at such times and
upon such conditions as the Committee may determine, as
reflected in the Award Agreement; provided that, the Committee
shall have the authority to -------- accelerate the
exercisability of any outstanding Option at such time and
under such circumstances as it, in its sole discretion, deems
appropriate. An Option may be exercised to the extent of any
or all full shares of Stock as to which the Option has become
exercisable, by giving written notice of such exercise to the
Committee or its designated agent. No partial exercise may be
made for less than one hundred (100) full shares of Stock.
(4) Termination of Employment, etc. Unless provided
to the contrary in the applicable Award Agreement:
(1) except as set forth herein or in II or
III below, an Option may not be exercised unless the
Grantee is then in the employ of, maintains a
independent contractor relationship with, or is a
director of, the Company or a Subsidiary or an
Affiliate (or a company or a parent or subsidiary
company of such company issuing or assuming
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the Option in a transaction to which Section 424(a)
of the Code applies), and unless the Grantee has
remained continuously so employed, or continuously
maintained such relationship, since the date of grant
of the Option; provided that, (i) the Award Agreement
may contain provisions extending the exercisability
of Options, in the event of specified terminations,
to a date not later than the expiration date of such
Option, and (ii) the Committee may determine, in its
sole discretion, to allow the exercise of any Option
in any individual case after the termination of the
employment or other relationship, but in any event,
such exercise shall not be allowed after the
expiration date of such Option.
(2) If the Grantee's employment or service
terminates because the Grantee has died, retired from
the Company at his or her normal retirement date
under the Company's qualified retirement plan or
become permanently disabled (within the meaning of
Section 22(e)(3) of the Code), such Grantee's Options
(to the extent then exercisable) shall remain
outstanding until the earlier of (i) one year from
the date Grantee's employment or service terminates,
and (ii) expiration of the term of the Option.
(3) If the Grantee's employment or service
terminates other than for cause, such Grantee's
Options (to the extent then exercisable) shall remain
outstanding until the earlier of (i) three months
from the date Grantee's employment or service
terminates, and (ii) expiration of the term of the
Option.
(5) Other Provisions. Options may be subject to such
other conditions including, but not limited to, restrictions
on transferability of the shares acquired upon exercise of
such Options, as the Committee may prescribe in its discretion
or as may be required by applicable law.
(2) SARs. The Committee is authorized to grant SARs to Grantees on the
following terms and conditions:
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(1) In General. Unless the Committee determines otherwise, an
SAR (1) granted in tandem with an NQSO may be granted at the time of
grant of the related NQSO or at any time thereafter or (2) granted in
tandem with an ISO may only be granted at the time of grant of the
related ISO. An SAR granted in tandem with an Option shall be
exercisable only to the extent the underlying Option is exercisable.
(2) SARs. An SAR shall confer on the Grantee a right to
receive an amount with respect to each share subject thereto, upon
exercise thereof, equal to the excess of (1) the Fair Market Value of
one share of Stock on the date of exercise over (2) the grant price of
the SAR (which in the case of an SAR granted in tandem with an Option
shall be equal to the exercise price of the underlying Option, and
which in the case of any other SAR shall be such price as the Committee
may determine).
(3) Restricted Stock. The Committee is authorized to grant
Restricted Stock to Grantees on the following terms and conditions:
(1) Issuance and Restrictions. Restricted Stock shall
be subject to such restrictions on transferability and other
restrictions, if any, as the Committee may impose at the date
of grant or thereafter, which restrictions may lapse
separately or in combination at such times, under such
circumstances, in such installments, or otherwise, as the
Committee may determine. The Committee may place restrictions
on Restricted Stock that shall lapse, in whole or in part,
upon the attainment of Performance Goals. Except to the extent
restricted under the Award Agreement relating to the
Restricted Stock, a Grantee granted Restricted Stock shall
have all of the rights of a stockholder including, without
limitation, the right to vote Restricted Stock and the right
to receive dividends thereon.
(2) Forfeiture. Upon termination of employment or
service during the applicable restriction period, Restricted
Stock and any accrued but unpaid dividends or Dividend
Equivalents that are at that time subject to restrictions
shall be forfeited; provided that, the Committee may provide,
by rule or regulation or in any Award Agreement, or may
determine in any individual case, that
11
<PAGE>
restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of
terminations resulting from specified causes, and the
Committee may in other cases waive in whole or in part the
forfeiture of Restricted Stock.
(3) Certificates for Stock. Restricted Stock granted
under the Plan may be evidenced in such manner as the
Committee shall determine. If certificates representing
Restricted Stock are registered in the name of the Grantee,
such certificates shall bear an appropriate legend referring
to the terms, conditions, and restrictions applicable to such
Restricted Stock, and the Company shall retain physical
possession of the certificate.
(4) Dividends. Dividends paid on Restricted Stock
shall be either paid at the dividend payment date, or deferred
for payment to such date as determined by the Committee, in
cash or in shares of unrestricted Stock having a Fair Market
Value equal to the amount of such dividends. Stock distributed
in connection with a stock split or stock dividend, and other
property distributed as a dividend, shall be subject to
restrictions and a risk of forfeiture to the same extent as
the Restricted Stock with respect to which such Stock or other
property has been distributed.
(4) Restricted Stock Units. The Committee is authorized to
grant Restricted Stock Units to Grantees, subject to the following
terms and conditions:
(1) Award and Restrictions. Delivery of Stock or
cash, as determined by the Committee, will occur upon
expiration of the deferral period specified for Restricted
Stock Units by the Committee. The Committee may condition the
vesting and/or payment of Restricted Stock Units, in whole or
in part, upon the attainment of Performance Goals.
(2) Forfeiture. Upon termination of employment or
service during the applicable deferral period or portion
thereof to which forfeiture conditions apply, or upon failure
to satisfy any other conditions precedent to the delivery of
Stock or cash to which such Restricted Stock Units relate, all
Restricted Stock Units that are
12
<PAGE>
then subject to deferral or restriction shall be forfeited;
provided that, the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any
individual case, that restrictions or forfeiture conditions
relating to Restricted Stock Units will be waived in whole or
in part in the event of termination resulting from specified
causes, and the Committee may in other cases waive in whole or
in part the forfeiture of Restricted Stock Units.
(5) Dividend Equivalents. The Committee is
authorized to grant Dividend Equivalents to Grantees. The Committee
may provide, at the date of grant or thereafter, that Dividend
Equivalents shall be paid or distributed when accrued or shall be
deemed to have been reinvested in additional Stock, or other
investment vehicles as the Committee may specify, provided that
Dividend Equivalents (other than freestanding Dividend Equivalents)
shall be subject to all conditions and restrictions of the
underlying Awards to which they relate.
(6) Other Stock- or Cash-Based Awards. The
Committee is authorized to grant Awards to Grantees in the form of
Other Stock-Based Awards or Other Cash-Based Awards, as deemed by
the Committee to be consistent with the purposes of the Plan. Awards
granted pursuant to this paragraph may be granted with value and
payment contingent upon the attainment of certain Performance Goals,
so long as such goals relate to periods of performance in excess of
one calendar year. The Committee shall determine the terms and
conditions of such Awards at the date of grant or thereafter. The
maximum payment that any Grantee may receive pursuant to Cash-Based
Award granted under this paragraph in respect of any performance
period shall be $750,000. Payments earned hereunder may be decreased
or, with respect to any Grantee who is not a "covered employee"
within the meaning of Section 162(m) of the Code (a "Covered
Employee"), increased in the sole discretion of the Committee based
on such factors as it deems appropriate. No payment shall be made
prior to the certification by the Committee that any applicable
Performance Goals have been attained. The Committee may establish
such other rules applicable to the Other Stock- or Cash-Based Awards
to the extent not inconsistent with Section 162(m) of the Code with
respect to any Award intended to comply therewith.
13
<PAGE>
7. Change in Control Provisions
(1) Except as set forth in an Award Agreement, upon the occurrence of a
Change in Control (as hereinafter defined), any Award carrying a right to
exercise that was not previously exercisable and vested shall become fully
exercisable and vested and the restrictions, and forfeiture conditions
applicable to any other Award granted under the Plan shall lapse and such Award
shall be deemed fully vested, and any Performance Goals imposed with respect to
Awards shall be deemed to be fully achieved. Notwithstanding anything in the
Plan to the contrary, upon the occurrence of a Change in Control, the
purchaser(s) of the Company's assets or stock may, in his, her, or its
discretion, deliver to the Grantee the same kind of consideration that is
delivered to the shareholders of the Company as a result of such sale,
conveyance or Change in Control, or the Board may cancel all outstanding Options
in exchange for consideration in cash or in kind which consideration in both
cases shall be equal in value to the higher of (i) the Fair Market Value of
those shares of stock or other securities the Grantee would have received had
the Option been exercised and no disposition of the shares acquired upon such
exercise been made prior to such sale, conveyance or Change in Control, less the
exercise price therefor, and (ii) the Fair Market Value of those shares of stock
or other securities the Grantee would have received had the Option been
exercised and no disposition of the shares acquired upon such exercise been made
immediately following such sale, conveyance or Change in Control, less the
exercise price therefor. A "Change in Control" shall be deemed to have occurred
if (i) any person, or any two or more persons acting as a group, and all
affiliates of such person or persons, who prior to such time owned less than ten
percent (10%) of the then outstanding Common Stock of the Company, shall
acquire, whether by purchase, exchange, tender offer, merger, consolidation or
otherwise, such additional shares of the Company's Common Stock in one or more
transactions, or series of transactions, such that following such transaction or
transactions, such person or group and affiliates beneficially own fifty percent
(50%) or more of the Company's Common Stock outstanding, or (ii) the following
individuals cease for any reason to constitute a majority of the number of
directors then serving: individuals who, on January 22, 1998, constitute the
Board (as such individuals are identified on Schedule III to the Investors'
Agreement dated January 21, 1998 among Fisher Scientific International, Inc.,
Thomas H. Lee Equity Fund III, L.P. and certain other persons named therein) and
any new director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board
14
<PAGE>
or nomination for election by the Company's stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the January 22, 1998 or whose
appointment, election or nomination for election was previously so approved or
recommended.
(2) Upon dissolution or liquidation of the Company, all Options and
other Awards granted under this Plan shall terminate, but each Grantee shall
have the right, immediately prior to such dissolution or liquidation, to
exercise his or her Option to the extent then exercisable.
8. Loan Provisions. Subject to the provisions of the Plan and all
applicable federal and state laws, rules and regulations, the Committee shall
have the authority to make Loans to Grantees (on such terms and conditions as
the Committee shall determine), to enable such Grantees to purchase shares of
Stock. Loans shall be evidenced by a promissory note or other agreement, signed
by the borrower, which shall contain provisions for repayment and such other
terms and conditions as the Committee shall determine.
9. General Provisions
(1) Nontransferability. Unless otherwise determined by the Committee or
provided in an Award Agreement, Awards shall not be transferable by a Grantee
except by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined under the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, and shall be
exercisable during the lifetime of a Grantee only by such Grantee or his
guardian or legal representative. Any Award shall be null and void and without
effect upon the bankruptcy of the Grantee to whom the Award is granted, or upon
any attempted assignment or transfer, except as herein provided, including
without limitation any purported assignment, whether voluntary or by operation
of law, pledge, hypothecation or other disposition, attachment, divorce, trustee
process or similar process, whether legal or equitable, upon such Award.
(2) No Right to Continued Employment, etc. Nothing in the Plan or in
any Award or Loan granted or any Award Agreement, promissory note or other
agreement entered into pursuant hereto shall confer upon any Grantee the right
to continue in the employ or service of the Company, any Subsidiary or any
Affiliate or to be entitled to any remuneration or benefits not set forth in the
Plan or such Award Agreement, promissory note or other agreement or to interfere
with
15
<PAGE>
or limit in any way the right of the Company or any such Subsidiary or Affiliate
to terminate such Grantee's employment or service.
(3) Taxes. The Company or any Subsidiary or Affiliate is authorized to
withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Stock, or any other payment to a Grantee,
amounts of withholding and other taxes due in connection with any transaction
involving an Award, and to take such other action as the Committee may deem
advisable to enable the Company and Grantees to satisfy obligations for the
payment of withholding taxes and other tax obligations relating to any Award.
This authority shall include authority to withhold or receive Stock or other
property and to make cash payments in respect thereof in satisfaction of a
Grantee's tax obligations.
(4) Stockholder Approval; Amendment and Termination. The Plan shall
take effect on the Effective Date but the Plan (and any grants of Awards made
prior to the stockholder approval mentioned herein) shall be subject to the
requisite approval of the stockholders of the Company, which approval must occur
within twelve (12) months of the date that the Plan is adopted by the Board. In
the event that the stockholders of the Company do not ratify the Plan at a
meeting of the stockholders at which such issue is considered and voted upon,
then upon such event the Plan and all rights hereunder shall immediately
terminate and no Grantee (or any permitted transferee thereof) shall have any
remaining rights under the Plan or any Award Agreement entered into in
connection herewith. The Board may at any time and from time to time alter,
amend, suspend, or terminate the Plan or Award Agreement in whole or in part.
Notwithstanding the foregoing, no amendment shall affect adversely any of the
rights of any Grantee, without such Grantee's consent, under any Award or Loan
theretofore granted under the Plan. Unless earlier terminated by the Board
pursuant to the provisions of the Plan, the Plan shall terminate on the tenth
anniversary of its Effective Date. No Awards shall be granted under the Plan
after such termination date.
(5) No Rights to Awards or Loans; No Stockholder Rights. No Grantee
shall have any claim to be granted any Award or Loan under the Plan, and there
is no obligation for uniformity of treatment of Grantees. Except as provided
specifically herein, a Grantee or a transferee of an Award shall have no rights
as a stockholder with respect to any shares covered by the Award until the date
of the issuance of a stock certificate to him for such shares.
16
<PAGE>
(6) Unfunded Status of Awards. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Grantee pursuant to an Award, nothing contained in
the Plan or any Award shall give any such Grantee any rights that are greater
than those of a general creditor of the Company.
(7) No Fractional Shares. No fractional shares of Stock shall be issued
or delivered pursuant to the Plan or any Award. The Committee shall determine
whether cash, other Awards, or other property shall be issued or paid in lieu of
such fractional shares or whether such fractional shares or any rights thereto
shall be forfeited or otherwise eliminated.
(8) Regulations and Other Approvals.
(1) The obligation of the Company to sell or deliver Stock
with respect to any Award granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable
federal and state securities laws, and the obtaining of all such
approvals by governmental agencies as may be deemed necessary or
appropriate by the Committee.
(2) Each Award is subject to the requirement that, if at any
time the Committee determines, in its absolute discretion, that the
listing, registration or qualification of Stock issuable pursuant to
the Plan is required by any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory
body is necessary or desirable as a condition of, or in connection
with, the grant of an Award or the issuance of Stock, no such Award
shall be granted or payment made or Stock issued, in whole or in part,
unless listing, registration, qualification, consent or approval has
been effected or obtained free of any conditions not acceptable to the
Committee.
(3) In the event that the disposition of Common Stock acquired
pursuant to the Plan is not covered by a then current registration
statement under the Securities Act of 1933, as amended (the "Securities
Act"), and is not otherwise exempt from such registration, such Stock
shall be restricted against transfer to the extent required by the
Securities Act or regulations thereunder, and the Committee may require
a Grantee receiving Stock pursuant to the Plan, as a condition
precedent to receipt of such
17
<PAGE>
Stock, to represent to the Company in writing that the Stock acquired
by such Grantee is acquired for investment only and not with a view to
distribution.
(9) Governing Law. The Plan and all determinations made and actions
taken pursuant hereto shall be governed by the laws of the State of Delaware
without giving effect to the conflict of laws principles thereof.
18
<PAGE>
EXHIBIT 21.1
FISHER SCIENTIFIC INTERNATIONAL INC.
WORLDWIDE SUBSIDIARY LIST
<TABLE>
<CAPTION>
Percentage State/Country
Ownership Incorporation
------------- -------------------
<S> <C> <C>
Fisher Scientific Company L.L.C. 100 Delaware
Fisher Scientific Limited 100 Canada
Fisher Hamilton Inc. 100 Delaware
Fisher Scientific GmbH 100 Germany
Kuhn + Bayer GmbH 100 Germany
Fisher Scientific of the Netherlands B.V. 100 Netherlands
Fisher Scientific B.V. 100 Netherlands
Fisher Scientific Worldwide Inc. 100 Delaware
Acros Organics N.V. 100 Belgium
Resco Trade N.V. 100 Belgium
Fisher Chimica N.V. 100 Belgium
Fisher Scientific Holding Company 100 Delaware
Fisher Scientific Holding U.K., Limited 100 United Kingdom
Fisher Scientific U.K., Limited 100 United Kingdom
Orme Scientific Limited 100 United Kingdom
Fisher Scientific Holdings France S.A. 100 France
Fisher Scientific S.A. 100 France
Fisher Technology Group Inc. 100 Delaware
Strategic Procurement Services Holdings Inc. 100 Delaware
</TABLE>
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statements No.
33-46728, 33-86830, 333-07391, 333-18563 and 333-28789 of Fisher Scientific
International Inc. on Forms S-8 of our report dated February 18, 1998 (March 9,
1998 as to Note 2) appearing in this Annual Report on Form 10-K of Fisher
Scientific International Inc. for the year ended December 31, 1997.
DELOITTE & TOUCHE LLP
New York, New York
March 19, 1998
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE
SHEET AS OF DECEMBER 31, 1997 AND THE INCOME STATEMENT FOR THE YEAR ENDED
DECEMBER 31, 1997, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 18
<SECURITIES> 0
<RECEIVABLES> 297
<ALLOWANCES> 0
<INVENTORY> 224
<CURRENT-ASSETS> 592
<PP&E> 224
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,177
<CURRENT-LIABILITIES> 355
<BONDS> 268
0
0
<COMMON> 0
<OTHER-SE> 347
<TOTAL-LIABILITY-AND-EQUITY> 1,177
<SALES> 2,175
<TOTAL-REVENUES> 2,175
<CGS> 1,584
<TOTAL-COSTS> 1,584
<OTHER-EXPENSES> 3
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 23
<INCOME-PRETAX> (5)
<INCOME-TAX> 25
<INCOME-CONTINUING> (30)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (30)
<EPS-PRIMARY> (1.50)
<EPS-DILUTED> (1.50)
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEET AS
OF SEPTEMBER 30, JUNE 30, MARCH 31, 1997, AND THE INCOME STATEMENTS FOR THE
NINE, SIX, AND THREE ENDED SEPTEMBER 30, JUNE 30, AND MARCH 31 1997, AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000,000
<S> <C> <C> <C>
<PERIOD-TYPE> 9-MOS 6-MOS 3-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1997 DEC-31-1997
<PERIOD-START> JAN-01-1997 JAN-01-1997 JAN-01-1997
<PERIOD-END> SEP-30-1997 JUN-30-1997 MAR-31-1997
<CASH> 30 16 16
<SECURITIES> 0 0 0
<RECEIVABLES> 323 317 321
<ALLOWANCES> 0 0 0
<INVENTORY> 244 246 261
<CURRENT-ASSETS> 653 649 646
<PP&E> 223 213 225
<DEPRECIATION> 0 0 0
<TOTAL-ASSETS> 1,280 1,260 1,273
<CURRENT-LIABILITIES> 402 364 372
<BONDS> 274 296 305
0 0 0
0 0 0
<COMMON> 0 0 0
<OTHER-SE> 406 406 398
<TOTAL-LIABILITY-AND-EQUITY> 1,280 1,260 1,273
<SALES> 1,624 1,069 527
<TOTAL-REVENUES> 1,624 1,069 527
<CGS> 1,176 775 380
<TOTAL-COSTS> 1,176 775 380
<OTHER-EXPENSES> 0 0 0
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> 18 12 6
<INCOME-PRETAX> 48 38 20
<INCOME-TAX> 23 18 9
<INCOME-CONTINUING> 25 21 11
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> 25 21 11
<EPS-PRIMARY> 1.21 1.02 .54
<EPS-DILUTED> 1.18 0.99 .53
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE
SHEETS AS OF DECEMBER 31, SEPTEMBER 30, JUNE 30, MARCH 31, 1996 AND THE INCOME
STATEMENT FOR THE TWELVE, NINE, SIX AND THREE MONTHS ENDED DECEMBER 31,
SEPTEMBER 30, JUNE 30, AND MARCH 31, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENT.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000,000
<S> <C> <C> <C> <C>
<PERIOD-TYPE> 12-MOS 9-MOS 6-MOS 3-MOS
<FISCAL-YEAR-END> DEC-31-1996 DEC-31-1996 DEC-31-1996 DEC-31-1996
<PERIOD-START> JAN-01-1996 JAN-01-1996 JAN-01-1996 JAN-01-1996
<PERIOD-END> DEC-31-1996 SEP-30-1996 JUN-30-1996 MAR-31-1996
<CASH> 25 14 17 19
<SECURITIES> 0 0 0 0
<RECEIVABLES> 317 321 295 315
<ALLOWANCES> 0 0 0 13
<INVENTORY> 256 237 241 237
<CURRENT-ASSETS> 653 635 614 623
<PP&E> 210 209 204 326
<DEPRECIATION> 0 0 0 120
<TOTAL-ASSETS> 1,263 1,224 1,204 1,215
<CURRENT-LIABILITIES> 393 377 349 356
<BONDS> 282 277 287 421
0 0 0 0
0 0 0 0
<COMMON> 0 0 0 0
<OTHER-SE> 386 375 366 233
<TOTAL-LIABILITY-AND-EQUITY> 1,263 1,224 1,204 1,215
<SALES> 2,144 1,589 1,048 516
<TOTAL-REVENUES> 2,144 1,589 1,048 516
<CGS> 1,566 1,164 770 380
<TOTAL-COSTS> 1,566 1,164 770 380
<OTHER-EXPENSES> 0 0 1 1
<LOSS-PROVISION> 0 0 0 0
<INTEREST-EXPENSE> 27 22 16 9
<INCOME-PRETAX> 68 45 24 8
<INCOME-TAX> 31 20 11 4
<INCOME-CONTINUING> 37 24 13 5
<DISCONTINUED> 0 0 0 0
<EXTRAORDINARY> 0 0 0 0
<CHANGES> 0 0 0 0
<NET-INCOME> 37 24 13 5
<EPS-PRIMARY> 2.01 1.38 0.78 0.27
<EPS-DILUTED> 1.90 1.30 0.74 0.27
</TABLE>
