UNITED STATES -------------------------------
SECURITIES AND EXCHANGE COMMISSION OMB APPROVAL
Washington, D.C. 20549 -------------
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
Fisher Scientific International, Inc.
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(Name of Issuer)
Common Stock
__________________________________________________________________________
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(Title of Class of Securities)
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338032204
___________________________
(CUSIP Number)
Robert F. Tully
KECALP Inc.
South Tower - World Financial Center
225 Liberty Street
New York, New York 10080
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(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
January 21, 1997
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- ---------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
SEC 1746(12/91)
SCHEDULE 13D
CUSIP No. 338032 20 4 Page 2 of 19 Pages
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Merrill Lynch KECALP L.P. 1997
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) / /
GROUP* (b) / X /
3 SEC USE ONLY
4 SOURCE OF FUND*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
Not Applicable
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7 SOLE VOTING POWER
OF 210,693
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0 shares of common stock
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
210,693
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 0 shares of common stock
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
210,693 shares of common stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
Not Applicable / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.9%
14 TYPE OF REPORTING PERSON*
PN, IC
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
SCHEDULE 13D
CUSIP No. 338032 20 4 Page 3 of 19
1 NAME OF REPORTING PERSON S.S. or I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
ML IBK Positions, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) / /
GROUP* (b) /x/
3 SEC USE ONLY
4 SOURCE OF FUND*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
Not Applicable
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
11,216
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0 shares of common stock
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
11,216
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
0 shares of common stock
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,216 shares of common stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
Not Applicable / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
SCHEDULE 13D
CUSIP No. 338032 20 4 Page 4 of 19
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KECALP Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) / /
GROUP* (b) /x/
3 SEC USE ONLY
4 SOURCE OF FUND*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
Not Applicable
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7 SOLE VOTING POWER
OF 40,132
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 210,693 shares of common stock
OWNED BY 9 SOLE DISPOSITIVE POWER
40,132
REPORTING 10 SHARED DISPOSITIVE POWER
PERSON 210,693 shares of common stock
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
250,825 shares of common stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
Not Applicable
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
SCHEDULE 13D
CUSIP No. 338032 20 4 Page 5 of 19
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Merrill Lynch & Co., Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) / /
GROUP* (b) /x /
3 SEC USE ONLY
4 SOURCE OF FUND*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
Not Applicable
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHRAES 0
8 SHARED VOTING POWER
BENEFICIALLY 262,041 shares of common stock
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 262,041 shares of common stock
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
262,041 shares of common stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
Not Applicable
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.6%
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
Item 1. Security and Issuer.
Title of Security: Common Stock, $0.01 par value per share
(the "Shares").
Issuer: Fisher Scientific International, Inc.
The address of the issuer's principal executive offices is
Liberty Lane, Hampton, New Hampshire 03842
Item 2. Identity and Background.
(a) This Schedule 13D is being filed jointly on behalf of
the following persons (collectively, the "Reporting
Persons"):
(1) Merrill Lynch KECALP L.P. 1997, which is a closed-
end investment company under the Investment
Company Act of 1940 organized as a Delaware
limited partnership;
(2) KECALP Inc., which is a Delaware corporation and
an indirect wholly-owned subsidiary of Merrill
Lynch & Co., Inc., as well as the general partner
of Merrill Lynch KECALP L.P. 1997; and
(3) ML IBK Positions, Inc., which is a Delaware
corporation, and an indirect wholly-owned
subsidiary of Merrill Lynch & Co., Inc.
(4) Merrill Lynch & Co., Inc., which is a Delaware
corporation.
A list of the directors and executive officers of Merrill
Lynch & Co., Inc. is set forth as Schedule A hereto.
(b) The address of each of the Reporting Persons is c/o
Merrill Lynch KECALP L.P. 1997, South Tower, World
Financial Center, 225 Liberty Street, New York, New
York 10080.
(c) Not applicable.
(d) None of the Reporting Persons has been convicted in a
criminal proceeding during the last five years.
(e) None of the Reporting Persons has been a party to a
civil proceeding of a judicial or administrative body
during the last five years.
(f) Not applicable.
Item 3. Source and Amount of Funds or Other Consideration
Each of the Reporting Persons obtained funds from working
capital, or the working capital of its affiliates, as the case may be.
The total consideration paid by Merrill Lynch KECALP L.P. 1997 in
connection with its purchase of Shares was $9,393,020.50; the total
consideration paid by KECALP Inc. in connection with its purchase of
Shares was $1,789,158.25; the total consideration paid by ML IBK
Positions, Inc. in connection with its purchase of Shares was
$500,014.75.
Item 4. Purpose of Transaction
The Reporting Persons entered into the Agreements (as
defined below) to purchase the Shares for general investment purposes.
The Reporting Persons retain the right to change their investment
intent. Subject to market conditions and other factors, the Reporting
Persons may acquire or dispose of shares of Fisher Scientific
International Inc. ("Fisher") from time to time in future open-
market, privately negotiated or other transactions, may enter into
agreements with third parties relating to acquisitions of securities
issued or to be issued by the Surviving Corporation (defined below),
may enter into agreements with the management of Fisher relating to
acquisitions of shares of the Surviving Corporation by members of
management, issuance of options to management or their employment by
the Surviving Corporation, or may effect other similar agreements or
transactions.
Except as set forth herein, the Reporting Persons do not
have any plans or proposals which would relate to or result in any of
the transactions described in subparagraphs (a) through (j) of Item 4
of Schedule 13D.
On August 7, 1997, Fisher and FSI Merger Corp. ("FSI"), a
Delaware corporation that, as of August 4, 1997, was wholly-owned by
Thomas H. Lee Equity Fund III, L.P. ("Equity Fund III") entered into
an Agreement and Plan of Merger (as amended and restated on September
11 and November 14, 1997, and amended on January 16, 1998, the "Merger
Agreement," incorporated by reference as Exhibit 2). The Merger
Agreement provides, among other things, for the merger of FSI with and
into Fisher (the "Merger"), with Fisher as the surviving corporation
(the "Surviving Corporation"). From and after the Effective Time (as
defined below), the Surviving Corporation shall possess all the
rights, privileges, powers and franchises and shall be subject to all
of the restrictions, disabilities and duties of Fisher and FSI, all
as provided under Delaware law.
The transactions contemplated by the Merger Agreement were
approved by the stockholders of Fisher on January 16, 1998 and were
consummated on January 21, 1998. Pursuant to the terms of the Merger
Agreement, on January 21, 1998 (the "Closing Date"), Fisher filed a
Certificate of Merger with the Secretary of the State of Delaware, and
the Merger was effective as of the filing of such certificate (the
"Effective Time"). Holders of outstanding Shares at the Effective
Time elected to retain 4,298,358 Shares in the Merger. Because no
more than 746,114 Shares could be retained in the Merger, the
4,298,358 Shares elected to be retained were subject to proration
and each elected Share was converted into .173581167 retained Shares.
All remaining Shares outstanding at the Effective Time, including the
[3,552,244] Shares elected to be retained but which were subject to
proration, were converted into the right to receive $48.25 per share
in cash. As provided in the Merger Agreement, the Management
Investors elected to retain an additional 228,857 Shares (the
"Management Shares") and elected to convert at the Effective Time
outstanding options into an additional 602,264 Shares.
Also, members of Fisher management were granted options to
purchase up to 1,653,322 Shares at exercise prices ranging from $48.25
per share to $144.75 per share.
In connection therewith, immediately prior to the Effective
Time, FSI entered into an Investors' Subscription Agreement (the
"Subscription Agreement") (incorporated by reference as Exhibit 4)
with Equity Fund III, Thomas H. Lee Foreign Fund III, THL FSI Equity
Investors, L.P., THL-CCI Limited Partnership, and certain persons
affiliated with Thomas H. Lee Company (collectively, the "THL
Entities"); DLJ Merchant Banking Partners II, L.P., DLJ Merchant
Banking Partners II-A, L.P., DLJ Offshore Partners II, C.V., DLJ
Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ
Millenium Partners, L.P., DLJ Millenium Partners-A, L.P., DLJMB
Funding II, Inc., UK Investment Plan 1997 Partners, DLJ EAB Partners,
L.P., DLJ ESC II, L.P., DLJ First ESC, L.P. (collectively, the "DLJMB
Funds"); Chase Equity Associates, L.P. ("Chase"); the Reporting
Persons (together with the DLJMB Funds and Chase, the "Institutional
Investors"), dated January 21, 1998, pursuant to which the THL
Entities and the Institutional Investors purchased shares of
stock of FSI on the Terms set forth in the Subscription Agreement. At
the Effective Time, shares of Common Stock of FSI were converted into
6,278,915 shares of Fisher common stock (6,507,772 shares Shares less the
Management Shares) of which 5,471,857 were of Fisher Common Stock (which
is voting) and 807,058 were of Fisher non-voting common stock.
Simultaneous with the execution of the Subscription
Agreement, on January 21, 1998, Fisher entered into a Common Stock
Warrant Acquisition Agreement (the "Warrant Acquisition Agreement")
(incorporated by reference as Exhibit 5) with the THL Entities and the
Institutional Investors in connection with such parties' commitment to
purchase cumulative preferred stock of Fisher. Pursuant to the
Warrant Acquisition Agreement, the THL Entities and the Institutional
Investors received warrants to purchase 516,663 Shares in connection
with the Merger.
In addition, Fisher, the THL Entities, the Institutional
Investors (and together with the THL Entities, the "Equity
Investors"), and certain Fisher management stockholders (the
"Management Investors") have entered into an Investors' Agreement
dated as of January 21, 1998 (the "Investors' Agreement") (filed
hereto and made a part hereof as Exhibit 3). The Investors'
Agreement, together with the Merger Agreement, the Subscription
Agreement and the Warrant Acquisition Agreement, are sometimes
referred to herein as the "Agreements."
Pursuant to the Investors' Agreement, the Board of Directors
of Fisher will comprise at least ten and no more than eleven members,
seven of which will be nominated by Equity Fund III, one of which will
be nominated by DLJ Merchant Banking Partners II, L.P., one of which
will be Paul M. Montrone and one of which will be Paul M. Meister
(Montrone and Meister collectively, the "Management Directors").
Further, at least two of the members shall not be "Affiliates" or
"Associates" of any party to the Investors' Agreement within the
meaning of Rule 12b-2 under the Exchange Act. Each of the parties to
the Investors' Agreement entitled to vote for the election of
directors has agreed to vote its shares of Fisher in favor of the
persons so nominated or designated, provided that none of the parties
will be required to vote for another party's nominee or a Management
Director, as it were, if the number of Shares beneficially held by the
person or group making the nomination or by such Management Director
is less than 10% of such person's or group's or such Management
Director's Initial Ownership (defined as the number of shares of
Equity Securities (as defined in the Investors' Agreement)
beneficially owned, including any rights to acquire such shares, by
such person or group or the Management Directors, as of the date of
the Investors' Agreement).
Following the Effective Time, the Board of Directors
currently consists of Messrs. Scott M. Sperling, Anthony J. DiNovi,
David V. Harkins and Kent R. Weldon, who are affiliates of one or more
of the THL Entities; Messrs. Michael D. Dingman, Paul M. Montrone and
Robert A. Day, each of whom was a member of the Board of Directors
prior to the Effective Time; and Messrs. Paul M. Meister and Mitchell
J. Blutt. One seat on the Board is currently vacant.
Pursuant to the Investors' Agreement, each of the
Institutional Investors and the Management Investors may transfer
shares to certain persons and entities represented as Permitted
Transferees (as defined in the Investors' Agreement) and, otherwise,
only as follows: (i) pursuant to the Tag-Along Rights described
below; (ii) pursuant to the Drag-Along Rights described below; (iii)
pursuant to the exercise of the Registration Rights described below;
and (iv) in a transfer of shares of a class of equity securities made
after an initial public offering in compliance with Rule 144 under the
Securities Act of 1933, as amended, in an amount not in excess of (A)
the aggregate number of shares of such class transferred by the THL
Entities, multiplied by (B) such Investor's Initial Ownership of such
class divided by the Initial Ownership of Equity Fund III of such
class.
In addition, as to any Institutional Investor and its
Permitted Transferees, Shares will be freely transferable (i) at the
earlier of (A) the date on which the ownership of such Institutional
Investor and its Permitted Transferees falls below 25% of its Initial
Ownership and (B) seven years after the Closing Date; provided that no
such transfer may be made to any Adverse Person (defined as any person
reasonably determined by the Board of Directors to be a competitor or
potential competitor of Fisher).
In addition, as to any Management Investor and its Permitted
Transferees, shares will be freely transferable (i) to another
Management Investor, (ii) ten years after the Closing Date, or
(iii) in a Qualifying Public Offering (as defined below), provided
that no such transfer may be made to any Adverse Person.
The Investors' Agreement provides that if the THL Entities
propose to sell shares of a class of Fisher equity securities, the
other parties to the Investors' Agreement will have the right to
participate in the sale ("Tag-Along Rights"), provided that no such
rights shall apply (i) in public offerings, (ii) to sales to THL
Designated Transferees (as defined in the Investors' Agreement) or
(iii) to sales of up to 5% in the aggregate of the Initial Ownership
(as defined in the Investors' Agreement) by the THL Entities of such
class of equity securities. If Tag-Along Rights apply, the THL
Entities will provide notice to the Institutional and Management
Investors of the terms and conditions of the proposed sale and offer
each such Shareholder the opportunity to participate. If the number
of shares that the THL Entities and the Institutional and Management
Investors propose to sell exceeds the number that can be sold on the
terms and conditions proposed by the buyer, the THL Entities and each
other shareholder who has exercised Tag-Along rights will be entitled
to sell up to his or her proportionate share of the sale, referred to
in the Investors' Agreement as the "Tag-Along Portion." To the extent
any shareholder declines its Tag-Along Portion, the THL Entities shall
be entitled to sell their own shares in lieu of such shareholder.
Equity Fund III may sell, on behalf of the THL Entities and the
Institutional and Management Investors who have exercised Tag-Along
rights, their shares on substantially the same terms and conditions
set forth in the notice within 120 days of the date all Tag-Along
Rights are waived, exercised or expire.
The Investors' Agreement contemplates that if (i) the THL
Entities propose to sell not less than 50% or more of their Initial
Ownership of Common Stock (as defined in the Investors' Agreement) in
a bona fide third party sale, or (ii) the THL Entities propose a sale
in which the Common Stock to be sold by the parties to the Investors'
Agreement constitute more than 50% of the outstanding shares of Common
Stock, then Equity Fund III may, at its sole discretion, compel all
parties to the Investors' Agreement to participate in the sale with
respect to their proportionate share of the amount of Fisher Common
Stock proposed to be sold, referred to in the Investors' Agreement as
the "Drag-Along Portion," for the same consideration and otherwise on
the same terms and conditions as the THL Entities ("Drag-Along
rights"). The Management Directors have the right to require that all
of their shares be purchased by the buyer or the other parties to the
Investors' Agreement, at Equity Fund III's option, as a condition to
consummation of the sale. Shareholders other than the THL Entities
("Non-THL Shareholders") have the right to refuse to participate in
such a sale if the sale terms contain a provision which materially and
adversely affects their ability to compete in any line of business or
geographic area; should any shareholder refuse, the THL Entities may
cause such shareholder to sell its proportionate share of equity
securities to the THL Entities.
In the event that Fisher shall issue equity securities
after the date of the Investors' Agreement and prior to any registered
public offering of Fisher common stock yielding aggregate gross
proceeds of at least $50,000,000 ("Qualified Public Offering"), the
THL Entities and each of the Management Investors shall be entitled to
purchase their pro rata portion of Initial Ownership of such offering
of equity securities ("Preemptive Rights"). In the event that Fisher
shall issue equity securities after a Qualified Public Offering to any
third party, including any shareholder, the THL Entities shall be
entitled to purchase the THL Entities' pro rata portion of the equity
securities being offered. In the event the THL Entities propose to
purchase any new equity securities being issued by Fisher (including
as described in the preceding two sentences), prior to a Qualified
Public Offering each Institutional Investor, and following a Qualified
Public Offering any Non-THL Shareholder, shall be entitled to
purchase, at the same price and on the same terms as the THL Entities,
each of their proportionate share of such new securities, referred to
in the Investors' Agreement as the "Preemptive Rights Portion." The
THL Entities shall have the right to purchase, or designate any other
Fisher shareholders to purchase, any equity securities with respect
to which other Fisher shareholders have not exercised their
Preemptive Rights.
To the extent that the THL Entities shall acquire any equity
securities from any person other than the parties to the Investors'
Agreement, certain other investors shall have the right to acquire their
proportionate share of such equity securities to be acquired by the
THL Entities, referred to in the Investors' Agreement as the "Third
Party Purchase Portion."
Until the earlier of (A) January 21, 2005 or (B) the date
on which at least 40% of the Common Stock on a Fully Diluted basis (as
defined in the Investors' Agreement) is held by persons other than the
parties to the Investors' Agreement, no Institutional or Management Investor
may acquire Fisher equity securities except by exercising its Preemptive
Rights or as permitted under the Investors' Agreement.
Under the Investors' Agreement, the THL Entities may require
that Fisher register for sale its shares of equity securities, such
registration which shall not be effected more than six times. After
Fisher has effected two such demands for registration by the THL
Entities, the Institutional Investors may require that Fisher
register its shares, such registration which shall not be effected
more than once. After the transfer of shares of common stock
exceeding 20% of the pro rata share of common stock initially held by
all of the Equity Investors, the Management Directors may require that
Fisher register their shares, such registration which shall not be
effected more than three times. If Fisher proposes to register
equity securities under the Securities Act, as amended, in connection
with a public offering, it shall offer all shareholders the
opportunity to include in such registration statement such number of
shares of common stock as each such shareholder may request. All such
rights of registration ("Registration Rights") are subject to certain
other customary terms and conditions, including provisions relating to
cutbacks, holdbacks and indemnification.
Additionally, the Investors' Agreement provides that the
parties thereto must maintain certain levels of confidentiality and
"ethical walls" with respect to certain Fisher-related information
received on a confidential basis. Fisher, for its part, shall not
enter into any agreements with any shareholders or prospective
shareholders to the extent such agreements would conflict with the
Registration Rights or reduce the amount of Registrable Securities (as
defined in the Investors' Agreement), or otherwise on terms more
favorable than in the Investors' Agreement. Also, Fisher shall take
certain actions reasonably requested by certain parties subject to
Regulation Y or Regulation K of the Federal Reserve Board in
connection with the compliance by those parties with such regulations.
Each of the Agreements is incorporated by reference as an
exhibit to this Schedule 13D and is incorporated herein by reference.
The foregoing descriptions of the Agreements are not intended to be
complete and are qualified in their entirety by reference to such
exhibits.
Item 5. Interest in Securities of the Issuer
(a) and (b)
By virtue of the Investors' Agreement, the THL Entities, the
Institutional Investors and the Management Investors may be deemed to
share voting and dispositive power with respect to over 5,922,111
(77.4%) of the Outstanding Shares of Fisher (assuming exercise of their
warrants). Each of the Reporting Persons expressly disclaims the existence
of such shared power.
By virtue of the Investors' Agreement, the THL Entities, the
Institutional Investors (except for Chase) and the Management Investors may
constitute a "group" within the meaning of Rule 13d-5(b) under the Exchange
Act. As a member of a group, each Reporting Person may be deemed to
beneficially own the Shares beneficially owned by the members of the
group as a whole (collectively, the "Investors' Shares"). Each of the
Reporting Persons expressly disclaims beneficial ownership of those
Investors' Shares held by any other members of such group.
Merrill Lynch KECALP L.P. 1997 has obtained direct
beneficial ownership of 194,674 Shares pursuant to the Subscription
Agreement and the Merger Agreement, representing approximately 2.7% of
the outstanding Shares as of January 21, 1998 (the "Outstanding
Shares"). Merrill Lynch KECALP L.P. 1997 has also obtained indirect
beneficial ownership of 16,019 Shares pursuant to the Warrant
Acquisition Agreement. Assuming Merrill Lynch KECALP L.P. 1997's
exercise of the Warrants, Merrill Lynch KECALP L.P. 1997 has obtained
beneficial ownership of approximately 0.2% of the Outstanding Shares
as of January 21, 1998. Merrill Lynch KECALP L.P. 1997 has shared
voting and shared dispositive power with respect to such Shares.
KECALP Inc. has obtained direct beneficial ownership of
37,081 Shares pursuant to the Subscription Agreement and the Merger
Agreement, representing approximately 0.5% of the Outstanding Shares.
KECALP Inc. has also obtained indirect beneficial ownership of 3,051
shares pursuant to Warrants issued under the Warrant Acquisition
Agreement. Assuming KECALP Inc.'s exercise of the Warrants, KECALP
Inc. has obtained beneficial ownership of approximately 0.04% of the
Outstanding Shares as of January 21, 1998. KECALP Inc. has shared
voting and shared dispositive power with respect to such Shares.
ML IBK Positions, Inc. has obtained direct beneficial
ownership of 10,363 Shares pursuant to the Subscription Agreement and
the Merger Agreement, representing approximately 0.2% of the
Outstanding Shares. ML IBK Positions, Inc. has also obtained indirect
beneficial ownership of 853 shares pursuant to Warrants issued under
the Warrant Acquisition Agreement. Assuming ML IBK Positions, Inc.'s
exercise of the Warrants, ML IBK Positions, Inc. has obtained
beneficial ownership of approximately 0.01% of the Outstanding Shares
as of January 21, 1998. ML IBK Positions, Inc. has shared voting and
shared dispositive power with respect to such Shares.
Neither the filing of the Schedule 13D nor any of its contents
shall be deemed to constitute an admission that a Reporting Person is the
beneficial owner of any of the Shares other than these which such Reporting
Person has acquired pursuant to the Agreements.
(c) The responses to Items 3 and 4 of this Schedule 13D are
incorporated herein.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
The responses to Items 3, 4, and 5 of this Schedule 13D and
the exhibits to this Schedule 13D are incorporated herein by
reference.
KECALP Inc. intends to transfer the Shares and Warrants which it
directly beneficially owns to Merrill Lynch KECALP International L.P. 1997,
an exempted limited partnership formed and registered in the Cayman Islands
("KECALP International"), at a price equal to KECALP Inc.'s cost plus
interest. KECALP International is an investment fund offered generally
outside of the United States to certain employees of Merrill Lynch & Co.,
Inc. and its subsidiaries. KECALP Inc. intends to transfer such Shares and
Warrants to KECALP International shortly after the closing of the offering
of KECALP International, which is anticipated to occur in March 1997.
Except for the agreements described in the response to this Item
and Item 4, to the best of knowledge of Reporting Persons, there are no
contracts, arrangements, understandings or relationships (legal or
otherwise) between the persons enumerated in Item 2, and any other
person, with respect to any securities of Fisher, including, but not
limited to, transfer or voting of any of the securities, finder's
fees, joint ventures, loan or option arrangements, put or calls,
guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Item 7. Material to Be Filed as Exhibits
Exhibit 1: *Form of Joint Filing Agreement.
Exhibit 2: Second Amended and Restated Agreement and
Plan of Merger dated as of November 14, 1997,
as amended, between Fisher and FSI Merger
Corp. (previously filed as Exhibit 2.1 to the
Registration Statement on Form 4 (Registration
No. 333-42777) filed with the Securities and
Exchange Commission on December 19, 1997 and
incorporated herein by reference thereto).
Exhibit 3: Investors' Agreement dated as of January 21,
1998 among Fisher, the THL Entities, the
Institutional Investors and the Management
Investors (previously filed as Exhibit 10.22 to
the Post-Effective Amendment No. 1 to the Form
S-4, filed with the Securities and Exchange
Commission on February 2, 1998 and incorporated
herein by reference thereto).
Exhibit 4: *Subscription Agreement dated as of January
21, 1998 among FSI Merger Corp. and the
buyers named therein.
Exhibit 5: *Common Stock Warrant Acquisition Agreement
dated as of January 21, 1998 among Fisher,
the THL Entities and the Institutional
Investors.
Exhibit 6: Power of Attorney on behalf of Merrill Lynch
& Co., Inc., dated as of the 30th day of
November, 1994.
____________________
* Filed herewith
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I hereby certify that the information set forth in this
statement is true, complete and correct.
Date: February 3, 1998 MERRILL LYNCH KECALP L.P. 1997
By: KECALP Inc.
General Partner
By: /s/ Robert F. Tully
______________________________
KECALP INC.
By: /s/ Robert F. Tully
_________________________________
ML IBK POSITIONS, INC.
By: /s/ James V. Caruso
_________________________________
MERRILL LYNCH & CO., INC.
By: /s/ Marcia L. Tu
_________________________________
SCHEDULE A
Merrill Lynch & Co., Inc.
Directors:
_________
Herbert M. Allison, Jr.
William O. Bourke
Worley H. Clark
Jill K. Conway
Stephen L. Hammerman
Earl H. Harbison, Jr.
George B. Harvey
William R. Hoover
David H. Komansky
Robert P. Luciano
David K. Newbigging
Aulana L. Peters
John J. Phelan, Jr.
John L. Steffens
William L. Weiss
Officers:
________
David H. Komansky - Chairman of the Board & Chief Executive
Officer
Herbert M. Allison, Jr. - President and Chief Operating Officer
Stephen L. Hammerman - Executive Vice President, General Counsel
and Vice Chairman of the Board
John L. Steffens - Vice Chairman
Thomas W. Davis - Executive Vice President
Barry S. Friedberg - Executive Vice President
Edward L. Goldberg - Executive Vice President
Jerome P. Kenney - Executive Vice President
E. Stanley O'Neal - Executive Vice President
Thomas H. Patrick - Executive Vice President
Jeffrey M. Peek - Executive Vice President
Winthrop H. Smith, Jr. - Executive Vice President
Arthur Zeikel - Executive Vice President
Michael J. Castellano - Senior Vice President and Controller
Paul W. Critchlow - Senior Vice President
Carol Gallery - Senior Vice President
Theresa Lang - Senior Vice President and Treasurer
Robert G. Murphy - Senior Vice President
Daniel T. Napoli - Senior Vice President
Nancy E. Taylor - Senior Vice President
Patrick J. Walsh - Senior Vice President
H. Allen White - Senior Vice President
Joseph T. Willett - Senior Vice President and Chief Financial
Officer
Stephen A. Zimmerman - Senior Vice President
Curtis C. Brown, Jr. - Vice President
Keith L. Horn - Vice President
Bruce E. Thompson, Jr. - Vice President
Gregory T. Russo - Secretary
Richard B. Alsop - Assistant Secretary
Darryl W. Colletti - Assistant Secretary
Lawrence M. Egan, Jr. - Assistant Secretary
Andrea Lowenthal - Assistant Secretary
Margaret E. Nelson - Assistant Secretary
Dauna R. Williams - Assistant Secretary
FORM OF JOINT FILING AGREEMENT
This Agreement is made and entered into as of ______________, by
and between each of the undersigned.
In accordance with Rule 13d-1(f) of the Securities Exchange Act of
1934, as amended, each of the parties hereto agrees with the other parties
that the statement of Schedule 13D pertaining to certain securities of Fisher
Scientific International Inc., to which this agreement is an exhibit, is
filed by and on behalf of each such party and that any amendment thereto will
be filed on behalf of each such party.
[NAMES OF PARTIES]
By:
---------------------
Name:
Title:
FSI MERGER CORP.
INVESTORS' SUBSCRIPTION AGREEMENT
---------------------------------
This Investors Subscription Agreement (the "Agreement") is entered into
---------
as of the 21st day of January, 1998 by and between FSI MERGER CORP., a Dela-
ware corporation ("the "Company") and (i) each of the investors listed on
-------
Exhibit A attached hereto (individually, an "Equity Investor" and
- --------- ---------------
collectively, the "Equity Investors") and (ii) those persons listed on
----------------
Exhibit B (individually, an "Individual Investor" and with (i) above,
-------------------
"Investors").
---------
WHEREAS, the Company has been established to enable the Investors to
make an investment in Fisher Scientific International Inc. ("Fisher"), a
------
Delaware corporation, through a recapitalization transaction (the
"Transaction"), pursuant to that certain Second Amended and Restated
-----------
Agreement and Plan of Merger, dated as of November 14, 1997, as amended (the
"Merger Agreement"), by and between Fisher and the Company; and
----------------
WHEREAS, the Investors wish to purchase from the Company and the Company
wishes to issue and sell to such Investors, shares of the Company's capital
stock, subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties to this Agree-ment, intending to be legally bound,
mutually agree as follows:
ARTICLE I
Purchase and Sale of Shares
---------------------------
1.1 Sale and Issuance of Shares. Subject to the terms and conditions of
---------------------------
this Agreement, each Investor hereby subscribes for and agrees to purchase at
the Closing (as herein defined), and the Company does hereby agree to sell
to each Investor at the Closing, the aggregate number of shares of the
Company's Common Stock, par value $.01 per share ("Voting Common Stock") and
-------------------
shares of the Company's Non-Voting Common Stock, par value $.01 per share
("Non-Voting Common Stock" and together with Voting Common Stock, "Common
----------------------- ------
Stock") set forth opposite each Investor's name on Exhibits A and B
- ----- -----------------
(collectively, the "Shares") at a purchase price of $48.25 per share
------
of Common Stock for the total consideration set forth opposite each
Investor's name on Exhibits A and B. Each Investor hereby acknowledges that
----------------
the number of Shares set forth opposite its name on Exhibits A and B
----------------
constitutes the full, entire and correct number of Shares to be purchased by
it pursuant to this Agreement for the amount of consideration set forth
next to the name of such Investor on Exhibits A and B.
----------------
1.2 Delivery of Purchase Price. In consideration of and in exchange
--------------------------
for the Shares to be purchased hereunder, each Investor shall deliver to
the Company at the Closing (as hereinafter defined), the aggregate
purchase price set forth opposite such Investors' name on Exhibits A and B
----------------
(the "Purchase Price"), payable by wire transfer of immediately available
--------------
funds.
1.3 Closing. The closing of the purchase and sale of the Shares (the
-------
"Closing") shall occur immediately prior to the closing of the Merger (as
-------
defined below) and shall occur at the offices of Skadden, Arps, Slate,
Meagher & Flom LLP, New York, New York, or at such other time and place as
the Company and the Investors may agree (the "Closing Date"). In consider
------------
ation of the purchase by each Investor of the Shares and the payment of the
Purchase Price therefor, the Company shall deliver to each Investor at the
Closing a certificate or certificates evidencing the number of Shares
purchased by each Investor , as set forth on Exhibits A and B.
----------------
1.4 Merger. Immediately following the Closing hereunder, the Company
------
will be merged (the "Merger") with and into Fisher with Fisher surviving the
------
Merger (the "Surviving Corporation"). In the Merger, all the Shares held by
---------------------
the Investors will be converted into shares of capital stock in the
Surviving Corporation on a one-for-one basis, with the result that,
immediately following the Merger, the Investors shall hold (together
with shares purchased directly pursuant to the Merger Agreement) that number
of shares of capital stock in the Surviving Corporation, and such shares of
capital stock after such conversion shall be referred to as "Shares."
ARTICLE II
Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to each Investor that:
2.1 Organization and Standing. The Company is a corporation duly
-------------------------
organized, validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to carry on
its business as now conducted and as proposed to be conducted.
2.2 Capitalization. Immediately prior to the Closing, the authorized
--------------
capital of the Company consists of (or will consist of at the Closing)
6,000,000 shares of Voting Common Stock, par value $.01 per share and
1,000,000 shares of Non-Voting Common Stock, par value $.01 per share.
Immediately prior to the purchase of shares pursuant to this
Agreement, 100 shares of the Company's Common Stock were issued and
outstanding, and no such shares were held in treasury. Immediately
prior to the Closing, there were not any existing options, warrants,
calls, subscriptions, or other rights, or other agreements or
commitments, other than in connection with this Agreement,
obligating the Company to issue, transfer or sell any shares of capital stock
of the Company. Immediately after the Closing and prior to the Merger, there
will be 5,471,857 shares of the Company's Voting Common Stock issued and
outstanding and 807,058 shares of the Company's Non-Voting Common Stock
issued and outstanding. The authorized capital of the Surviving Corporation,
as of the Merger, will consist of 50,000,000 shares of Common Stock, par
value $.01 per share, 15,000,000 shares of preferred stock, par value $.01
per share of which 500,000 shares are designated Series A Junior Participat-
ing Preferred Stock, par value $.01 per share. As of the close of business
on January 20, 1998, 20,356,764 shares of the Surviving Corporation's Common
Stock were issued and outstanding, and no such shares were held in treasury.
The Surviving Corporation has no shares of Preferred Stock issued and
outstanding. As of January 20, 1998, except for (i) 3,555,774 shares
reserved for issuance pursuant to outstanding options and rights granted
under the stock plans and (ii) 500,000 shares of Junior Preferred Stock
reserved for issuance upon exercise of certain rights, there are not now, and
at the Effective Time there will not be, any existing options, warrants,
calls, subscriptions, or other rights, or other agreements or commitments,
obligating the Surviving Corporation to issue, transfer or sell any shares of
capital stock of the Surviving Corporation or any of its subsidiaries.
2.3 Corporate Activity. The Company was created for the sole purpose
------------------
of effecting the Merger and has conducted no activity and has incurred no
liability (other than in connection with the Merger and its financing).
2.4 Authorization. All corporate action on the part of the Company
-------------
necessary for the authorization, execution, delivery and performance of this
Agreement by the Company and for the authorization, issuance and delivery of
the Shares being sold under this Agreement, has been taken. This Agreement,
when executed and delivered by all parties hereto, shall constitute the valid
and legally binding obligation of the Company and shall be enforceable
against the Company in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors'
rights generally and except to the extent enforceability may be limited by
general equitable principles.
2.5 Validity of Shares. The Shares, when issued, sold and delivered
------------------
in accordance with the terms of this Agreement, shall be duly and validly
issued, fully paid and nonassessable.
2.6 Securities Act. The sale of Shares in accordance with the terms
--------------
of this Agreement (assuming the accuracy of the representations and
warranties of the Investors contained in Article III hereof) is exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"1933 Act").
--------
2.7 Reservation of Shares. The Company shall at all times reserve and
---------------------
keep available out of its authorized but unissued shares of Voting Common
Stock or its treasury shares, solely for the purpose of issuance upon the
conversion of shares of Non-Voting Common Stock, such number of shares of
such class as are then issuable upon the conversion of all outstanding shares
of Non-Voting Common Stock which may be converted.
2.8 Non-Contravention. The execution and delivery of this Agreement
------------------
by the Company does not, and the consummation by the Company of the
transactions contemplated hereby and the performance by the Company of the
obligations which it is obligated to perform hereunder will not, (a) violate
any provision of the articles of association, by-laws, agreement of limited
partnership or other organizational documents of the Company, (b) violate in
any material respect any material law, regulation, rule, order, judgment or
decree to which the Company is subject, (c) violate in any material respect,
result in the termination or the acceleration of, or conflict with in any
material respect or constitute a material default under, any material
mortgage, indenture, lease, franchise, license, permit, agreement or
instrument (each, a "Contract") to which the Company is a party or by which
--------
any of its assets or properties are bound.
2.9 Consents, Approvals and Notices. The execution and delivery of
--------------------------------
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby does not require any (a) material consent,
authorization, order or approval of, filing or registration with, or notice
to, any governmental or regulatory authority, which has not been obtained
previously, or (b) material consent, authorization, approval, waiver, order,
license, certificate or permit or act of or from, or notice to, any party to
any Contract to which the Company is a party or by which any of its assets or
properties are bound, which has not been obtained previously.
2.10 Litigation. There is no action, suit or proceeding pending or, to
----------
the knowledge of the Company, threatened, before any court against the
Company which challenges the validity or the propriety of the transactions
contemplated by this Agreement.
ARTICLE III
Representations, Warranties and
-------------------------------
Agreements of the Investors
---------------------------
Each Investor represents and warrants, in each instance as to itself
only and not as to any other Investor, to the Company that:
3.1 Organization; Authority. Each Equity Investor is duly organized,
-----------------------
validly existing and in good standing under the laws of its jurisdiction of
organization. Each Individual Investor has the legal capacity to enter into
this Agreement. Each Investor has the power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The
execution and delivery by each Investor of this Agreement and the
consummation by such Investor of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of such Investor.
3.2 Enforceability. This Agreement, when executed and delivered by all
--------------
parties hereto, will constitute the valid and legally binding obligation
of each Investor, enforceable against each Investor in accordance with its
terms, except to the extent enforceability may be limited by bankruptcy
laws, insolvency laws, reorganization laws, moratorium laws or other laws
affecting creditors' rights generally and except to the extent
enforceability may be limited by general equitable principles. Each
Individual Investor entered into and is bound by this Agreement in
satisfaction of a commitment made by such Individual Investor to subscribe
for the number of Shares set forth in Exhibit B for such Individual Investor
prior to December 18, 1997.
3.3 Non-Contravention. The execution and delivery of this Agreement by
-----------------
each Investor does not, and the consummation by such Investor of the
transactions contemplated hereby and the performance by such Investor of the
obligations which it is obligated to perform hereunder will not,
(a) violate any provision of the articles of association, by-laws,
agreement of limited partnership or other organizational documents of such
Investor, (b) violate in any material respect any material law, regulation,
rule, order, judgment or decree to which such Investor is subject,
(c) violate in any material respect, result in the termination or the
acceleration of, or conflict within any material respect or constitute a
material default under, any material Contract to which such Investor is a
party or by which any of its assets or properties are bound or (d) result
in the creation of any lien or other encumbrance on any of the material
assets or properties of such Investor or the loss of any material license
or other material contractual right with respect thereto.
3.4 Consents, Approvals and Notices. The execution and delivery of this
-------------------------------
Agreement by each Investor and the consummation by each Investor of the
transactions contemplated hereby does not require any (a) material consent,
authorization, order or approval of, filing or registration with, or notice
to, any governmental or regulatory authority, which has not been obtained
previously, or (b) material consent, authorization, approval, waiver, order,
license, certificate or permit or act of or from, or notice to, any party to
any Contract to which such Investor is a party or by which any of its assets
or properties are bound, which has not been obtained previously.
3.5 Litigation. There is no action, suit or proceeding pending or, to
----------
the knowledge of any Investor, threatened, before any court against such
Investor which challenges the validity or the propriety of the
transactions contemplated by this Agreement.
3.6 Investment Representations.
--------------------------
(a) This Agreement is made in reliance upon each Investor's
representations to the Company, which by acceptance hereof each
Investor hereby confirms, that: (i) the Shares will be acquired by such
Investor for investment only, for its own account and not as a nominee
or agent and not with a view to the sale or distribution of any part
thereof in violation of applicable federal and state securities laws;
and (ii) such Investor has no current intention of selling, granting
participation in or otherwise distributing the Shares in violation
of applicable federal and state securities laws. By executing
this Agreement, each Investor further represents that it does not
have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person, or
to any third person, with respect to any of the Shares in violation
of applicable federal and state securities laws.
(b) Each Investor understands that the Shares have not been
registered under the 1933 Act on the basis that the sale provided
for in this Agreement and the issuance of securities hereunder are
exempt from registration under the 1933 Act pursuant to Section 4(2)
thereof and regulations issued thereunder, and that the Company's
reliance on such exemption is predicated on the representations
and warranties of each Investor set forth herein.
(c) Each Investor represents that it has, either alone or
together with the assistance of a "purchaser representative"
(as that term is defined in Regulation D promulgated under the 1933
Act), such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of its investment
in the Company. Each Investor further represents that it is familiar
with the business and financial condition, properties, operations and
prospects of the Company and that it has had access, during the
course of the transactions contemplated hereby and prior to its purchase
of Shares, to the same kind of information that is specified in Part I
of a registration statement under the 1933 Act, and that it has
had the opportunity to ask questions of, and receive answers from, the
Company and the Surviving Corporation concerning the terms and
conditions of the investment and to obtain additional information
(to the extent the Company possessed such information or could acquire
it without unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to such Investor or to which
such Investor has had access. Each Investor has made, either
alone or together with its advisors, such independent
investigation of the Company and the Surviving Corporation as each
Investor deems to be, or its advisors deem to be, necessary or advisable
in connection with this investment. Each Investor understands that
no federal or state agency has passed upon this investment or upon
the Company or the Surviving Corporation, nor has any such agency made
any finding or determination as to the fairness of this investment.
(d) Each Investor represents that it will not sell, transfer or
otherwise dispose of the Shares without registration under the 1933 Act
and applicable state securities laws, or an exemption therefrom. Each
Investor understands that, in the absence of an effective
registration statement covering the Shares or an available exemption
from registration under the 1933 Act and applicable state securities
laws, the Shares must be held indefinitely. In particular, each
Investor acknowledges that it is aware that the Shares may not be
sold pursuant to Rule 144 promulgated under the 1933 Act unless all of
the conditions of such rule are met. Among the current conditions for
use of Rule 144 by certain holders is the availability to the
public of current information about the Surviving Corporation. Each
Investor represents that, in the absence of an effective registration
statement covering the Shares or an exemption from registration under
the 1933 Act, it will sell, transfer or otherwise dispose of the
Shares only in a manner consistent with its representations set
forth herein and then only in accordance with the Investors'
Agreement referred to in Section 6.1.
(e) Each Investor represents that it (i) is capable of bearing
the economic risk of holding the unregistered Shares for an indefinite
period of time and has adequate means for providing for its current
needs and contingencies, (ii) can afford to suffer a complete loss of
this investment and (iii) understands all risk factors related to the
purchase of the Shares.
(f) Each Investor understands that the purchase of the Shares
involves a high degree of risk, that there is no established market
for the Shares and that it is not likely that any public market for
the Shares will develop in the near future.
(g) Each Investor represents that neither it nor anyone acting on
its behalf has paid any commission or other remuneration to any person
in connection with the purchase of the Shares.
(h) Independent of the additional restrictions on the transfer of the
shares of Common Stock contained in the Investors' Agreement referred
to in Section 6.1, each Investor agrees that it will not transfer,
dispose of or pledge any of the Shares other than pursuant to an
effective registration statement under the 1933 Act and applicable state
securities laws, unless and until (i) such Investor shall have
notified the Company of the proposed transfer, disposition or pledge
and shall have furnished the Company with a statement of the
circumstances surrounding the proposed transfer, disposition or pledge
and (ii) if reasonably requested by the Company and at the expense of
each Investor or its transferee, such Investor shall have furnished to
the Company an opinion of counsel reasonably satisfactory (as to
counsel, which in the case of the Equity Investors, may include
internal counsel, and as to substance) to the Company and its
counsel that such proposed transfer, disposition or pledge may be
made without registration of such Shares under the 1933 Act and
applicable state securities laws.
3.7 Legends; Stop Transfer.
----------------------
(a) Each Investor acknowledges that all certificates
evidencing the Shares shall bear the following legend:
"TRANSFER RESTRICTED
-------------------
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
state Securities Laws and may not be offered or sold except in
compliance therewith.
The securities represented by this certificate are subject to the
terms and conditions, including certain restrictions on transfer,
of an Investors' Agreement dated as of January 21, 1998, as amended
from time to time, and none of such securities, or any interest
therein, shall be transferred, pledged, encumbered or otherwise
disposed of except as provided in that Agreement. A copy of the
Investors' Agreement is on file with the Secretary of the Company
and will be mailed to any properly interested person without charge
within five (5) days after receipt of a written request."
(b) The certificates evidencing the Shares shall also bear any
legend required by any applicable state securities law.
(c) In addition, the Company shall make a notation regarding the
restrictions on transfer of the Shares in its stock books, and the Shares
shall be transferred on the books of the Company only if transferred or
sold pursuant to an effective registration statement under the 1933 Act
and applicable state securities laws covering such Shares or pursuant
to and in compliance with the provisions of Section 3.6(h) hereof. All
common stock of the Company and/or the Surviving Corporation hereafter
issued to any Investor shall bear the same endorsement, shall be subject
to all the terms and conditions of this Agreement, and for all purposes
shall be deemed shares of "Common Stock" hereunder. A copy of this
Agreement, together with any amendments thereto, shall remain on file
with the Secretary of the Company and shall be available for inspection
to any properly interested person without charge within five days after
the Company's receipt of a written request therefor.
3.8 Definition of Shares. Notwithstanding anything to the contrary
--------------------
contained herein, each Investor hereby acknowledges and agrees that each
representation and warranty made in this Article III is made with respect to
Shares purchased pursuant to this Agreement and shares of capital stock in
the Surviving Corporation issued in the Merger for the Shares purchased
hereunder.
3.9 Brokers. No broker, investment banker, financial advisor or other
-------
person or entity is entitled to any broker's, finder's, financial advisor's
or other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of any Investor or any of its affiliates.
ARTICLE IV
Conditions to Obligations of the Investors at Closing
----------------------------------------------------
The obligations of each Investor under Article I of this Agreement are
subject to the fulfillment on or before the Closing Date of each of the
following conditions:
4.1 Representations and Warranties. The representations, warranties and
------------------------------
agreements of the Company contained in Article II hereof shall be true on and
as of the Closing Date with the same force and effect as if they had been
made on the Closing Date.
4.2 Performance by the Company. The Company shall have performed in all
--------------------------
material respects all of its obligations and shall have materially complied
with each and all of its covenants required to be performed or complied with
by it on or before the Closing Date.
4.3 Qualifications. All authorizations, approvals or permits, if any,
--------------
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall have been duly obtained and shall
be effective on and as of the Closing Date.
ARTICLE V
Conditions to Obligations of the Company at Closing
---------------------------------------------------
The obligations of the Company under Article I of this Agreement are
subject to the fulfillment on or before the Closing Date of each of the
following conditions:
5.1 Representations. The representations, warranties and agreements of
---------------
the Investors contained in Article III hereof shall be true on and as of the
Closing Date with the same force and effect as if they had been made on the
Closing Date.
5.2 Performance. Each Investor shall have performed in all material
-----------
respects all of its obligations and shall have materially complied with each
and all of its covenants required to be performed or complied with by it on
or before the Closing Date, including without limitation the execution and
delivery of the agreements and undertakings provided for in this Agreement.
5.3 Qualifications. All authorizations, approvals or permits, if any, of
--------------
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall have been duly obtained and shall
be effective on and as of the Closing Date.
ARTICLE VI
Mutual Conditions Precedent
----------------------------
The obligations of the Company and of each Investor under Article I of
this Agreement are subject to the fulfillment on or before the Closing Date
of the following conditions:
6.1 Investors' Agreement. The Company and each of the Investors
--------------------
identified on Exhibits A and B shall have executed and delivered the Investors'
-------------------
Agreement in substantially the form attached as Exhibit C hereto.
---------
6.2 Merger Conditions. All conditions precedent to the Closing of the
-----------------
Merger shall have been performed or waived as of the Closing Date in
accordance with the terms of the Merger Agreement.
6.3 Simultaneous Purchase. Each Investor listed on Exhibits A and B
--------------------- ----------------
hereto shall have simultaneously purchased at the Closing the number of
Shares set forth opposite each Investor's name for the consideration
specified.
ARTICLE VII
Use of Proceeds
---------------
The cash proceeds from the sale of the Shares hereunder will be used to
provide the Company with funds for certain of the payments which are required
to be made by the Company in connection with the Transaction.
ARTICLE VIII
Miscellaneous
-------------
8.1 Termination. (a) This Agreement may be terminated (as to the party
-----------
electing so to terminate it) at any time prior to the Closing Date:
(i) by any party hereto if the Merger shall not have been consum-
mated by the close of business on January 31, 1998;
(ii) by an Investor if any of the conditions specified in Article
IV or VI of this Agreement have not been met or waived by it pursuant to the
terms of this Agreement by the Closing Date, or at such earlier date that it
becomes apparent that any such condition can no longer be satisfied; or
(iii) by the Company if any of the conditions specified in
Article V or VI of this Agreement have not been met or waived by it pursuant
to the terms of this Agreement by the Closing Date or at such earlier date
that it becomes apparent that any such condition can no longer be satisfied.
(b) If the Merger shall not have been consummated by the close of
business on January 22, 1998, the funds delivered by the Investors shall be
delivered to and held by an escrow agent, on terms which are reasonably
acceptable to Investors holding a majority of the funds contributed.
8.2 No Waiver; Modifications in Writing. No failure or delay on the
-----------------------------------
part of the Company or the Investors in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right,
power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be
available to the Company or each Investor at law or in equity or otherwise.
No waiver of or consent to any departure by the Company from any provision of
this Agreement shall be effective unless signed in writing by the party
entitled to the benefit thereof, provided that notice of any such waiver
shall be given to each party hereto as set forth below. This Agreement,
together with the Exhibits hereto, sets forth the entire understanding of the
parties and supersedes all prior agreements, arrangements and communications,
whether oral or written, with respect to the subject matter hereof. Except
as otherwise provided herein, no amendment, modification or termination of
any provision of this Agreement shall be effective unless signed in writing
by or on behalf of the Company and each Investor. Any amendment, supplement
or modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by the Company
from the terms of any provision of this Agreement, shall be effective only in
the specific instance and for the specific purpose for which made or given.
Except where notice is specifically required by this Agreement, no notice to
or by or demand to or on the Company in any case shall entitle or obligate
the Company to any other or further notice or demand in similar or other
circumstances.
8.3 Notices. All notices and other communications necessary or
-------
contemplated under this Agreement shall be in writing and shall be
delivered in the manner specified herein. All notices shall be deemed
to have been duly given upon confirmation by telecopy if delivered by
telecopy or by hand, or one day after sending by overnight delivery
service, or five days after sending by certified mail, postage prepaid,
return receipt requested to the respective addresses of the parties
set forth below:
(a) for notices and communications to the Company:
Thomas H. Lee Company
75 State Street
Boston, Massachusetts 02109
Fax: (617) 227-3514
Attention: Anthony J. DiNovi
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Fax: (212) 735-2000
Attention: Eric L. Cochran, Esq.
(b) for notices and communications to (i) each Equity
Investor, to its address as set forth under each Equity
Investor's name in Exhibit A, and (ii) each Individual
---------
Investor, to his attention in care of Thomas H. Lee
Company.
By notice complying with the foregoing provisions of this Section 8.3, each
party shall have the right to change the notice address for future notices
and communications to such party.
8.4 Costs, Expenses and Taxes. The Company shall pay the Company's and
--------------------------
each Investor's costs and expenses incurred in connection with this Agreement
and the Investors' Agreement, any amendment or supplement to or modification
of any of the foregoing, and any and all other documents furnished pursuant
hereto or thereto or in connection herewith or therewith. The Company shall
pay any and all stamp, transfer and other similar taxes payable or determined
to be payable in connection with the execution and delivery of this Agreement
or the original issuance of the Shares but excluding all federal, state and
local income or similar taxes and shall save and hold each Investor harmless
from and against any and all liabilities with respect to or resulting from
any delay in paying, or omission to pay, such taxes. The Company shall bear
all expenses of shipping certificates evidencing the Shares (including,
without limitation, insurance expenses) from the location of the Closing to
such other places within the United States of America as the Investor shall
specify.
8.5 Execution of Counterparts. This Agreement may be executed in any
-------------------------
number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original and all of which, taken together, shall constitute but one
and the same Agreement.
8.6 Binding Effect; Assignment. The rights and obligations of any or
--------------------------
all of the Investors under this Agreement may not be assigned to any other
person. Except as expressly provided in this Agreement, this Agreement shall
not be construed so as to confer any right or benefit upon any person other
than the parties to this Agreement, and their respective successors and
assigns. This Agreement shall be binding upon the Company and each of the
Investors, and their respective successors and assigns.
8.7 Governing Law. This Agreement shall be governed by the laws of the
-------------
State of Delaware (regardless of the laws that might otherwise govern under
applicable Delaware principles of conflicts of law) as to all matters,
including but not limited to matters of validity, construction, effect,
performance and remedies.
8.8 Severability of Provisions. Any provision of this Agreement which is
--------------------------
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
8.9 Exhibits and Headings. The Exhibits to this Agreement shall be
---------------------
deemed to be a part of this Agreement. The Article and Section headings used
or contained in this Agreement are for convenience of reference only and shall
not affect the construction of this Agreement.
8.10 Injunctive Relief. Each of the parties to this Agreement hereby
-----------------
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that, in the event of a
breach of any material provision of this Agreement, the aggrieved party may
elect to institute and prosecute proceedings to enforce specific performance
or to enjoin the continuing breach of such provision, as well as to obtain
damages for breach of this Agreement. By seeking or obtaining any such
relief, the aggrieved party will not be precluded from seeking or obtaining
any other relief to which it may be entitled.
8.11 Attorneys' Fees. In any action or proceeding brought to enforce any
---------------
provision of this Agreement or the Investors' Agreement, or where any
provision hereof or thereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
8.12 Survival of Agreements, Representations and Warranties. All
------------------------------------------------------
agreements, representations and warranties contained herein or made in
writing by or on behalf of the Company or each Investor, as the case may be,
in connection with the transactions contemplated by this Agreement shall
survive the execution and delivery of this Agreement and the sale and
purchase of the Shares of payment therefor.
* * * * * *
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument as of the date first above written.
FSI MERGER CORP.
By: /s/ Anthony J. DiNovi
-----------------------------------------
Name: Anthony J. DiNovi
Title:
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument as of the date first above written.
THL Equity Shareholders:
THOMAS H. LEE EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------------
Name: Anthony J. DiNovi
Title:
THOMAS H. LEE FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
--------------------------------
Name: Anthony J. DiNovi
Title:
THL FSI EQUITY INVESTORS, L.P.
By: THL Equity Advisors III Limited Partnership, as
General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
---------------------------
Name: Anthony J. DiNovi
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp.
as General Partner
By: /s/ Anthony J. DiNovi
----------------------------
Name: Anthony J. DiNovi
DLJ Entities' Shareholders:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
-------------------------------
Name: Thompson Dean
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
-------------------------------
Name: Thompson Dean
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Thompson Dean
-------------------------------
Name: Thompson Dean
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Thompson Dean
-------------------------------
Name: Thompson Dean
Title:
DLJ DIVERSIFIED PARTNERS - A, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Thompson Dean
-------------------------------
Name: Thompson Dean
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
-------------------------------
Name: Thompson Dean
Title:
DLJ MILLENNIUM PARTNERS - A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Thompson Dean
----------------------------------------
Name: Thompson Dean
Title:
DLJMB FUNDING II, INC.
By: /s/ Thompson Dean
----------------------------------------
Name: Thompson Dean
Title:
UK INVESTMENT PLAN 1997 PARTNERS
By: Donaldson, Lufkin & Jenrette Inc.,
as general partner
By: /s/ Thompson Dean
----------------------------------------
Name: Thompson Dean
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ Thompson Dean
----------------------------------------
Name: Thompson Dean
Title:
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Thompson Dean
----------------------------------------
Name: Thompson Dean
Title:
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Thompson Dean
----------------------------------------
Name: Thompson Dean
Title:
The address for each of the DLJ Entities
listed above is:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, New York 10172
Fax: (212) 892-7272
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
By: /s/ Michael Blott
----------------------------------------
Name: Michael Blott
Title: Executive Partner
Address:
380 Madison Avenue
New York, NY 10017
Merrill Lynch Entities:
ML IBK POSITIONS, INC.
By: /s/ James V. Caruso
----------------------------------------
Name: James V. Caruso
Title: Vice President
KECALP INC.
By: /s/ Robert Tully
----------------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
MERRILL LYNCH KECALP L.P. 1997
By: KECALP Inc., as general partner
By: /s/ Robert Tully
----------------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
The address for each of the Merrill Lynch Entities
listed above is:
255 Liberty Street
New York, NY 10080
Fax: (212) 236-7584
Individual Shareholders:
By: /s/ David V. Harkins
--------------------------------
Name: David V. Harkins
By: /s/ Sheryll J. Harkins
--------------------------------
Name: The 1995 Harkins Gift Trust
By: /s/ Thomas R. Shepherd
--------------------------------
Name: Thomas R. Shepherd
Money Purchase Pension Plan
By: /s/ Scott A. Schoen
----------------------
Name: Scott A. Schoen
By: /s/ C. Hunter Boll
----------------------
Name: C. Hunter Boll
By: /s/ Scott M. Sperling
-----------------------
Name: Scott M. Sperling
By: /s/ Sperling Family Limited
---------------------------
Partnership
-----------
Name: Sperling Family Limited
Partnership
By: /s/ Anthony J. DiNovi
-----------------------
Name: Anthony J. DiNovi
By: /s/ Thomas M. Hagerty
-----------------------
Name: Thomas M. Hagerty
By: /s/ Warren C. Smith, Jr.
-------------------------
Name: Warren C. Smith,Jr.
By: /s/ Seth W. Lawry
---------------------
Name: Seth W. Lawry
By: /s/ Joseph J. Incandela
-------------------------
Name: Joseph J. Incandela
By: /s/ Kent R. Weldon
---------------------
Name: Kent R. Weldon
By: /s/ Terrence M. Mullen
------------------------
Name: Terrence M. Mullen
By: /s/ Todd M. Abbrecht
------------------------
Name: Todd M. Abbrecht
By: /s/ Wendy L. Masler
------------------------
Name: Wendy L. Masler
By: /s/ THL-CCI Limited Partnership
--------------------------------
Name: THL-CCI Limited Partnership
By: Wendy L. Master
Title: Vice President
By: /s/ Andrew D. Flaster
------------------------
Name: Andrew D. Flaster
By: /s/ Kristina A. Watts
---------------------------
Name: First Trust Co. FBO
Kristina A. Watts
By: /s/ Charles Robins
----------------------------
Name: Charles Robins
By: /s/ James Westra
----------------------------
Name: James Westra
By: /s/ Charles A. Brizius
-----------------------
Name: Charles A. Brizius
SCHEDULE I
CERTAIN NAMED INDIVIDUAL INVESTORS
- ----------------------------------
David V. Harkins
The 1995 Harkins Gift Trust
Thomas R. Shepherd Money Purchase Pension Plan (Keogh)
Scott A. Schoen
C. Hunter Boll
Scott M. Sperling
Sperling Family Limited Partnership
Anthony J. DiNovi
Thomas M. Hagerty
Warren C. Smith, Jr.
Seth W. Lawry
Joseph J. Incandela
Kent R. Weldon
Terrence M. Mullen
Todd M. Abbrecht
Wendy L. Masler
Andrew D. Flaster
First Trust Co. FBO Kristina A. Watts
Charles W. Robins
James Westra
Charles A. Brizius
EXHIBIT A -- INVESTORS STOCK SUBSCRIPTION AGREEMENT
- ---------
NUMBER OF SHARES PURCHASED BY EACH EQUITY INVESTOR
--------------------------------------------------
<TABLE>
<CAPTION>
Stockholder Number of Shares Number of Shares
of Voting of Non-Voting
Common Stock Common Stock
<S> <C> <C>
Thomas H. Lee Equity Fund III, L.P. 2,409,525 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
Thomas H. Lee Foreign Fund III, L.P. 149,094 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
THL FSI Equity Investors, L.P. 1,210,587 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
THL-CCI Limited Partnership 148,392 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
DLJ Merchant Banking Partners II, L.P. 762,579 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Merchant Banking Partners II-A, L.P. 30,369 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Offshore Partners II, C.V. 37,500 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Diversified Partners, L.P. 44,584 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Diversified Partners - A, L.P. 16,557 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Millennium Partners, L.P. 12,330 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Millennium Partners - A, L.P. 2,405 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJMB Funding II, Inc. 135,393 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
UK Investment Plan 1997 Partners 20,176 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ EAB Partners, L.P. 3,424 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ ESC II, L.P. 143,803 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ First ESC, L.P. 1,467 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Chase Equity Associates, L.P. 0 807,058
270 Park Avenue
New York, NY 10172
Merrill Lynch KECALP L.P. 1997 194,674 0
c/o KECALP Inc.
225 Liberty Street
New York, NY 10080
KECALP Inc. 37,081 0
225 Liberty Street
New York, NY 10080
ML IBK Positions, Inc. 10,363 0
Joseph S. Valenti
c/o ML IBK Positions, Inc.
225 Liberty Street
New York, NY 10080-6114
TOTAL 5,370,303 807,058
- -----
</TABLE>
EXHIBIT B -- INVESTORS STOCK SUBSCRIPTION AGREEMENT
- ---------
Stockholder Number of
----------- of Voting
Shares Common Stock
------------
David V. Harkins 17,996
The 1995 Harkins Gift Trust 2,000
Thomas R. Shepherd Money Purchase Pension Plan (Keogh) 6,249
Scott A. Schoen 11,997
C. Hunter Boll 11,997
Scott M. Sperling 5,999
Sperling Family Limited Partnership 3,999
Anthony J. DiNovi 9,998
Thomas M. Hagerty 9,998
Warren C. Smith, Jr. 9,998
Seth W. Lawry 2,999
Joseph J. Incandela 2,499
Kent R. Weldon 1,500
Terrence M. Mullen 750
Todd M. Abbrecht 750
Wendy L. Masler 415
Andrew D. Flaster 415
First Trust Co. FBO Kristina A. Watts 415
Charles W. Robins 415
James Westra 415
Charles A. Brizius 750
TOTAL 101,554
- ----- -------
EXHIBIT C
---------
(INVESTORS' AGREEMENT)
FISHER SCIENTIFIC INTERNATIONAL INC.
COMMON STOCK WARRANT ACQUISITION AGREEMENT
Dated as of January 21, 1998
TABLE OF CONTENTS
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. ORIGINAL ISSUE OF WARRANTS . . . . . . . . . . . . . . . . . . . . . . 2
2.1. Form of Warrant Certificates . . . . . . . . . . . . . . . . 2
2.2. Execution and Delivery of Warrant Certificates . . . . . . . . . 2
3. EXERCISE PRICE; EXERCISE OF WARRANTS; COMPLIANCE WITH THE
SECURITIES ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1. Exercise Price . . . . . . . . . . . . . . . . . . . . . . . 2
3.2. Exercise of Warrants . . . . . . . . . . . . . . . . . . . . 3
3.3. Expiration of Warrants . . . . . . . . . . . . . . . . . . . 3
3.4. Method of Exercise . . . . . . . . . . . . . . . . . . . . . 3
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
INVESTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Organization, Authority. . . . . . . . . . . . . . . . . . 4
4.2 Enforceability. . . . . . . . . . . . . . . . . . . . . . . 4
4.3 Non-Contravention. . . . . . . . . . . . . . . . . . . . . . . . 4
4.4 Consents, Approvals and Notices. . . . . . . . . . . . . . . 5
4.5 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.6 Investment Representations. . . . . . . . . . . . . . . . . . . 5
4.7 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. . . . . . . . . . . . . 8
5.1 Organization and Standing. . . . . . . . . . . . . . . . . . . . 8
5.2 Capitalization. . . . . . . . . . . . . . . . . . . . . . . 8
5.3 Authorization. . . . . . . . . . . . . . . . . . . . . . . . 8
5.4 Securities Act. . . . . . . . . . . . . . . . . . . . . . . 9
5.5 Non-Contravention. . . . . . . . . . . . . . . . . . . . . . . . 9
5.6 Consents, Approvals and Notices. . . . . . . . . . . . . . . 9
5.7 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. RIGHTS OF HOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7. ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1. Stock Dividend and Distributions; Stock Splits; Reverse Stock
Splits; Reclassifications . . . . . . . . . . . . . . . . . . . . 9
7.2 Other Dilutive Events. . . . . . . . . . . . . . . . . . . 10
7.3. Notice of Adjustment . . . . . . . . . . . . . . . . . . . . . 10
7.4. Statement on Warrants . . . . . . . . . . . . . . . . . . . . . 10
7.5. Fractional Interest . . . . . . . . . . . . . . . . . . . . . . 10
8. WARRANT TRANSFER BOOKS . . . . . . . . . . . . . . . . . . . . . . 11
9. WARRANT HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . 11
9.1. No Voting Rights . . . . . . . . . . . . . . . . . . . . . 11
9.2. Right of Action . . . . . . . . . . . . . . . . . . . . . . . . 11
10. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10.1. Reservation of Shares . . . . . . . . . . . . . . . . . . 12
10.2. Determinations by Board of Directors . . . . . . . . . . 12
11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.1. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 12
11.2. Surrender of Certificates . . . . . . . . . . . . . . . . 12
11.3. Mutilated, Destroyed, Lost and Stolen Warrant Certificates 12
11.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11.5. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 13
11.6. Persons Benefitting . . . . . . . . . . . . . . . . . . . 13
11.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 13
11.8. Amendments . . . . . . . . . . . . . . . . . . . . . . . . 14
11.9. Headings . . . . . . . . . . . . . . . . . . . . . . . . . 14
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
EXHIBIT A Institutional Investors' Schedule of Warrants to be Acquired
EXHIBIT B Individual Investors' Schedule of Warrants to be Acquired
EXHIBIT C Form of Voting Warrant Certificate
EXHIBIT D Form of Non-Voting Warrant Certificate
COMMON STOCK WARRANT ACQUISITION AGREEMENT
AGREEMENT dated as of January 21, 1998 between Fisher
Scientific International Inc., a Delaware corporation (the "Company"), and
(i) each of the investors listed on Exhibit A attached hereto (individually,
an "Institutional Investor" and collectively, "Institutional Investors") and
(ii) those persons listed on Exhibit B (each, an "Individual Investor" and
with (i) above, "Investors").
In connection with the commitment by the Investors to purchase
cumulative preferred stock of the Company (the "Preferred Stock"), prior to
the execution of the Second Amended and Restated Agreement and Plan of
Merger, dated November 14, 1997, as amended, between FSI Merger Corp. ("FSI")
and the Company (the "Merger Agreement") pursuant to which FSI will be merged
with and into the Company (the "Merger"), the Company has agreed to issue to
the Investors warrant certificates evidencing 516,663 warrants (the
"Warrants") to purchase the number of shares of the voting common stock, par
value $0.01 per share ("Voting Common Stock") and non-voting common stock,
par value $.01 per share ("Non-Voting Common Stock" and, together with the
Voting Common Stock, "Common Stock"), of the Company set forth opposite each
Investor's name on Exhibits A and B (the "Shares"). The certificates
evidencing Warrants to purchase Voting Common Stock ("Voting Common Stock
Certificates") and certificates evidencing Warrants to purchase Non-Voting
Common Stock ("Non-Voting Common Stock Certificates" and, collectively with
Voting Common Stock Certificates, "Warrant Certificates") are attached hereto
as Exhibits C and D.
In consideration of the foregoing, or the purpose of defining
the terms and provisions of the Warrants and the respective rights and
obligations thereunder of the Company and the record holders of the Warrants,
the Company and each Investor hereby agrees as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
Company: the meaning set forth in the preamble to this
-------
Agreement and its successors and assigns.
Exercise Price: the meaning set forth in Section 3.1.
--------------
Expiration Date: the tenth anniversary of this Agreement.
---------------
Holders: from time to time, the holders of the
-------
Warrants and, unless otherwise provided or indicated herein, the holders of
the Underlying Shares.
Investors: the meaning set forth in the preamble to this
---------
Agreement.
Investors' Agreement: the Investors' Agreement, dated as of
--------------------
even date herewith, by and among the Company, the Investors and certain other
parties named therein.
Person: any individual, corporation, partnership, joint
------
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
Securities Act: the Securities Act of 1933, as amended.
--------------
Shares: the meaning set forth in Article I of the Investors'
------
Agreement.
Underlying Shares: the shares of Common Stock issuable or
-----------------
issued upon the exercise of the Warrants.
Warrant Certificates: the meaning set forth in the preamble to
--------------------
this Agreement.
Warrants: the meaning set forth in the preamble to this
--------
Agreement.
2. ORIGINAL ISSUE OF WARRANTS.
2.1. Form of Warrant Certificates. The Warrant
----------------------------
Certificates shall be in registered form only, and shall be dated the date on
which executed by the Company and may have such legends and endorsements
typed, stamped, printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation pursuant thereto or with any rule or regulation of any securities
exchange on which the Warrants may be listed, or to conform to usage.
2.2. Execution and Delivery of Warrant Certificates. Warrant
----------------------------------------------
Certificates evidencing Warrants to purchase a number of duly authorized,
validly issued, fully paid and nonassessable Shares shall be executed, on the
date of this Agreement, by the Company and delivered to and issued in the
name of each Investor. The Warrant Certificates shall be executed on behalf
of the Company by its President or by any of its Vice Presidents, either
manually or by facsimile signature printed thereon. In case any
officer of the Company whose signature shall have been placed upon any of the
Warrant Certificates shall cease to be such officer of the Company before
issue and delivery thereof, such Warrant Certificates may, nevertheless, be
issued and delivered with the same force and effect as though such person had
not ceased to be such officer of the Company.
3. EXERCISE PRICE; EXERCISE OF WARRANTS; COMPLIANCE WITH THE
SECURITIES ACT.
3.1. Exercise Price. Each Warrant Certificate shall
--------------
entitle the Holder thereof, subject to the provisions of this Agreement, to
receive one share of either Voting Common Stock or Non-Voting Common Stock
for each Warrant represented thereby at an exercise price (the "Exercise
Price") of $48.25 per share, subject to adjustment as herein provided.
3.2. Exercise of Warrants. The Warrants shall be
--------------------
exercisable in whole or in part on or prior to the Expiration Date.
3.3. Expiration of Warrants. The Warrants shall terminate
----------------------
and become void at the close of business on the Expiration Date.
3.4. Method of Exercise.
------------------
(a) In order to exercise a Warrant the Holder thereof must
surrender the Warrant Certificate evidencing such Warrant to the Company at
its principal office, together with the Exercise Subscription Form on the
reverse of or attached to the Warrant Certificate duly executed, accompanied
by payment, in cash or by certified or by official bank check payable to the
order of the Company, in the amount equal to the Exercise Price multiplied by
the number of Warrants being exercised. As an alternative to the payment of
the aggregate Exercise Price in the manner set forth in Section 3.4, the
Holder may (i) deliver as payment, in whole or part, of the aggregate
Exercise Price, Common Stock to the Company, in which case an amount equal to
the aggregate "fair market value" on the date of exercise of the Common Stock
delivered shall be applied towards the payment of the aggregate Exercise
Price and/or (ii) with the approval of the Board of Directors of the Company,
instruct the Company, by written notice accompanying the surrender of the
Warrant and the Exercise Subscription Form, to apply to the payment of all or
a portion of the aggregate Exercise Price such number of shares of Common
Stock otherwise issuable to such Holder upon such exercise as shall be
specified in such notice, in which case an amount equal to the aggregate
"fair market value" of the specified number of shares on the date of exercise
shall be deemed to have been paid to the Company and the number of shares
issuable upon such exercise shall be reduced by such specified number. If
the aggregate Exercise Price exceeds the aggregate fair market value
of the Common Stock delivered or applied pursuant to (i) and/or (ii) above,
the Holder shall pay to the Company, in the manner set forth in Section 3.4,
an amount equal to such excess. Notwithstanding anything to the contrary in
this Section 3.4, if the aggregate fair market value of the Common Stock
delivered or applied pursuant to (i) and/or (ii) above exceeds the aggregate
Exercise Price, in no event shall the Holder be entitled to receive any
amounts from the Company. The "fair market value" means, with respect to
Common Stock, the fair market value of such Common Stock determined by such
methods or procedures as shall be established from time to time by the
Company. Unless otherwise determined by the Board in good faith, the per
share fair market value of Common Stock as of a particular date shall mean,
if public shareholders hold, as of the last day of the prior fiscal quarter,
shares of Common Stock worth $100,000,000 or more (as determined by the
Company), (i) the closing sales price per share of Common Stock on the
national securities exchange on which the Common Stock is principally traded,
for the last preceding date on which there was a sale of such Common Stock on
such exchange, or (ii) if the shares of Common Stock are then traded in an
over-the-counter market, the average of the closing bid and asked prices for
the shares of Stock in such over-the-counter market for the last preceding
date on which there was a sale of such Stock in such market, or if public
shareholders do not hold, as of the last day of the prior fiscal quarter,
shares of Common Stock worth more than $100,000,000 or if the shares of
Common Stock are not then listed on a national securities exchange or traded
in an over-the-counter market, such value as the Company, in its sole
discretion, shall determine in good faith.
(b) If fewer than all the Warrants represented by a Warrant
Certificate are surrendered for exercise, such Warrant Certificate shall be
surrendered and a new Warrant Certificate of the same tenor and for the
number of Warrants that were not surrendered shall be executed by the
Company. The new Warrant Certificate shall be registered in such name or
names as may be directed in writing by the Holder and delivered to the Person
or Persons entitled to receive the same.
(c) Upon exercise of a Warrant in conformity with the foregoing
provisions, the Company shall issue or cause to be issued in the name of and
delivered to the Holder of such Warrant or, subject to Section 11.1, as such
Holder (upon payment by such Holder of any applicable transfer taxes) may
direct, a certificate or certificates for the number of duly authorized,
validly issued, fully paid and nonassessable Shares to which such Holder
shall be entitled upon such exercise together with an amount in cash in lieu
of any fraction of a share as provided in Section 7.5.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTORS.
Each Investor represents and warrants, in each instance as to
itself only and not as to any other Investor, to the Company that:
4.1 Organization, Authority. Each Institutional Investor
-----------------------
is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization. Each Individual Investor has the legal
capacity to enter into this Agreement. Each Investor has the power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery by each Investor of this
Agreement and the consummation by such Investor of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of such Investor.
4.2 Enforceability. This Agreement, when executed and
--------------
delivered by all parties hereto, will constitute the valid and legally
binding obligation of each Investor, enforceable against each Investor in
accordance with its terms, except to the extent enforceability may be limited
by bankruptcy laws, insolvency laws, reorganization laws, moratorium laws or
other laws affecting creditors' rights generally and except to the extent
enforceability may be limited by general equitable principles. Each Investor
entered into and is bound by this Agreement in satisfaction of a commitment
made by such Investor to purchase Preferred Stock.
4.3 Non-Contravention. The execution and delivery of this
-----------------
Agreement by each Investor does not, and the consummation by such Investor of
the transactions contemplated hereby and the performance by such Investor of
the obligations which it is obligated to perform hereunder will not, (a)
violate any provision of the articles of association, by-laws, agreement of
limited partnership or other organizational documents of such Investor, (b)
violate in any material respect any material law, regulation, rule, order,
judgment or decree to which such Investor is subject, (c) violate in any
material respect, result in the termination or the acceleration of, or
conflict with in any material respect or constitute a material default under,
any material mortgage, indenture, lease, franchise, license, permit,
agreement or instrument (each, a "Contract") to which such Investor is a
party or by which any of its assets or properties are bound or (d) result in
the creation of any lien or other encumbrance on any of the material assets or
properties of such Investor or the loss of any material license or other
material contractual right with respect thereto.
4.4 Consents, Approvals and Notices. The execution and
-------------------------------
delivery of this Agreement by each Investor and the consummation by each
Investor of the transactions contemplated hereby does not require any (a)
material consent, authorization, order or approval of, filing or registration
with, or notice to, any governmental or regulatory authority, which has not
otherwise been obtained or (b) material consent, authorization, approval,
waiver, order, license, certificate or permit or act of or from, or notice
to, any party to any Contract to which such Investor is a party or by which
any of its assets or properties are bound, which has not been otherwise
obtained.
4.5 Litigation. There is no action, suit or proceeding pending
----------
or, to the knowledge of any Investor, threatened, before any court against
such Investor which challenges the validity or the propriety of the
transactions contemplated by this Agreement.
4.6 Investment Representations.
--------------------------
(a) This Agreement is made in reliance upon each Investor's
representations to the Company, which by acceptance hereof each Investor
hereby confirms, that: (i) the Warrants and the Underlying Shares will
be acquired by such Investor for investment only, for its own account
and not as a nominee or agent and not with a view to the sale or
distribution of any part thereof in violation of applicable federal and
state securities laws; and (ii) such Investor has no current intention
of selling, granting participation in or otherwise distributing the
Warrants or Underlying Securities in violation of applicable federal and
state securities laws. By executing this Agreement, each Investor
further represents that it does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person, or to any third person, with respect to
any of the Warrants or Underlying Shares in violation of applicable
federal and state securities laws.
(b) Each Investor understands that the Warrants and Underly-
ing Shares have not been registered under the Securities Act on the
basis that the sale provided for in this Agreement and the issuance of
securities hereunder are exempt from registration under the Securities
Act pursuant to Section 4(2) thereof and regulations issued thereunder,
and that the Company's reliance on such exemption is predicated on the
representations and warranties of each Investor set forth herein.
(c) Each Investor represents that it has, either alone or
together with the assistance of a "purchaser representative" (as that
term is defined in Regulation D promulgated under the Securities Act),
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of its investment in the
Company. Each Investor further represents that it is familiar with the
business and financial condition, properties, operations and prospects
of the Company and that it has had access, during the course of the
transactions contemplated hereby and prior to its acquisition of
Warrants or purchase of Underlying Shares, to the same kind of informa-
tion that is specified in Part I of a registration statement under the
Securities Act, and that it has had the opportunity to ask questions of,
and receive answers from, the Company concerning the terms and
conditions of the investment and to obtain additional information (to
the extent the Company possessed such information or could acquire it
without unreasonable effort or expense) necessary to verify the accuracy
of any information furnished to such Investor or to which such Investor
has had access. Each Investor has made, either alone or together with its
advisors, such independent investigation of the Company as each Investor
deems to be, or its advisors deem to be, necessary or advisable in
connection with this investment. Each Investor understands that no
federal or state agency has passed upon this investment or upon the
Company, nor has any such agency made any finding or determination as to
the fairness of this investment.
(d) Each Investor represents that it will not sell, transfer
or otherwise dispose of the Warrants or the Underlying Shares without
registration under the Securities Act and applicable state securities
laws, or an exemption therefrom. Each Investor understands that, in the
absence of an effective registration statement covering the Warrants or
the Underlying Shares or an available exemption from registration under
the Securities Act and applicable state securities laws, the Warrants or
Underlying Shares must be held indefinitely. In particular, each
Investor acknowledges that it is aware that the Warrants and Underlying
Shares may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of such rule are met. Among
the current conditions for use of Rule 144 by certain holders is the
availability to the public of current information about the Company.
Each Investor represents that, in the absence of an effective
registration statement covering the Warrants or Underlying Shares or an
exemption from the Securities Act, it will sell, transfer or otherwise
dispose of the Warrants and Underlying Shares only in a manner
consistent with its representations set forth herein and then only in
accordance with the Investors' Agreement referred to in Section 1.
(e) Each Investor represents that it (i) is capable of
bearing the economic risk of holding the unregistered Warrants or
Underlying Shares for an indefinite period of time and has adequate
means for providing for its current needs and contingencies, (ii) can
afford to suffer a complete loss of this investment and (iii) under-
stands all risk factors related to the Warrants or Underlying Shares.
(f) Each Investor understands that the Warrants and the
Underlying Shares involves a high degree of risk, that there is no
established market for the Warrants or Underlying Shares and that it is
not likely that any public market for the Warrants will develop in the
near future.
(g) Each Investor represents that neither it nor anyone
acting on its behalf has paid any commission or other remuneration to
any person in connection with the Warrants and Underlying Shares.
(h) Independent of the additional restrictions on the
transfer of the shares of Common Stock contained in the Investors'
Agreement referred to in Section 1, each Investor agrees that it will
not transfer, dispose of or pledge any of the Warrants or Underlying
Shares other than pursuant to an effective registration statement under
the Securities Act and applicable state securities laws, unless and
until (i) such Investor shall have notified the Company of the proposed
transfer, disposition or pledge and shall have furnished the Company
with a statement of the circumstances surrounding the proposed transfer,
disposition or pledge and (ii) if reasonably requested by the Company
and at the expense of each Investor or its transferee, such Investor
shall have furnished to the Company an opinion of counsel reasonably
satisfactory (as to counsel, which in the case of the Institutional
Investors, may include internal counsel, and as to substance) to the
Company and its counsel that such proposed transfer, disposition or
pledge may be made without registration of such Warrants or Underlying
Shares under the Securities Act and applicable state securities laws.
(i) Legends; Stop Transfer.
----------------------
i. Each Investor acknowledges that all stock certificates
issues pursuant to the exercise of the Warrants shall bear the following
legend:
"TRANSFER RESTRICTED
-------------------
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE THEREWITH.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER,
OF AN INVESTORS' AGREEMENT DATED AS OF JANUARY 21, 1998, AS AMENDED
FROM TIME TO TIME, AND NONE OF SUCH SECURITIES, OR ANY INTEREST
THEREIN, SHALL BE TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF EXCEPT AS PROVIDED IN THAT AGREEMENT. A COPY OF THE
INVESTORS' AGREEMENT IS ON FILE WITH THE SECRETARY OF THE COMPANY
AND WILL BE MAILED TO ANY PROPERLY INTERESTED PERSON WITHOUT CHARGE
WITHIN FIVE (5) DAYS AFTER RECEIPT OF A WRITTEN REQUEST."
ii. Each Investor acknowledges that all certificates repre-
senting Warrants shall bear the following legend:
"TRANSFER RESTRICTED
-------------------
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMEND
ED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH.
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
ARE SUBJECT TO THE TERMS AND CONDITIONS, INCLUDING CERTAIN
RESTRICTIONS ON TRANSFER, OF AN INVESTORS' AGREEMENT DATED AS OF
JANUARY 21, 1998, AS AMENDED FROM TIME TO TIME, AND NONE OF SUCH
SECURITIES, OR ANY INTEREST THEREIN, SHALL BE TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT AS PROVIDED IN THAT
AGREEMENT. A COPY OF THE INVESTORS' AGREEMENT IS ON FILE WITH THE
SECRETARY OF THE COMPANY AND WILL BE MAILED TO ANY PROPERLY
INTERESTED PERSON WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT
OF A WRITTEN REQUEST."
iii. In addition, the Company shall make a notation regarding
the restrictions on transfer of the Warrants and Underlying Shares in
its stock books, and the Warrants and Underlying Shares shall be
transferred on the books of the Company only if transferred or sold
pursuant to an effective registration statement under the Securities Act
and applicable state securities laws covering such Warrants or
Underlying Shares or pursuant to and in compliance with the provisions
of Section 4.6(h) hereof. A copy of this Agreement, together with any
amendments thereto, shall remain on file with the Secretary of the
Company and shall be available for inspection to any properly interested
person without charge within five days after the Company's receipt of a
written request therefor.
4.7 Brokers. No broker, investment banker, financial advisor
-------
or other person or entity is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
or on behalf of any Investor or any of its affiliates.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Investor that:
5.1 Organization and Standing. The Company is a corporation
-------------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted.
5.2 Capitalization. The authorized capital of the Company,
--------------
as of the Merger, will consist of 50,000,000 shares of Common Stock, par
value $.01 per share, 15,000,000 shares of Preferred Stock, par value $.01
per share of which 500,000 shares are designated Series A Junior
Participating Preferred Stock, par value $.01 per share. As
of the close of business on January 20, 1998, 20,356,764 shares of the
Company's Common Stock were issued and outstanding, and no such shares were
held in treasury. The Company has no shares of Preferred Stock issued and
outstanding. As of January 20, 1998, except for (i) 3,555,774 shares
reserved for issuance pursuant to outstanding Options and rights granted
under the Stock Plans, and (ii) 500,000 shares of Junior Preferred Stock
reserved for issuance upon exercise of certain rights, there are not now, and
following the Merger, there will not be, any existing options, warrants,
calls, subscriptions, or other rights, or other agreements or commitments,
obligating the Company to issue, transfer or sell any shares of capital stock
of the Company or any of its subsidiaries.
5.3 Authorization. All corporate action on the part of the
-------------
Company necessary for the authorization, execution, delivery and performance
of this Agreement by the Company and for the authorization, issuance and
delivery of the Shares being sold under this Agreement, has been taken. This
Agreement, when executed and delivered by all parties hereto, shall
constitute the valid and legally binding obligation of the Company and shall
be enforceable against the Company in accordance with its terms, except to
the extent enforceability may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors'
rights generally and except to the extent enforceability may be limited by
general equitable principles.
5.4 Securities Act. The sale of Warrants in accordance
--------------
with the terms of this Agreement (assuming the accuracy of the
representations and warranties of the Investors contained in Section 4) is
exempt from the registration requirements of the Securities Act.
5.5 Non-Contravention. The execution and delivery of this
-------------------
Agreement by each Company does not, and the consummation by the Company of
the transactions contemplated hereby and the performance by the Company of
the obligations which it is obligated to perform hereunder will not, (a)
violate any provision of the articles of association, by-laws, agreement of
limited partnership or other organizational documents of the Company, (b)
violate in any material respect any material law, regulation, rule, order,
judgment or decree to which the Company is subject, (c) violate in any
material respect, result in the termination or the acceleration of, or
conflict with in any material respect or constitute a material default under,
any material Contract to which the Company is a party or by which any of its
assets or properties are bound or (d) result in the creation of any lien or
other encumbrance on any of the material assets or properties of the Company
or the loss of any material license or other material contractual right with
respect thereto.
5.6 Consents, Approvals and Notices. The execution and
-------------------------------
delivery of this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby does not require any (a) material
consent, authorization, order
or approval of, filing or registration with, or notice to, any governmental
or regulatory authority, which has not otherwise been obtained or (b)
material consent, authorization, approval, waiver, order, license,
certificate or permit or act of or from, or notice to, any party to any
Contract to which the Company is a party or by which any of its assets or
properties are bound, which has not been otherwise obtained.
5.7 Litigation. There is no action, suit or proceeding pending
----------
or, to the knowledge of the Company, threatened, before any court against the
Company which challenges the validity or the propriety of the transactions
contemplated by this Agreement.
6. RIGHTS OF HOLDERS.
Each Holder hereby agrees that if such Holder is not a party to the
Investors' Agreement, then such Holder will take all necessary and
appropriate steps to become a party to the Investors' Agreement. For this
purpose, the Warrants and such Underlying Shares shall be subject to the
restrictions, and entitled to the benefits, to the extent provided in the
Investors' Agreement with respect to Shares held by a "Shareholder" (as
defined in the Investors' Agreement).
7. ADJUSTMENTS.
7.1. Stock Dividend and Distributions; Stock Splits;
-----------------------------------------------
Reverse Stock Splits; Reclassifications. In this case the Company shall
- ---------------------------------------
(i) pay a dividend or make any other distribution with respect to its Shares
in shares of its capital stock, (ii) subdivide its outstanding Shares, (iii)
combine its outstanding Shares into a smaller number of shares, (iv) issue
any shares of its capital stock in a reclassification of the Shares
(including any such reclassification in connection with a merger,
consolidation or other business combination in which the Company is the
surviving corporation) or (v) in the event the Company shall merge, combine
or engage in a share exchange or similar corporate transaction with any other
entity in which the Company is not the surviving corporation, the number of
Shares issuable upon exercise of each Warrant immediately prior to the record
date for such dividend or distribution or the effective date of such
subdivision, combination, reclassification or other transaction shall be
adjusted so that the Holder of each Warrant shall thereafter be entitled to
receive the kind and number of Shares or other securities of the Company that
such Holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this Section 7.1 shall
become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
7.2 Other Dilutive Events. In case any event shall occur
---------------------
as to which the provisions of Section 7.1 are not strictly applicable but the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Agreement in accordance with the essential intent and
principles of such section, then, in each such case, the Company shall
appoint a firm of independent certified public accountants of recognized
national standing (which may be the regular auditors of the Company), which
shall give their opinion upon the adjustment, if any, on a basis consistent
with the essential intent and principles established in Section 7.1 hereto,
necessary to preserve, without dilution, the purchase rights represented by
each Warrant. Upon receipt of such opinion, the Company will promptly mail a
copy thereof to the Holder of each Warrant and shall make the adjustments
described therein.
7.3. Notice of Adjustment. Whenever the number of Shares
--------------------
issuable upon the exercise of a Warrant is adjusted, as herein provided, the
Company shall mail by first class mail, postage prepaid, to each Holder,
notice of such adjustment or adjustments setting forth the number of Shares
or other stock or property issuable upon the exercise of each Warrant after
such adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was
made.
7.4. Statement on Warrants. Irrespective of any adjustment in
---------------------
the number or kind of shares issuable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
7.5. Fractional Interest. The Company shall not be required to
-------------------
issue fractional Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Holder, the number of full Shares which shall be issuable upon such exercise
thereof shall be computed on the basis of the aggregate number of Shares
acquirable on exercise of the Warrants so presented. If any fraction of a
Shares would, except for the provisions of this Section, be issuable on the
exercise of any Warrant (or specified portion thereof), the Company shall pay
an amount in cash calculated by it to be equal to the then current market
value, as determined in good faith by the Company, per Share multiplied by
such fraction computed to the nearest whole cent.
8. WARRANT TRANSFER BOOKS.
The Warrant Certificates shall be issued in registered form only.
The Company shall keep a register at its office in which, subject to such
reasonable regulations as it may prescribe, it shall provide for the
registration of Warrant Certificates and of transfers or exchanges of Warrant
Certificates as herein provided. At the option of the
Holder, Warrant Certificates may be exchanged at such office, and upon
payment of the charges hereinafter provided. Whenever any Warrant
Certificates are so surrendered for exchange, the Company shall execute the
Warrant Certificates that the Holder making the exchange is entitled to
receive. All Warrant Certificates issued upon any registration of transfer
or exchange of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificates surrendered for such
registration of transfer or exchange. Every Warrant Certificate surrendered
for registration of transfer or exchange shall (if so required by the
Company) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and duly executed by the Holder
thereof or his attorney duly authorized in writing. No service charge shall
be made for any registration of transfer or exchange of Warrant Certificates.
The Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration
of transfer or exchange of Warrant Certificates. Any Warrant Certificate
when duly endorsed in blank shall be deemed negotiable and when a Warrant
Certificate shall have been so endorsed, the Holder thereof may be treated by
the Company and all other persons dealing therewith as the absolute owner
thereof for any purpose and as the Person entitled to exercise the rights
represented thereby, or to the transfer thereof on the register of the
Company, any notice to the contrary notwithstanding; but until such transfer
on such register, the Company may treat the registered Holder thereof as the
owner for all purposes.
9. WARRANT HOLDERS.
9.1. No Voting Rights. Prior to the exercise of the
----------------
Warrants, no Holder of a Warrant Certificate, as such, shall be entitled to
any rights of a stockholder of the Company, including, without limitation,
the right to vote, to consent, to exercise any preemptive right, to receive
any notice of meetings of shareholders for the election of directors of the
Company or any other matter or to receive any notice of any proceedings of
the Company, except as may be specifically provided for herein.
9.2. Right of Action. All rights of action in respect of this
---------------
Agreement are vested in the Holders of the Warrants, and any Holder of any
Warrant, without the consent of the Holder of any other Warrant, may, in such
Holder's own behalf and for such Holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such Holder's right to
exercise, exchange or tender for purchase such Holder's Warrants in the
manner provided in this Agreement.
10. COVENANTS.
10.1. Reservation of Shares. The Company covenants that it
---------------------
will at all times reserve and keep available, free from preemptive rights,
out of its authorized but unissued Shares, solely for the purpose of issue
upon exercise of Warrants as herein provided, such number of shares of shares
of Voting Common Stock or Non-Voting Common Stock as shall then be issuable
upon the exercise of all outstanding Warrants. The Company covenants that
all shares of Shares which shall be so issuable shall, upon such issue, be
duly and validly issued and fully paid and nonassessable.
10.2. Determinations by Board of Directors. All
------------------------------------
determinations by the Board of Directors of the Company under the provisions
of this Agreement shall be made in good faith with due regard to the
interests of the Holder of a Warrant, and in accordance with good financial
practice.
11. MISCELLANEOUS.
11.1. Payment of Taxes. The Company shall pay all issuance
----------------
or transfer taxes and similar governmental charges that may be imposed on the
Company in connection with the issuance of the Warrants or any securities
deliverable upon exercise of Warrants with respect thereto. The Company
shall not be required, however, to pay any tax or other governmental charge
imposed in connection with any transfer involved in the issue of any
certificate for Underlying Shares or payment of cash to any Person other than
the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or
governmental charge has been paid or it has been established to the Company's
satisfaction that no such tax or other governmental charge is due.
11.2. Surrender of Certificates. Any Warrant Certificate
-------------------------
surrendered for exercise shall be delivered to the Company, promptly
cancelled and not reissued by the Company. The Company shall destroy such
cancelled Warrant Certificates.
11.3. Mutilated, Destroyed, Lost and Stolen Warrant
---------------------------------------------
Certificates.
- ------------
(a) If (i) any mutilated Warrant Certificate is surrendered to the
Company or (ii) the Company receives evidence to its satisfaction of the
destruction, loss or theft of any Warrant Certificate, and there is delivered
to the Company such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Company that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, in exchange for any such mutilated Warrant Certificate or in
lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant
Certificate of like tenor and for a like aggregate number of Warrants.
(b) Upon the issuance of any new Warrant Certificate under this
Section 11.3. the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and other expenses (including the reasonable fees and expenses of
counsel to the Company) in connection therewith.
(c) Every new Warrant Certificate executed and delivered pursuant
to this Section 11.3 in lieu of any destroyed, lost or stolen Warrant
Certificate shall constitute an original contractual obligation of the
Company, whether or not the destroyed, lost or stolen Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder.
(d) The provisions of this Section 11.3 are exclusive and shall
preclude (to the extent lawful) all other rights or remedies with respect to
the replacement of mutilated, destroyed, lost or stolen Warrant Certificates.
11.4 Notices. All notices and other communications necessary or
-------
contemplated under this Agreement shall be in writing and shall be delivered
in the manner specified herein. All notices shall be deemed to have been
duly given upon confirmation by telecopy if delivered by telecopy or by hand,
or one day after sending by overnight delivery service, or five days after
sending by certified mail, postage prepaid, return receipt requested to the
respective addresses of the parties set forth below:
i. for notices and communications to the Company:
Fisher Scientific International Inc.
Liberty Lane
Hampton, N.H. 03842
Fax: (603) 929-2703
Attention: Todd DuChene, Esq.
ii. for notices and communications to (i) each Institutional
Investor, to its address as set forth under each Institutional
Investor's name in Exhibit A, and (ii) each
---------
Individual Investor as set forth in Exhibit B hereto, to his attention in
care of Thomas H. Lee Company, 75 State Street, Boston, Massachusetts 02109.
By notice complying with the foregoing provisions of this Section 11.4, each
party shall have the right to change the notice address for future notices
and communications to such party.
11.5. Applicable Law. This Agreement and each Warrant
--------------
issued hereunder and all rights arising hereunder shall be governed by the
laws of the State of Delaware.
11.6. Persons Benefitting. This Agreement shall be binding
-------------------
upon and inure to the benefit of the Company and its respective successors,
assigns, beneficiaries, executors and administrators, and the Holders from
time to time of the Warrants. Nothing in this Agreement is intended or shall
be construed to confer upon any Person, other than the Company and the
Holders of the Warrants, any right, remedy or claim under or by reason of
this Agreement or any part hereof.
11.7. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same instrument.
11.8. Amendments. The Company may, without the consent of
----------
the Holders of the Warrants, by supplemental agreement or otherwise, make any
changes or corrections in this Agreement that it shall have been advised by
counsel (a) are required to cure any ambiguity or to correct or supplement
any provision herein which may be defective or inconsistent with any other
provision herein or (b) add to the covenants and agreements of the Company
for the benefit of the Holders, or surrender any rights or power reserved to
or conferred upon the Company in this Agreement; provided that, in each case,
such changes or corrections shall not --------
adversely affect the interests of the Holders in any material respect.
11.9. Headings. The descriptive headings of the several
--------
Sections of this Agreement are inserted for convenience and shall not control
or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duty executed, as of the day and year first above written.
FISHER SCIENTIFIC INTERNATIONAL INC.
By: /s/ Todd M. DuChene
--------------------------------------------
Name: Todd M. DuChene
Title: Vice President - General Counsel
and Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument as of the date first above written.
THL Equity Shareholders:
THOMAS H. LEE EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
-----------------------------------------------
Name: Anthony J. DiNovi
Title:
THOMAS H. LEE FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
-----------------------------------------------
Name: Anthony J. DiNovi
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp,
as General Partner
By: /s/ Anthony J. DiNovi
-----------------------------------------------
Name: Anthony J. DiNovi
Title:
THL FSI EQUITY INVESTORS, L.P.
By: THL Equity Advisors III
Limited Partnership, as
General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Anthony J. DiNovi
-----------------------------------------------
Name: Anthony J. DiNovi
Title:
DLJ Entities' Shareholders:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ DIVERSIFIED PARTNERS - A, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ MILLENNIUM PARTNERS - A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJMB FUNDING II, INC.
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
UK INVESTMENT PLAN 1997 PARTNERS
By: Donaldson, Lufkin & Jenrette Inc.,
as general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Kirk B. Wortman
-----------------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
The address for each of the DLJ Entities listed
above is:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, New York 10172
Fax: (212) 892-7272
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
By: /s/ Michael Blott
----------------------------------------
Name: Michael Blott
Title: Executive Partner
Address:
380 Madison Avenue
New York, NY 10017
Merrill Lynch Entities:
ML IBK POSITIONS, INC.
By: /s/ James V. Caruso
----------------------------------------
Name: James V. Caruso
Title: Vice President
KECALP INC.
By: /s/ Robert Tully
----------------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
MERRILL LYNCH KECALP L.P. 1997
By: KECALP Inc., as general partner
By: /s/ Robert Tully
----------------------------------------
Name: Robert Tully
Title: Vice President and
Treasurer
The address for each of the Merrill Lynch Entities
listed above is:
255 Liberty Street
New York, NY 10080
Fax: (212) 236-7584
Individual Shareholders:
By: /s/ David V. Harkins
--------------------------------
Name: David V. Harkins
By: /s/ Sheryll J. Harkins
--------------------------------
Name: The 1995 Harkins Gift Trust
By: /s/ Thomas R. Shepherd
--------------------------------
Name: Thomas R. Shepherd
Money Purchase Pension Plan
By: /s/ Scott A. Schoen
--------------------------------
Name: Scott A. Schoen
By: /s/ C. Hunter Boll
--------------------------------
Name: C. Hunter Boll
By: /s/ Scott M. Sperling
--------------------------------
Name: Scott M. Sperling
By: /s/ Sperling Family Limited Partnership
---------------------------------------
Name: Sperling Family Limited
Partnership
By: /s/ Anthony J. DiNovi
--------------------------------
Name: Anthony J. DiNovi
By: /s/ Thomas M. Hagerty
--------------------------------
Name: Thomas M. Hagerty
By: /s/ Warren C. Smith, Jr.
--------------------------------
Name: Warren C. Smith,Jr.
By: /s/ Seth W. Lawry
--------------------------------
Name: Seth W. Lawry
By: /s/ Joseph J. Incandela
--------------------------------
Name: Joseph J. Incandela
By: /s/ Kent R. Weldon
--------------------------------
Name: Kent R. Weldon
By: /s/ Terrence M. Mullen
--------------------------------
Name: Terrence M. Mullen
By: /s/ Todd M. Abbrecht
---------------------------------
Name: Todd M. Abbrecht
By: /s/ Wendy L. Masler
--------------------------------
Name: Wendy L. Masler
By: /s/ THL-CCI Limited Partnership
--------------------------------
Name: THL-CCI Limited Partnership
By: Wendy L. Master
Title: Vice President
By: /s/ Andrew D. Flaster
--------------------------------
Name: Andrew D. Flaster
By: /s/ Kristina A. Watts
--------------------------------
Name: First Trust Co. FBO
Kristina A. Watts
By: /s/ Charles Robins
--------------------------------
Name: Charles Robins
By: /s/ James Westra
--------------------------------
Name: James Westra
By: /s/ Charles A. Brizius
--------------------------------
Name: Charles A. Brizius
EXHIBIT A -- INVESTORS COMMON STOCK WARRANT ACQUISITION AGREEMENT
---------
NUMBER OF WARRANTS ACQUIRED BY EACH INSTITUTIONAL INVESTOR
----------------------------------------------------------
<TABLE>
<CAPTION> Stockholder Warrants to Purchase Warrants to Purchase
Shares of Voting Shares of Non-Voting
Common Stock Common Stock
<S> <C> <C>
Thomas H. Lee Equity Fund III, L.P. 198,268 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
Thomas H. Lee Foreign Fund III, L.P. 12,268 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
THL FSI Equity Investors, L.P. 99,614 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
THL-CCI Limited Partnership 12,209 0
c/o Thomas H. Lee Co.
75 State Street
Boston, MA 02109
DLJ Merchant Banking Partners II, L.P. 62,749 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Merchant Banking Partners II-A, L.P. 2,499 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Offshore Partners II, C.V. 3,086 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Diversified Partners, L.P. 3,669 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Diversified Partners - A, L.P. 1,362 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Millennium Partners, L.P. 1,015 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ Millennium Partners - A, L.P. 198 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ MB Funding II, Inc. 11,140 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
UK Investment Plan 1997 Partners 1,660 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ EAB Partners, L.P. 282 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ ESC II, L.P. 11,833 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
DLJ First ESC, L.P. 121 0
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Chase Equity Associates, L.P. 0 66,409
270 Park Avenue
New York, NY 10172
Merrill Lynch KECALP L.P. 1997 16,019 0
KECALP Inc.
225 Liberty Street
New York, NY 10080
Common Stock
KECALP Inc. 3,051 0
c/o KECALP Inc.
225 Liberty Street
New York, NY 10080
ML IBK Positions, Inc. 853 0
Joseph S. Valenti
c/o ML IBK Positions, Inc.
225 Liberty Street
New York, NY 10080-6114
____________ ___________
TOTAL 441,896 66,409
</TABLE>
______
EXHIBIT B --INVESTORS COMMON STOCK WARRANT ACQUISITION AGREEMENT//
_________
Stockholder Warrants to
----------- Purchase Shares of Voting
Common Stock
-----------------
David V. Harkins 1,481
The 1995 Harkins Gift Trust 165
Thomas R. Shepherd Money Purchase Pension Plan (Keogh 514
Scott A. Schoen 987
C. Hunter Boll 987
Scott M. Sperling 494
Sperling Family Limited Partnership 329
Anthony J. DiNovi 823
Thomas M. Hagerty 823
Warren C. Smith, Jr. 823
Seth W. Lawry 247
Joseph J. Incandela 206
Kent R. Weldon 123
Terrence M. Mullen 62
Todd M. Abbrecht 62
Wendy L. Masler 34
Andrew D. Flaster 34
First Trust Co. FBO Kristina A. Watts 34
Charles W. Robins 34
James Westra 34
Charles A. Brizius 62
----
TOTAL 8,358
_____
EXHIBIT C
TRANSFER RESTRICTED
-------------------
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR
SOLD EXCEPT IN COMPLIANCE THEREWITH.
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
ARE SUBJECT TO THE TERMS AND CONDITIONS, INCLUDING CERTAIN
RESTRICTIONS ON TRANSFER, OF AN INVESTORS' AGREEMENT DATED AS OF
JANUARY 21, 1998, AS AMENDED FROM TIME TO TIME, AND NONE OF SUCH
SECURITIES, OR ANY INTEREST THEREIN, SHALL BE TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT AS PROVIDED IN THAT
AGREEMENT. A COPY OF THE INVESTORS' AGREEMENT IS ON FILE WITH THE
SECRETARY OF THE COMPANY AND WILL BE MAILED TO ANY PROPERLY
INTERESTED PERSON WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT
OF A WRITTEN REQUEST.
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE SHARES
OF FISHER SCIENTIFIC INTERNATIONAL INC.
VOTING COMMON STOCK
No. Certificate for __ Warrants
---------
This certifies that , or registered assigns,
-----------------
is the registered holder of the number of Warrants set forth above. Each
Warrant entitles the holder thereof (a "Holder"), subject to the provisions
contained herein and in the Common Stock Warrant Acquisition Agreement
referred to below, to receive from Fisher Scientific International Inc., a
Delaware corporation (the "Company"), one share of Voting Common Stock, par
value $0.01 per share ("Voting Common Stock"), of the Company ("Shares"), at
the exercise price (the "Exercise Price") of $48.25 per share, subject to
adjustment upon the occurrence of certain events.
This Warrant Certificate is issued under and in accordance with the
Common Stock Warrant Acquisition Agreement, dated as of January 21, 1998 (the
"Warrant Agreement"), between the Company and certain entities and persons
named therein, and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. The Warrant Agreement is
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder
of the Company and the Holders of the Warrants. Terms defined in the Warrant
Agreement are used herein as therein defined.
The Warrants represented by this Warrant Certificate shall be
exercisable prior to the close of business on the Expiration Date.
The Exercise Price and the number of shares of Voting Common Stock
issuable upon the exercise of each Warrant are subject to adjustment as
provided in the Warrant Agreement.
All Shares issuable by the Company upon the exercise of Warrants
shall, upon such issue, be duly and validly issued and fully paid and
nonassessable.
In order to exercise a Warrant, the registered holder hereof must
surrender this Warrant Certificate at the office of the Company, with the
Exercise Subscription Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with any
required payment in full of the Exercise Price then in effect for the
Underlying Shares as to which the Warrant(s) represented by this Warrant
Certificate are submitted for exercise, all subject to the terms and
conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be in accordance with Section 3.4(a) of the Warrant
Agreement.
The Company shall pay all issuance and transfer taxes and similar
governmental charges that may be imposed on the Company in connection with
the issuance of the Warrants or any securities deliverable upon exercise of
Warrants. The Company shall not be required, however, to pay any tax or
other charge imposed in connection with any transfer involved in the issue of
any certificate for Underlying Shares or payment of cash to any person other
than the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or
other charge has been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
Subject to compliance with the Warrant Agreement, this Warrant
Certificate and all rights hereunder are transferable by the registered
holder hereof, in whole or in part, on the register of the Company, upon
surrender of this Warrant Certificate for registration of transfer at the
office of the Company, duly endorsed by, or accompanied by a written
instrument of transfer substantially in the form of the attached Form of
Assignment or otherwise in a form satisfactory to the Company duly executed
by, the Holder hereof or his attorney duly authorized in writing, with
signature guaranteed. Upon any partial transfer, the Company will issue and
deliver to such holder a new Warrant Certificate or Certificates with respect
to any portion not so transferred.
No service charge shall be made for any registration of transfer or
exchange of the Warrant Certificates, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Each Holder of this Warrant Certificate by taking or holding the
same consents and agrees that this Warrant Certificate when duly endorsed in
blank shall be deemed negotiable and that when this Warrant Certificate shall
have been so endorsed, the Holder hereof may be treated by the Company and
all other Persons dealing with this Warrant Certificate as the absolute owner
hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, or to the transfer hereof on the register of the Company
maintained by a Warrant agent, any notice to the contrary notwithstanding,
but until such transfer on such register, the Company may treat the
registered Holder hereof as owner for all purposes.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate and not defined herein
that are defined in the Warrant Agreement shall have the meanings assigned to
them in the Warrant Agreement.
Dated: 1998
-----------------
FISHER SCIENTIFIC INTERNATIONAL INC.
By:_____________________________
Name:
----------------------
Title:
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: FISHER SCIENTIFIC INTERNATIONAL INC.
The undersigned irrevocably exercises of the
-----------
Warrants for the acquisition of one share of Voting Common Stock (subject to
adjustment), par value $0.01 per share, of Fisher Scientific International
Inc. (a "Share"), for each Warrant represented by the Warrant Certificate and
herewith makes payment of $____ (such payment being in cash or by certified
or official bank check payable to the order of Fisher Scientific
International Inc.), all at the Exercise Price and on the terms and
conditions specified in this Warrant Certificate and the Common Stock Warrant
Acquisition Agreement therein referred to, surrenders this Warrant
Certificate and all right, title and interest therein to Fisher Scientific
International Inc. and directs that the Shares deliverable upon the exercise
of such Warrants be registered or placed in the name and at the address
specified below and delivered thereto.
Date: 19__
---------------
_______________________________(1)
(Signature of Owner)
_________________________________
(Street Address)
_________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_________________________________
_________________
(1) Signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a
financial institution satisfactory to the Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
EXHIBIT D
TRANSFER RESTRICTED
-------------------
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR
SOLD EXCEPT IN COMPLIANCE THEREWITH.
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
ARE SUBJECT TO THE TERMS AND CONDITIONS, INCLUDING CERTAIN
RESTRICTIONS ON TRANSFER, OF AN INVESTORS' AGREEMENT DATED AS OF
JANUARY 21, 1998, AS AMENDED FROM TIME TO TIME, AND NONE OF SUCH
SECURITIES, OR ANY INTEREST THEREIN, SHALL BE TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT AS PROVIDED IN THAT
AGREEMENT. A COPY OF THE INVESTORS' AGREEMENT IS ON FILE WITH THE
SECRETARY OF THE COMPANY AND WILL BE MAILED TO ANY PROPERLY
INTERESTED PERSON WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT
OF A WRITTEN REQUEST.
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE SHARES
OF FISHER SCIENTIFIC INTERNATIONAL INC.
NON-VOTING COMMON STOCK
No. Certificate for __ Warrants
---------
This certifies that , or registered assigns,
-----------------
is the registered holder of the number of Warrants set forth above. Each
Warrant entitles the holder thereof (a "Holder"), subject to the provisions
contained herein and in the Common Stock Warrant Acquisition Agreement
referred to below, to receive from Fisher Scientific International Inc., a
Delaware corporation (the "Company"), one share of Non-Voting Common Stock,
par value $0.01 per share ("Non-Voting Common Stock"), of the Company
("Shares"), at the exercise price (the "Exercise Price") of $48.25 per share,
subject to adjustment upon the occurrence of certain events.
This Warrant Certificate is issued under and in accordance with the
Common Stock Warrant Acquisition Agreement, dated as of January 21, 1998 (the
"Warrant Agreement"), between the Company and certain entities and persons
named therein, and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. The Warrant Agreement is
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder
of the Company and the Holders of the Warrants. Terms defined in the Warrant
Agreement are used herein as therein defined.
The Warrants represented by this Warrant Certificate shall be
exercisable prior to the close of business on the Expiration Date.
The Exercise Price and the number of shares of Non-Voting Common
Stock issuable upon the exercise of each Warrant are subject to adjustment as
provided in the Warrant Agreement.
All Shares issuable by the Company upon the exercise of Warrants
shall, upon such issue, be duly and validly issued and fully paid and
nonassessable.
In order to exercise a Warrant, the registered holder hereof must
surrender this Warrant Certificate at the office of the Company, with the
Exercise Subscription Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with any
required payment in full of the Exercise Price then in effect for the
Underlying Shares as to which the Warrant(s) represented by this Warrant
Certificate are submitted for exercise, all subject to the terms and
conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be in accordance with Section 3.4(a) of the Warrant
Agreement.
The Company shall pay all issuance and transfer taxes and similar
governmental charges that may be imposed on the Company in connection with
the issuance of the Warrants or any securities deliverable upon exercise of
Warrants. The Company shall not be required, however, to pay any tax or
other charge imposed in connection with any transfer involved in the issue of
any certificate for Underlying Shares or payment of cash to any person other
than the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or
other charge has been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
Subject to compliance with the Warrant Agreement, this Warrant
Certificate and all rights hereunder are transferable by the registered
holder hereof, in whole or in part, on the register of the Company, upon
surrender of this Warrant Certificate for registration of transfer at the
office of the Company, duly endorsed by, or accompanied by a written
instrument of transfer substantially in the form of the attached Form of
Assignment or otherwise in a form satisfactory to the Company duly executed
by, the Holder hereof or his attorney duly authorized in writing, with
signature guaranteed. Upon any partial transfer, the Company will issue and
deliver to such holder a new Warrant Certificate or Certificates with respect
to any portion not so transferred.
No service charge shall be made for any registration of transfer or
exchange of the Warrant Certificates, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Each Holder of this Warrant Certificate by taking or holding the
same consents and agrees that this Warrant Certificate when duly endorsed in
blank shall be deemed negotiable and that when this Warrant Certificate shall
have been so endorsed, the Holder hereof may be treated by the Company and
all other Persons dealing with this Warrant Certificate as the absolute owner
hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, or to the transfer hereof on the register of the Company
maintained by a Warrant agent, any notice to the contrary notwithstanding,
but until such transfer on such register, the Company may treat the
registered Holder hereof as owner for all purposes.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate and not defined herein
that are defined in the Warrant Agreement shall have the meanings assigned to
them in the Warrant Agreement.
Dated: 1998
-----------------
FISHER SCIENTIFIC INTERNATIONAL INC.
By:_____________________________
Name:
Title:
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: FISHER SCIENTIFIC INTERNATIONAL INC.
The undersigned irrevocably exercises of the
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Warrants for the acquisition of one share of Non-Voting Common Stock (subject
to adjustment), par value $0.01 per share, of Fisher Scientific International
Inc. (a "Share"), for each Warrant represented by the Warrant Certificate and
herewith makes payment of $____ (such payment being in cash or by certified
or official bank check payable to the order of Fisher Scientific
International Inc.), all at the Exercise Price and on the terms and
conditions specified in this Warrant Certificate and the Common Stock Warrant
Acquisition Agreement therein referred to, surrenders this Warrant
Certificate and all right, title and interest therein to Fisher Scientific
International Inc. and directs that the Shares deliverable upon the exercise
of such Warrants be registered or placed in the name and at the address
specified below and delivered thereto.
Date: 19__
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_______________________________(1)
(Signature of Owner)
_________________________________
(Street Address)
_________________________________
(City) (State) (Zip
Code)
Signature Guaranteed by:
_________________________________
_________________
(1) Signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a
financial institution satisfactory to the Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the
enclosed Warrant Certificate hereby sells, assigns, and transfers unto the
Assignee(s) named below (including the undersigned with respect to any
Warrants constituting a part of the Warrants evidenced by the enclosed
Warrant Certificate not being assigned hereby) all of the rights of the
undersigned under the enclosed Warrant Certificate, with respect to the
number of Warrants set forth below:
SOCIAL SECURITY
OR OTHER
IDENTIFYING
NAME OF NUMBER OF NAME OF
ASSIGNEES ADDRESS ASSIGNEE(S) WARRANTS
- --------- ------- --------------- --------
and does hereby irrevocably constitute and appoint Fisher Scientific
International Inc. the undersigned's attorney to make such transfer on the
books of Fisher Scientific International Inc. maintained for that purpose,
with full power of substitution in the premises.
Date: 19__
---------------
___________________________________________________
(Signature of Owner)
_____________________________
(Street Address)
_____________________________
(City) (State) (Zip Code)
SIGNATURE GUARANTEED BY:
_____________________________
(1) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatever.
Exhibit 6
POWER OF ATTORNEY
To Prepare and Execute Documents Pursuant to Sections 13 and 16
of the Securities Exchange Act of 1934, as Amended,
and Rules Thereunder, by and on Behalf of
MERRILL LYNCH & CO., INC.
Know all by these presents, that the undersigned hereby
constitutes and appoints Marcia L. Tu its true and lawful Marcia L. Tu
attorney-in-fact to:
(1) to prepare and execute, for and on behalf of the
undersigned, any and all forms, schedules, reports and other
documents relating to Merrill Lynch & Co., Inc.'s direct or
indirect ownership of securities that are required to be filed
with the United States Securities and Exchange Commission
pursuant to Section 13 and 16 of the Securities Exchange Act of
1934, as amended, and the rules thereunder (collectively, the
"Exchange Act");
(2) do and perform any and all acts for and on behalf
of the undersigned which may be necessary or desirable to comply
with the requirements of Sections 13 and 16 of the Exchange Act
including, but not limited to, executing documents required by
said sections of the Exchange Act and effecting the timely filing
thereof with the United States Securities and Exchange Commission
and any other authority; and
(3) take any other action of any type whatsoever in
connection with the foregoing which, in the opinion of such
attorney-in-fact, may be of benefit to, in the best interest of,
or legally required by, the undersigned, it being understood that
the documents executed by such attorney-in-fact on behalf of the
undersigned pursuant to this Power of Attorney shall be in such
form and shall contain such terms and conditions as such
attorney-in-fact may approve in his discretion.
The undersigned hereby grants to such attorney-in-fact
full power and authority to do and perform all and every act and
thing whatsoever requisite, necessary and proper to be done in
the exercise of any of the rights and powers herein granted, as
fully to all intents and purposes as such attorney-in-fact might
or could do if personally present, hereby ratifying and
confirming all that such attorney-in-fact shall lawfully do or
cause to be done by virtue of this power of attorney and the
rights and powers herein granted. The undersigned acknowledges
that the foregoing attorney-in-fact, in serving in such capacity
at the request of the undersigned, is not assuming any of the
undersigned's responsibilities to comply with Sections 13 or 16
of the Exchange Act.
IN WITNESS WHEREOF, the undersigned has caused this
Power of Attorney to be executed as of this 30th day of November,
1994.
Merrill Lynch & Co., Inc.
By: /s/ Barry S. Friedberg
______________________________
Barry S. Friedberg
Executive Vice President
