-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QWIqTLsc2z3Ck6wACDM9FoZMCAwcydMKq/4/pM6QRuA3BZ/u0xCyXj+VHXED9y5M mYD7LG+qMIg24eKYcH3twA== 0000950103-98-000118.txt : 19980211 0000950103-98-000118.hdr.sgml : 19980211 ACCESSION NUMBER: 0000950103-98-000118 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19980210 SROS: NONE GROUP MEMBERS: ALPHA ASSURANCES VIE MUTUELLE GROUP MEMBERS: AXA - UAP GROUP MEMBERS: AXA ASSURANCES I.A.R.D. MUTUELLE GROUP MEMBERS: AXA ASSURANCES VIE MUTUELLE GROUP MEMBERS: AXA COURTAGE ASSURANCE MUTUELLE GROUP MEMBERS: CLAUDE BEBEAR, AS AXA VOTING TRUSTEE GROUP MEMBERS: DLJ CAPITAL INVESTORS, INC. GROUP MEMBERS: DLJ DIVERSIFIED ASSOCIATES LP GROUP MEMBERS: DLJ DIVERSIFIED PARTNERS, INC. GROUP MEMBERS: DLJ DIVERSIFIED PARTNERS, L.P. GROUP MEMBERS: DLJ DIVERSIFIED PARTNERS- A, L.P. GROUP MEMBERS: DLJ EAB PARTNERS, L.P. GROUP MEMBERS: DLJ ESC II, L.P. GROUP MEMBERS: DLJ FIRST ESC, L.P. GROUP MEMBERS: DLJ LBO PLANS MANAGEMENT CORPORATION GROUP MEMBERS: DLJ MERCHANT BANKING II, INC. GROUP MEMBERS: DLJ MERCHANT BANKING II, LLC GROUP MEMBERS: DLJ MERCHANT BANKING PARTNERS II, L.P. GROUP MEMBERS: DLJ MERCHANT BANKING PARTNERS II-A, L.P. GROUP MEMBERS: DLJ MILLENNIUM PARTNERS - A, L.P. GROUP MEMBERS: DLJ MILLENNIUM PARTNERS, L.P. GROUP MEMBERS: DLJ OFFSHORE PARTNERS II, C.V. GROUP MEMBERS: DLJMB FUNDING II, INC. GROUP MEMBERS: DONALDSON LUFKIN & JENRETTE INC /NY/ GROUP MEMBERS: DONALDSON LUFKIN & JENRETTE, INC. GROUP MEMBERS: FINAXA GROUP MEMBERS: HENRI DE CLERMONT - TONERRE, AS AXA VOTING TRUSTEE GROUP MEMBERS: PATRICE GARNIER, AS AXA VOTING TRUSTEE GROUP MEMBERS: THE EQUITABLE COMPANIES INCORPORATED GROUP MEMBERS: UK INVESTMENT PLAN 1997 PARTNERS GROUP MEMBERS: UK INVESTMENT PLAN 1997, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FISHER SCIENTIFIC INTERNATIONAL INC CENTRAL INDEX KEY: 0000880430 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-PROFESSIONAL & COMMERCIAL EQUIPMENT & SUPPLIES [5040] IRS NUMBER: 020451017 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-44475 FILM NUMBER: 98528869 BUSINESS ADDRESS: STREET 1: LIBERTY LANE CITY: HAMPTON STATE: NH ZIP: 03842 BUSINESS PHONE: 6039265911 MAIL ADDRESS: STREET 1: LIBERTY LANE CITY: LIBEHAMPTON STATE: NH ZIP: 03842 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DONALDSON LUFKIN & JENRETTE INC /NY/ CENTRAL INDEX KEY: 0000029646 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY & COMMODITY BROKERS, DEALERS, EXCHANGES & SERVICES [6200] IRS NUMBER: 131898818 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 277 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10172 BUSINESS PHONE: 2128923000 MAIL ADDRESS: STREET 1: 277 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10172 FORMER COMPANY: FORMER CONFORMED NAME: DONALDSON LUFKIN & JENRETTE INC /NY/ DATE OF NAME CHANGE: 19960319 SC 13D 1 ============================================================================== UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------ SCHEDULE 13D Under the Securities Exchange Act of 1934 FISHER SCIENTIFIC INTERNATIONAL INC. (Name of Issuer) Common Stock $.01 PAR VALUE (Title of Class of Securities) ------------ 338032105 (CUSIP Number) Donaldson, Lufkin & Jenrette, Inc. (Name of Persons Filing Statement) John K. Knight, Jr. Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Tel. No.: 212 450 4000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 21, 1997 (Date of Event which Requires Filing of this Statement) ------------ If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this statement because of Rule 13d-1(b)(3) or (4), check the following: [ ] ============================================================================== SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking Partners II, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH REPORTING PERSON WITH 1,310,201 9 SOLE DISPOSITIVE POWER 825,328 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking Partners II-A, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 32,868 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Millennium Partners - A, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 2,603 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Millennium Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 13,345 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ EAB Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 3,706 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Offshore Partners II, C.V. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Netherlands Antilles 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 40,586 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking II, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 918,436 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* OO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking II, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 918,436 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 48,253 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Partners- A, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 17,919 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Associates LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 66,172 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Partners, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 66,172 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ First ESC, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 1,588 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ ESC II, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 155,636 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ LBO Plans Management Corporation 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 160,930 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJMB Funding II, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 146,533 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Capital Investors, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 1,288,365 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON UK Investment Plan 1997 Partners 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 21,836 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON UK Investment Plan 1997, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON -0- WITH 8 SHARED VOTING POWER 1,310,201 9 SOLE DISPOSITIVE POWER 21,836 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 -- See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% -- See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Donaldson Lufkin & Jenrette, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 WITH 9 SOLE DISPOSITIVE POWER 1,310,201 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* HC, CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON The Equitable Companies Incorporated 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* CO, HC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA - UAP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* HC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Finaxa 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* HC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Assurances I.A.R.D. Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 8 SHARED VOTING POWER See Item 5 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Assurances Vie Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Courtage Assurance Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Alpha Assurances Vie Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Claude Bebear, as AXA Voting Trustee 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Citizen of France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Patrice Garnier, as AXA Voting Trustee 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Citizen of France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 338032105 Page of 90 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Henri de Clermont - Tonnerre, as AXA Voting Trustee 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Citizen of France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,201 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.9% - See Item 5 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! Item 1. Security and Issuer. The class of equity securities to which this statement relates is the common stock, $0.01 par value per share (the "Shares"), of Fisher Scientific International Inc., a Delaware corporation ("Fisher"). The principal executive offices of Fisher are located at Liberty Lane, Hampton, N.H. 03842. Item 2. Identity and Background. This Schedule 13D is being filed jointly on behalf of the following persons (collectively, the "Reporting Persons"): (1) DLJ Merchant Banking Partners II, L.P., a Delaware corporation ("Partners II"); (2) DLJ Merchant Banking Partners II-A, L.P. a Delaware limited partnership ("Partners II-A"); (3) DLJ Millennium Partners, L.P., a Delaware limited partnership ("Millennium"); (4) DLJ Millennium Partners-A, L.P., a Delaware limited partnership ("Millennium-A"); (5) DLJ Offshore Partners II, C.V., a Netherlands Antilles limited partnership ("Offshore II"), (6) DLJ EAB Partners, L.P., a Delaware limited partnership ("EAB"); (7) DLJ Merchant Banking II, LLC, a Delaware limited liability company ("MBII LLC"); (8) DLJ Merchant Banking II, Inc., a Delaware corporation ("MBII INC"); (9) DLJ Diversified Partners, L.P., a Delaware limited partnership ("Diversified"); (10) DLJ Diversified Partners-A, L.P., a Delaware limited partnership ("Diversified-A"); (11) DLJ Diversified Associates, L.P., a Delaware limited partnership ("Diversified Associates"); (12) DLJ Diversified Partners, Inc., a Delaware corporation ("Diversified Partners"); (13) DLJ First ESC L.P., a Delaware limited partnership ("ESC"); (14) DLJ ESC II L.P., a Delaware limited partnership ("ESC II"), (15) DLJ LBO Plans Management Corporation, a Delaware corporation ("LBO"); (16) DLJ MB Funding II, Inc., a Delaware corporation ("Funding II"); (17) DLJ Capital Investors, Inc., a Delaware corporation ("DLJCI"); (18) UK Investment Plan 1997 Partners, a Delaware general partnership ("1997 Partners") (19) UK Investment Plan 1997, Inc. ("Plan 1997" and together with the previously listed entities, the "DLJ Entities"); (19) Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation ("DLJ"); (20) The Equitable Companies Incorporated, a Delaware corporation ("EQ"); (21) AXA-UAP, a societe anonyme organized under the laws of France ("AXA"); (22) Finaxa, a societe anonyme organized under the laws of France; (23) AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company organized under the laws of France; (24) AXA Assurances Vie Mutuelle, a mutual insurance company organized under the laws of France; (25) AXA Courtage Assurance Mutuelle, a mutual insurance company organized under the laws of France; (26) Alpha Assurances Vie Mutuelle, a mutual insurance company organized under the laws of France, and (27) Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, trustees (the "AXA Voting Trustees") of a voting trust (the "AXA Voting Trust") established pursuant to a Voting Trust Agreement by and among AXA and the AXA Voting Trustees dated as of May 12, 1992, as amended January 22, 1997. Partners II, Partners II-A, Millennium, Millennium-A, Offshore II, EAB, Diversified, Diversified-A, Funding II, 1997 Partners, ESC, and ESC II are collectively referred to as the "DLJ Funds". Partners II, Partners II-A, Millenium and Millenium-A are Delaware limited partnerships which make investments for long term appreciation. MBII LLC is the Associate General Partner of Partners II and Partners II-A. MBII INC is the Managing General Partner of Partners II and Partners II-A. MBII LLC and MBII INC make all of the investment decisions on behalf of Partners II and Partners II-A. EAB is Delaware limited partnership which makes investments for long term appreciation. MBII LLC is the Associate General Partner of EAB and LBO is the Managing General Partner of EAB. MBII LLC and LBO make all of the investment decisions on behalf of EAB. Offshore II is a Netherlands Antilles limited partnership which makes investments for long term appreciation. MBII LLC is the Associate General Partner of Offshore II. MBII INC is the Advisory General Partner of Offshore II. MBII LLC and MBII INC make all of the investment decisions on behalf of Offshore. MBII LLC is a Delaware limited liability company and is a registered investment adviser. As the Associate General Partner of Partners II, Partners II-A, Millennium, Millennium II-A, EAB and Offshore II, MBII LLC, in conjunction with MBII INC, participates in investment decisions made on behalf of these entities. MBII INC is the managing member of MBII LLC. MBII INC is a Delaware corporation and is a registered investment adviser. As the Managing General Partner of Partners II, Partners II-A, Millennium and Millennium-A, and the Advisory General Partner Offshore II, MBII INC is responsible for the day to day management of these entities and, in conjunction with MBII LLC, participates in investment decisions made on behalf of these entities. MBII INC is a wholly owned subsidiary of DLJCI. Diversified and Diversified-A are Delaware limited partnerships which make investments for long term appreciation. A portion of Diversified and Diversified-A's capital commitments are dedicated to making side-by-side investments with Partners II and Partners II-A, respectively. Diversified Associates is the Associate General Partner of Diversified and Diversified- A and Diversified Partners is the Managing General Partner of Diversified and Diversified-A. Diversified Partners is responsible for the day to day management of Diversified and Diversified-A. Diversified Associates is a Delaware limited partnership and a registered investment adviser. As the Associate General Partner of Diversified and Diversified-A, Diversified Associates, in conjunction with Diversified Partners and subject to the terms of the Diversified Agreement, participates in the management of investments of Diversified. Diversified Partners is the general partner of Diversified Associates. Diversified Partners is a Delaware corporation and a registered investment adviser. As the Managing General Partner of Diversified and Diversified-A, Diversified Partners is responsible for the day to day management of Diversified and Diversified-A. In conjunction with Diversified Associates, Diversified Partners participates in the investment decisions made on behalf of Diversified and Diversified-A. Diversified Partners is a wholly owned subsidiary of DLJCI. ESC and ESC II are Delaware limited partnerships and "employee securities company" as defined in the Investment Company Act of 1940, as amended ("ESC"). LBO, as the Managing General Partner of ESC and ESC II, makes all of the investments decisions on behalf of ESC and ESC II. LBO is a Delaware corporation and a registered investment adviser. LBO is a wholly owned subsidiary of DLJCI. As the Managing General Partner of EAB, ESC and ESC II, LBO is responsible for the day-to-day management of EAB, ESC and ESC II. Funding II is a Delaware corporation which makes investments for long term appreciation generally side-by-side with Partners II. Funding II is a wholly owned subsidiary of DLJCI. DLJCI is a Delaware corporation a holding company. DLJCI is a wholly owned subsidiary of DLJ. 1997 Partners is a Delaware general partnership which makes investments for long term appreciation generally side-by-side with Partners II. Plan 1997 and DLJ are each general partners of 1997 Partners. Plan 1997 is a Delaware corporation. Plan 1997 is a wholly owned subsidiary of DLJ. DLJ is a publicly held Delaware corporation. DLJ directly owns all of the capital stock of DLJCI and Plan 1997. DLJ, acting on its own behalf or through its subsidiaries, is a registered broker/dealer and registered investment adviser engaged in investment banking, institutional trading and research, investment management and financial and correspondent brokerage services. EQ is a Delaware corporation and is a holding company. As of January 29, 1998, EQ owns, directly or indirectly, 76.4% of DLJ. AXA is a societe anonyme organized under the laws of France and a holding company for an international group of insurance and related financial services companies. As of December 8, 1997, approximately 59% of the outstanding common stock of EQ, was beneficially owned by AXA. For insurance regulatory purposes, to insure that certain indirect minority shareholders of AXA will not be able to exercise control over EQ and certain of its insurance subsidiaries, the voting shares of EQ capital stock beneficially owned by AXA and its subsidiaries have been deposited into the AXA Voting Trust. For additional information regarding the AXA Voting Trust, reference is made to the Schedule 13D filed by AXA with respect to EQ. As of January 29, 1998, AXA directly owned 0.15% of DLJ. Finaxa is a societe anonyme organized under the laws of France and is a holding company. As of March 5, 1997, Finaxa controlled directly and indirectly approximately 22.4% of the issued ordinary shares (representing approximately 32.8% of the voting power) of AXA. Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle, AXA Courtage Assurance Mutuelle, and Alpha Assurances Vie Mutuelle (collectively, the "Mutuelles AXA") is a mutual insurance company organized under the laws of France. Each of the Mutuelles AXA is owned by its policy holders. As of March 5, 1997, the Mutuelles AXA, as a group, controlled approximately 61.4% of the issued shares (representing approximately 72.0% of the voting power) of Finaxa. Including the ordinary shares owned by Finaxa, on March 5, 1997, the Mutuelles AXA directly or indirectly controlled 25.9% of the issued ordinary shares (representing 37.8% of the voting power) of AXA. Acting as a group, the Mutuelles AXA control AXA and Finaxa. Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, the AXA Voting Trustees, exercise all voting rights with respect to the shares of Equitable capital stock beneficially owned by AXA and its subsidiaries that have been deposited in the AXA Voting Trust. The business address, citizenship and present principal occupation of each of the AXA Voting Trustees are set forth on Schedule I attached hereto. The address of the principal business and office of each of the DLJ Entities and DLJ is 277 Park Avenue, New York, New York 10172. The address of the principal business and principal office of Equitable is 1290 Avenue of the Americas, New York, New York 10104. The address of the principal business and principal office of each of AXA and the AXA Voting Trustees is 9, Place Vendome, 75001 Paris, France. The address of Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of AXA Assurances I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is 21, rue de Chateaudun, 75002 Paris, France; of AXA Courtage Assurance Mutuelle is 26, rue Louis-le-Grand, 75002 Paris, France; and of Alpha Assurances Vie Mutuelle is Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense, France. The name, business address, citizenship, present principal occupation or employment and the name and business address of any corporation or organization in which each such employment is conducted, of each executive officer or member, as applicable, of the Board of Directors, Supervisory Board, or the Conseil d'Administration (French analogue of a Board of Directors) of Equitable, AXA, Finaxa and the Mutuelles AXA are set forth on Schedules A through N, respectively, attached hereto. During the past five (5) years, neither any of the Reporting Persons nor, to the best knowledge of any of the Reporting Persons, any of the other persons listed on Schedules A through N attached hereto, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to United States federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. The general and limited partners of the DLJ Entities contributed $58,410,822.75 for 1,210,587 Shares, and received, in connection with their commitment to purchase cumulative preferred stock of the Company, 99,614 Warrants to purchase Shares. Item 4. Purpose of Transaction. The DLJ Entities entered into the Agreements (as defined in Item 5 below) to purchase the Shares and Warrants for general investment purposes. The DLJ Entities retain the right to change their investment intent. On August 7, 1997, Fisher and FSI Merger Corp. ("FSI"), a Delaware corporation that, as of August 4, 1997, was wholly-owned by Thomas H. Lee Equity Fund III, L.P., a Delaware limited partnership ("Equity Fund III"), entered into an Agreement and Plan of Merger (as amended and restated on September 11 and November 14, 1997, and amended on January 16, 1998, the "Merger Agreement," filed hereto and made a part hereof as Exhibit 6). The Merger Agreement provides, among other things, for the merger of FSI with and into Fisher (the "Merger"), with Fisher as the surviving corporation (the "Surviving Corporation"). From and after the Effective Time (as defined in Item 5 below), the Surviving Corporation shall possess all the rights, privileges, powers and franchises and shall be subject to all of the restrictions, disabilities and duties of Fisher and FSI, all as provided under Delaware law. The transactions contemplated by the Merger Agreement were approved by the stockholders of Fisher on January 16, 1998 and were consummated on January 21, 1998. Subject to the agreements described herein or attached hereto, and to market conditions and other factors, the DLJ Entities or other affiliates of DLJ may acquire or dispose of shares of Fisher from time to time in future open-market, privately negotiated or other transactions, may enter into agreements with third parties relating to acquisitions of securities issued or to be issued by the Surviving Corporation, may enter into agreements with the management of Fisher relating to acquisitions of shares of the Surviving Corporation by members of management, issuances of options to management or their employment by the surviving corporation, or may effect other similar agreements or transactions. Except as set forth herein, the Reporting Persons do not have any plans or proposals which would relate to or result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) and (b) Pursuant to the terms of the Merger Agreement, on January 21, 1998 (the "Closing Date"), Fisher filed a Certificate of Merger with the Secretary of the State of Delaware, and the Merger was effective as of the filing of such certificate (the "Effective Time"). Certain Fisher management stockholders (the "Management Investors") elected to retain certain Shares as provided in the Merger Agreement. In connection therewith, immediately prior to the Effective Time, FSI entered into an Investors' Subscription Agreement (the "Subscription Agreement") (attached hereto and made a part hereof as Exhibit 3) with Equity Fund III, Thomas H. Lee Foreign Fund III, L.P., a Delaware limited partnership ("Foreign Fund III"), THL FSI Equity Investors, L.P., a Delaware limited partnership ("THL FSI"), THL-CCI Limited Partnership, a Massachusetts limited partnership ("THL-CCI"), and certain persons affiliated with Thomas H. Lee Company, a Massachusetts sole proprietorship (the "Additional THL Persons") (collectively, the "THL Entities"); the DLJ Funds; Chase Equity Associates, L.P. ("Chase"); ML IBK Positions, Inc., KECALP Inc. and Merrill Lynch KECALP L.P. 1997 (collectively, "Merrill Lynch" and, together with the DLJ Funds and Chase, the "Institutional Investors"), dated January 21, 1998, pursuant to which the THL Entities and the Institutional Investors purchased shares of stock of FSI on the Terms set forth in the Subscription Agreement. At the Effective Time, shares of stock of FSI were converted into 6,278,915 shares of Fisher Common Stock, of which 5,471,857 were of Fisher Common Stock (which is voting) and 807,058 were of Fisher non-voting Common Stock. Immediately following the Effective Time, the DLJ Funds' approximate percentage ownership of the outstanding common stock of the Surviving Corporation (including those shares which the DLJ Funds have a right to acquire) is 17.9%. Simultaneously with the execution of the Subscription Agreement, on January 21, 1998, Fisher entered into a Common Stock Warrant Acquisition Agreement (the "Warrant Acquisition Agreement") (attached hereto and made a part hereof as Exhibit 4) with the THL Entities and the Institutional Investors in connection with such parties' commitment to purchase cumulative preferred stock of Fisher. Pursuant to the Warrant Acquisition Agreement, the THL Entities and the Institutional Investors received warrants to purchase 516,663 Shares in connection with the Merger. In addition, Fisher, the THL Entities, the Institutional Investors (and together with the THL Entities, the "Equity Investors"), and the Management Investors have entered into an Investors' Agreement dated as of January 21, 1998 (the "Investors' Agreement") (filed hereto and made a part hereof as Exhibit 5). The Investors' Agreement, together with the Subscription Agreement and the Warrant Acquisition Agreement, are sometimes referred to herein as the "Agreements." Pursuant to the Investors' Agreement, the Board of Directors of Fisher will comprise at least ten and no more than eleven members, seven of which will be nominated by Equity Fund III, one of which will be nominated by Partners II, one of which will be Paul M. Montrone and one of which will be Paul M. Meister (Montrone and Meister collectively, the "Management Directors"). Further, at least two of the members shall not be "Affiliates" or "Associates" of any party to the Investors' Agreement within the meaning of Rule 12b-2 under the Exchange Act. Each of the parties to the Investors' Agreement entitled to vote for the election of directors has agreed to vote its shares of Fisher in favor of the persons so nominated or designated, provided that none of the parties will be required to vote for another party's nominee or a Management Director, as it were, if the number of Shares beneficially held by the person or group making the nomination or by such Management Director is less than 10% of such person's or group's or such Management Director's Initial Ownership (defined as the number of shares of Equity Securities (as defined in the Investors' Agreement) beneficially owned, including any rights to acquire such shares, by such person or group or the Management Directors, as of the date of the Investors' Agreement). Pursuant to the Investors' Agreement, each of the Institutional Investors and the Management Investors may transfer shares to certain persons and entities represented as Permitted Transferees (as defined in the Investors' Agreement) and, otherwise, only as follows: (i) pursuant to the Tag-Along Rights described below; (ii) pursuant to the Drag-Along Rights described below; (iii) pursuant to the exercise of the Registration Rights described below; and (iv) in a transfer of shares of a class of equity securities made after an initial public offering in compliance with Rule 144 under the Securities Act of 1933, as amended, in an amount not in excess of (A) the aggregate number of shares of such class transferred by the THL Entities, multiplied by (B) such Investor's Initial Ownership of such class divided by the Initial Ownership of Equity Fund III of such class. In addition, as to any Institutional Investor and its Permitted Transferees, Shares will be freely transferable (i) at the earlier of (A) the date on which the ownership of such Institutional Investor and its Permitted Transferees falls below 25% of its Initial Ownership and (B) seven years after the Closing Date; provided that no such transfer may be made to any Adverse Person (defined as any person reasonably determined by the Board of Directors to be a competitor or potential competitor of Fisher). In addition, as to any Management Investor and its Permitted Transferees, shares will be freely transferable (i) to another Management Investor, (ii) ten years after the Closing Date, or (iii) in a Qualifying Public Offering (as defined below), provided that no such transfer may be made to any Adverse Person. The Investors' Agreement provides that if the THL Entities propose to sell shares of a class of Fisher equity securities, the other parties to the Investors' Agreement will have the right to participate in the sale ("Tag-Along Rights"), provided that no such rights shall apply (i) in public offerings, (ii) to sales to THL Designated Transferees (as defined in the Investors' Agreement) or (iii) to sales of up to 5% in the aggregate of the Initial Ownership (as defined in the Investors' Agreement) by the THL Entities of such class of equity securities. If Tag-Along Rights apply, the THL Entities will provide notice to the Institutional and Management Investors of the terms and conditions of the proposed sale and offer each such Shareholder the opportunity to participate. If the number of shares that the THL Entities and the Institutional and Management Investors propose to sell exceeds the number that can be sold on the terms and conditions proposed by the buyer, the THL Entities and each other shareholder who has exercised Tag-Along Rights will be entitled to sell up to his or her proportionate share of the sale, referred to in the Investors' Agreement as the "Tag-Along Portion." To the extent any shareholder declines its Tag-Along Portion, the THL Entities shall be entitled to sell their own shares in lieu of such shareholder. Equity Fund III may sell, on behalf of the THL Entities and the Institutional and Management Investors who have exercised Tag-Along Rights, their shares on substantially the same terms and conditions set forth in the notice within 120 days of the date all Tag-Along Rights are waived, exercised or expire. The Investors' Agreement contemplates that if (i) the THL Entities propose to sell not less than 50% or more of their Initial Ownership of Common Stock (as defined in the Investors' Agreement) in a bona fide third party sale, or (ii) the THL Entities propose a sale in which the Common Stock to be sold by the parties to the Investors' Agreement constitute more than 50% of the outstanding shares of Common Stock, then Equity Fund III may, at its sole discretion, compel all parties to the Investors' Agreement to participate in the sale with respect to their proportionate share of the amount of Fisher Common Stock proposed to be sold, referred to in the Investors' Agreement as the "Drag-Along Portion," for the same consideration and otherwise on the same terms and conditions as the THL Entities ("Drag-Along Rights"). The Management Directors have the right to require that all of their shares be purchased by the buyer or the other parties to the Investors' Agreement, at Equity Fund III's option, as a condition to consummation of the sale. Shareholders other than the THL Entities ("Non-THL Shareholders") have the right to refuse to participate in such a sale if the sale terms contain a provision which materially and adversely affects their ability to compete in any line of business or geographic area; should any shareholder refuse, the THL Entities may cause such shareholder to sell its proportionate share of equity securities to the THL Entities. In the event that Fisher shall issue equity securities after the date of the Investors' Agreement and prior to any registered public offering of Fisher common stock yielding aggregate gross proceeds of at least $50,000,000 ("Qualified Public Offering"), the THL Entities and each of the Management Investors shall be entitled to purchase their pro rata portion of Initial Ownership of such offering of equity securities ("Preemptive Rights"). In the event that Fisher shall issue equity securities after a Qualified Public Offering to any third party, including any shareholder, the THL Entities shall be entitled to purchase the THL Entities' pro rata portion of the equity securities being offered. In the event the THL Entities propose to purchase any new equity securities being issued by Fisher (including as described in the preceding two sentences), prior to a Qualified Public Offering each Institutional Investor, and following a Qualified Public Offering any Non-THL Shareholder, shall be entitled to purchase, at the same price and on the same terms as the THL Entities, each of their proportionate share of such new securities, referred to in the Investors' Agreement as the "Preemptive Rights Portion." The THL Entities shall have the right to purchase, or designate any other Fisher shareholders to purchase, any equity securities with respect to which other Fisher shareholders have not exercised their Preemptive Rights. To the extent that the THL Entities shall acquire any equity securities from any person other than the parties to the Investors' Agreement, certain other investors shall have the right to acquire their proportionate share of such equity securities to be acquired by the THL Entities, referred to in the Investors' Agreement as the "Third Party Purchase Portion." Until the earlier of (A) January 21, 2005 or (B) the date on which at least 40% of the Common Stock on a Fully Diluted basis (as defined in the Investors' Agreement) is held by persons other than the parties to the Investors' Agreement, no Institutional or Management Investor may acquire Fisher equity securities except by exercising its Preemptive Rights or as otherwise permitted under the Investors' Agreement. Under the Investors' Agreement, the THL Entities may require that Fisher register for sale its shares of equity securities, such registration which shall not be effected more than six times. After Fisher has effected two such demands for registration by the THL Entities, the Institutional Investors may require that Fisher register its shares, such registration which shall not be effected more than once. After the transfer of shares of common stock exceeding 20% of the pro rata share of common stock initially held by all of the Equity Investors, the Management Directors may require that Fisher register their shares, such registration which shall not be effected more than three times. If Fisher proposes to register equity securities under the Securities Act, as amended, in connection with a public offering, it shall offer all shareholders the opportunity to include in such registration statement such number of shares of common stock as each such shareholder may request. All such rights of registration ("Registration Rights") are subject to certain other customary terms and conditions, including provisions relating to cutbacks, holdbacks and indemnification. Additionally, the Investors' Agreement provides that the parties thereto must maintain certain levels of confidentiality and "ethical walls" with respect to certain Fisher-related information received on a confidential basis. Fisher, for its part, shall not enter into any agreements with any shareholders or prospective shareholders to the extent such agreements would conflict with the Registration Rights or reduce the amount of Registrable Securities (as defined in the Investors' Agreement), or otherwise on terms more favorable than in the Investors' Agreement. Also, Fisher shall take certain actions reasonably requested by certain parties subject to Regulation Y or Regulation K of the Federal Reserve Board in connection with the compliance by those parties with such regulations. Each of the Agreements is filed as an exhibit to this Schedule 13D and is incorporated herein by reference. The foregoing descriptions of the Agreements are not intended to be complete and are qualified in their entirety by reference to such exhibits. By virtue of the Investors' Agreement, the DLJ Entities, the other Institutional Investors (except for Chase), the THL Entities, and the Management Investors may be deemed to share voting and dispositive power with respect to over 5,922,111 (77.4%) of the Outstanding Shares of Fisher. Each of the Reporting Persons expressly disclaims the existence of such shared power. By virtue of the Investors' Agreement, the DLJ Entities, the other Institutional Investors (except for Chase), the THL Entities, and the Management Investors may constitute a "group" within the meaning of Rule 13d-5(b) under the Exchange Act. As a member of a group, each of the DLJ Entities may be deemed to beneficially own the Shares beneficially owned by the members of the group as a whole (collectively, the "Investors' Shares"). Each of the Reporting Persons expressly disclaims membership in such group, and disclaims beneficial ownership of those Investors' Shares held by any other members of such group. While each of the DLJ Entities may be deemed to beneficially own the Investors' Shares, each of the DLJ Entities disclaims beneficial ownership of those Investors' Shares held by (i) any Institutional Investor other than the DLJ Entities, (ii) any THL Entity, or (iii) any Management Investor. As the sole stockholder of DLJCI and UKIP 1997 INC, DLJ may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares that may be deemed to be owned beneficially by each of DLJCI and UKIP 1997 INC. Because of EQ's ownership interest in DLJ, EQ may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares that may be deemed to be beneficially owned indirectly by DLJ. Each of DLJ and EQ disclaims beneficial ownership of the Investors' Shares. Because of AXA-UAP's ownership interest in EQ, and the AXA Voting Trustees' power to vote the EQ shares placed in the AXA Voting Trust, each of AXA-UAP and the AXA Voting Trustees may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares that EQ may be deemed to beneficially own indirectly. Because of the direct and indirect ownership interest in AXA-UAP of Finaxa and the Mutuelles AXA, each of Finaxa and the Mutuelles AXA may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares that AXA-UAP may be deemed to beneficially own indirectly. AXA-UAP, Finaxa, the Mutuelles AXA, and the AXA Voting Trustees expressly disclaim beneficial ownership of any of the Investors' Shares. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that a Reporting Person is the beneficial owner of any of the Shares other than those which such Reporting Person has acquired pursuant to the Agreements. (c) The responses to Items 3, 4, and 5 of this Schedule 13D are incorporated herein. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. See responses to Items 4 and 5. A copy of each of the Investors' Subscription Agreement, the Common Stock Warrant Acquisition Agreement, and the Investors' Agreement are attached hereto as Exhibits 3, 4 and 5 and are incorporated herein by reference. The summaries of the terms of the Investors' Subscription Agreement, the Investors' Agreement and the Common Stock Warrant Acquisition Agreement, set forth herein, are qualified in their entirety by reference to Exhibits 3, 4, and 5 respectively. Except for the agreements described in the response, to Items 4 and 5, to the best knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the persons enumerated in Item 2, and any other person, with respect to any securities of Fisher, including, but not limited to, transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits. Exhibit 1: Joint filing agreement among the Reporting Persons Exhibit 2: Powers of Attorney Exhibit 3: Investors' Subscription Agreement dated as of January 21, 1998 among FSI Merger Corp. and the Investors named therein. Exihbit 4: Common Stock Warrant Acquisition Agreement dated as of January 21, 1998 among Fisher Scientific International Inc. and the Investors named therein. Exhibit 5: Investors' Agreement dated as of January 21, 1998 among Fisher Scientific International Inc., the DLJ Funds and certain other persons named therein. Exhibit 6: Second Amended and Restated Agreement and Plan of Merger, dated as of November 14, 1997, by and between FSI Merger Corp., and Fisher Scientific International, Inc. SIGNATURES After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Merchant Banking Partners II, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Merchant Banking Partners II-A, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Millennium Partners, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Millennium Partners -A, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ EAB Partners, L.P. By DLJ LBO Plans Management Corporation as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Offshore Partners II, C.V. By DLJ Merchant Banking II, Inc., as Advisory General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Merchant Banking II, LLC By DLJ Merchant Banking II, Inc., as Managing Member By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Merchant Banking II, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Diversified Partners, L.P. By DLJ Diversified Partners, Inc., as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Diversified Partners-A, L.P. By DLJ Diversified Partners, Inc., as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Diversified Associates, L.P. By DLJ Diversified Partners, Inc., as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Diversified Partners, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ First ESC, L.P. By DLJ LBO Plans Management Corporation, as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President and Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ ESC II L.P. By DLJ LBO Plans Management Corporation, as Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President and Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ LBO Plans Management Corporation By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President and Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJMB Funding II, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 DLJ Capital Investors, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 UK Investment Plan 1997 Partners By UK Investment Plan 1997, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President, Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 UK Investment Plan 1997, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President, Secretary and Treasurer After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 Donaldson, Lufkin & Jenrette, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President and Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 The Equitable Companies Incorporated By: /s/ Alvin H. Fenichel ----------------------------------- Name: Alvin H. Fenichel Title: Senior Vice President and Controller After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February __, 1998 AXA-UAP Finaxa AXA Assurances I.A.R.D. Mutuelle AXA Assurances Vie Mutuelle AXA Courtage Assurance Mutuelle Alpha Assurances Vie Mutuelle Claude Bebear, as AXA Voting Trustee Patrice Garnier, as AXA Voting Trustee Henri de Clermont-Tonnerre, as AXA Voting Trustee Signed on behalf of each of the above By: /s/ Alvin H. Fenichel ----------------------------------- Name: Alvin H. Fenichel Title: Attorney-in-fact Schedule A Executive Officers and Directors of DLJ Merchant Banking II, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ Merchant Banking II, Inc. ("MBII INC") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of MBII INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MBII INC and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Hamilton E. James Chairman; Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Nicole S. Arnaboldi Managing Director * Thompson Dean Managing Director Carlos Garcia Managing Director * Peter T. Grauer Managing Director * David L. Jaffe Managing Director * Lawrence M.v.D. Schloss Managing Director and Chief Operating Officer * Karl R. Wyss Managing Director - ------------ * Director Schedule B Executive Officers and Directors of DLJ Diversified Partners, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ Diversified Partners, Inc. ("DP INC") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of DP INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to DP INC and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Hamilton E. James Chairman; Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Lawrence M.v.D. Schloss Managing Director and Chief Operating Officer; Managing Director and Chief Operating Officer, DLJ Merchant Banking II, Inc. * Marjorie S. White Secretary and Treasurer; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. - ------------ * Director Schedule C Executive Officers and Directors of DLJMB Funding, II, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ MB Funding, II, Inc. ("Funding II") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Funding II at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Funding II and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Anthony F. Daddino President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Charles J. Hendrickson Treasurer; Senior Vice President and Treasurer, Donaldson, Lufkin & Jenrette, Inc. Marjorie S. White Secretary; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. - ------------ * Director Schedule D Executive Officers and Directors of DLJ LBO Plans Management Corporation The names of the Directors and the names and titles of the Executive Officers of DLJ LBO Plans Management Corporation ("LBO") and their business addresses and principal occupations are set forth below. Each Director's or Executive Officer's business address is that of LBO at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to LBO and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Anthony F. Daddino President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Vincent DeGiaimo Vice President; Senior Vice President and Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Marjorie S. White Vice President and Secretary; Vice President, Donaldson, Lufkin & Jenrette, Inc. - ------------ * Director Schedule E Executive Officers and Directors of DLJ Capital Investors, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of DLJCI at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to DLJCI and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * John S. Chalsty Chairman; Chairman and Chief Executive Officer, Donaldson, Lufkin & Jenrette, Inc. * Hamilton E. James Chief Executive Officer; Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Joe L. Roby Chief Operating Officer; President and Chief Operating Officer, Donaldson, Lufkin & Jenrette, Inc. * Anthony F. Daddino Executive Vice President and Chief Financial Officer; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Marjorie S. White Secretary and Treasurer; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. - ------------ * Director Schedule F Executive Officers and Directors of UK Investment Plan 1997, Inc. The names of the Directors and the names and titles of the Executive Officers of UK Investment Plan 1997, Inc. ("UKIP 1997 INC") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of UKIP 1997 INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to UKIP 1997 INC and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Anthony F. Daddino President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Marjorie S. White Vice President, Secretary and Treasurer; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. * Stuart S. Flamberg Director of Taxes; Senior Vice President and Director of Taxes, Donaldson, Lufkin & Jenrette, Inc. * Mark A. Competiello Tax Manager; Senior Vice President and Tax Manager, Donaldson, Lufkin & Jenrette, Inc. - ------------ * Director Schedule G Executive Officers and Directors of Donaldson, Lufkin & Jenrette, Inc. The names of the Directors and the names and titles of the Executive Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of DLJ at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to DLJ and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * John S. Chalsty Chairman and Chief Executive Officer. * Joe L. Roby President and Chief Operating Officer * Claude Bebear (1) Chairman and Chief Executive Officer, AXA-UAP AXA-UAP 23, avenue Matignon 75008 Paris, France * Henri de Castries (1) Executive Vice President Financial Services AXA-UAP and Life Insurance Activities U.S. & U.K.), 23, avenue Matignon AXA-UAP 75008 Paris, France * Denis Duverne (1) Senior Vice President - International Life, AXA-UAP AXA-UAP 23, avenue Matignon 75008 Paris, France * Louis Harris Chairman and Chief Executive Officer, LH LH Research Research (research) 152 East 38th Street New York, New York 10016-2605 Henri G. Hottingeur (2) Chairman and Chief Executive Officer, * Banque Hottingeur Banque Hottingeur (banking) 38, rue de Provence 75009 Paris, France * W. Edwin Jarmain (3) President, Jarmain Group Inc. (private Jarmain Group Inc. investment holding company) Suite 2525, Box 36 121 King Street, West Toronto, Ontario M5H 3T9 Canada * Francis Jungers Retired 19880 NW Nestucca Drive Portland, Oregon 97229 * Joseph J. Melone Chairman of the Board, The Equitable Life 1290 Avenue of the Americas Assurance Society of the United States New York, New York 10104 * Edward D. Miller President and Chief Executive Officer, The 1290 Avenue of the Americas Equitable Companies Incorporated New York, New York 10104 * W. J. Sanders, III Chairman and Chief Executive Officer, Advanced Micro Devices, Inc. Advanced Micro Devices 901 Thompson Place Sunnyvale, CA 94086 * Stanley B. Tulin Executive Vice President and Chief Financial Officer, The Equitable Companies Incorporated * John C. West Retired Bothea, Jordan & Griffin 23B Shelter Cove Hilton Head Island, SC 29928 * Carl B. Menges Vice Chairman of the Board * Hamilton E. James Managing Director * Richard S. Pecther Managing Director * Theodore P. Shen Managing Director * Anthony F. Daddino Executive Vice President and Chief Financial Officer - ------------ * Director (1) Citizen of the Republic of France (2) Citizen of Canada (3) Citizen of Switzerland Schedule H Executive Officers and Directors of The Equitable Companies Incorporated The names of the Directors and the names and titles of the Executive Officers of The Equitable Companies Incorporated ("EQ") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of EQ at 1290 Avenue of the Americas, New York, New York 10104. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to EQ and each individual is a United States citizen.
Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear (1) Chairman of the Board; Chairman of the AXA-UAP Executive Board, AXA-UAP 23, avenue Matignon 75008 Paris, France * John S. Chalsty Chairman and Chief Executive Officer, Donaldson, Lufkin & Jenrette, Inc. Donaldson, Lufkin & Jenrette, Inc. 277 Park Avenue New York, NY 10172 * Francoise Colloc'h (1) Senior Executive Vice President, Group AXA-UAP Human Resources and Communications, 23, avenue Matignon AXA-UAP 75008 Paris, France * Henri de Castries (1) Vice Chairman of the Board; Senior AXA-UAP Executive Vice President, Financial Services 23, avenue Matignon and Life Insurance Activities, U.S. & U.K.), 75008 Paris, France AXA-UAP * Joseph L. Dionne Chairman and Chief Executive Officer, The The McGraw-Hill Companies McGraw-Hill Companies (publishing) 1221 Avenue of the Americas New York, NY 10020 * William T. Esrey Chairman and Chief Executive Officer, Sprint Sprint Corporation Corporation (telecommunications) P.O. Box 11315 Kansas City, MO 64112 * Jean-Rene Fourtou (1) Chairman and Chief Executive Officer, Rhone-Poulenc S.A. Rhone-Poulenc S.A. (manufacturer of 25 quai Paul Doumer chemicals and agricultural products) 92408 Courbevoie Cedex France * Jacques Friedmann (1) Chairman of the Supervisory Board, AXA-UAP AXA-UAP 9, Place Vendome 75001 Paris France Robert E. Garber Executive Vice President and General Counsel; Executive Vice President and General Counsel, The Equitable Life Assurance Society of the United States Jerome S. Golden Executive Vice President * Donald J. Greene, Esq. Counselor-at-Law, Partner, LeBoeuf, Lamb, LeBoeuf, Lamb, Greene Greene & MacRae, L.L.P. (law firm) & MacRae, L.L.P. 125 West 55th Street New York, NY 10019 * Anthony J. Hamilton (2) Group Chairman and Chief Executive Officer, Fox-Pitt, Kelton Group Fox-Pitt, Kelton Group Limited (finance) Limited 35 Wilson Street London, England EC2M 2SJ * John T. Hartley Retired Chairman and Chief Executive Harris Corporation Officer, currently Director, Harris 1025 NASA Boulevard Corporation (manufacturer of electronic, Melbourne, FL 32919 telephone and copying systems) * John H. F. Haskell, Jr. Director and Managing Director, SBC Dillon, Read & Co., Inc. Warburg Dillon Read, Inc. (formerly Dillon, 535 Madison Avenue Read & Co., Inc.) (investment banking firm) New York, NY 10022 Michael Hegarty Senior Executive Vice President and Chief Operating Officer; President and Chief Operating Officer, The Equitable Life Assurance Society of the United States * Mary R. (Nina) Henderson President, Best Foods Grocery of CPC CPC Specialty Markets Group International, Inc. (food manufacturer) 700 Sylvan Avenue Englewood, NJ 07632 * W. Edwin Jarmain (3) President, Jarmain Group Inc. (private Jarmain Group Inc. investment holding company) Suite 2525 121 King Street West Toronto, Ontario M5H 3T9 Canada * Joseph J. Melone Chairman of the Executive Committee of the Board; Chairman of the Executive Committee of the Board, The Equitable Life Assurance Society of the United States * Edward D. Miller President and Chief Executive Officer; Chairman and Chief Executive Officer, The Equitable Life Assurance Society of the United States Peter D. Noris Executive Vice President and Chief Investment Officer; Executive Vice President and Chief Investment Officer, The Equitable Life Assurance Society of the United States * Didier Pineau-Valencienne(1) Chairman and Chief Executive Officer, 64/70, avenue Jean Baptiste Clement Schneider S.A. (electric equipment) 92646 Boulogne Cedex, France * George J. Sella, Jr. Retired Chairman, President and Chief American Cyanamid Company Executive Officer, American Cyanamid P.O. Box 397 Company (manufacturer of pharmaceutical Newton, NJ 07860 products and agricultural products) Jose Suquet Executive Vice President; Executive Vice President and Chief Distribution Officer; The Equitable Life Assurance Society of the United States Stanley B. Tulin Executive Vice President and Chief Financial Officer; Senior Executive Vice President and Chief Financial Officer, The Equitable Life Assurance Society of the United States * Dave H. Williams Chairman and Chief Executive Officer, Alliance Capital Alliance Capital Management Corp. Management Corporation (investment adviser) 1345 Avenue of the Americas New York, NY 10105 - ------------ * Director (1) Citizen of the Republic of France (2) Citizen of United Kingdom (3) Citizen of Canada
Schedule I Members of Executive Committee and Supervisory Board of AXA-UAP The names and titles (for the Executive Committee members) of the Members of the Executive Committee and Supervisory Board of AXA-UAP and their business addresses and principal occupations are set forth below. If no address is given, the Member's business is 23, avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA-UAP and each individual is a citizen of the Republic of France. Members of the Executive Committee Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Claude Bebear Chairman of the Executive Board Donald Brydon (1) Senior Executive Vice President, AXA Asset Management Europe Henri de Castries Senior Executive Vice President, Financial Services and Insurance Activities (U.S. and U.K.) John Chalsty (2) Senior Executive Vice President; Chairman and Chief Executive Officer, Donaldson, Lufkin & Jenrette, Inc. (investment banking) Francoise Colloc'h Senior Executive Vice President, Group Human Resources and Communications Jean-Pierre Gerard (3) Senior Executive Vice President; Chief Executive Officer, Royale Belge (insurance) Denis Kessler Senior Executive Vice President, Insurance Activities outside France, U.K. and U.S. Claas Kleyboldt (4) Senior Executive Vice President; Chairman of the Executive Board of AXA Colonia (insurance) Gerard de La Martiniere Senior Executive Vice President, Chief Financial Officer Edward D. Miller (2) Senior Executive Vice President; President and Chief Executive Officer; Equitable Companies Incorporated Jean-Louis Meunier Senior Executive Vice President, Central Underwriting Officer Michel Pinault Senior Executive Vice President, Group Administration Claude Tendil Senior Executive Vice President, French Insurance Activities, international risks, transborder insurance projects and information systems policy Geoff Tomlinson (5) Senior Executive Vice President; Managing Director, National Mutual Holdings (insurance) Dave H. Williams (2) Senior Executive Vice President; Chairman and Chief Executive Officer, Alliance Capital Management Corporation (investment adviser) Mark Wood (1) Senior Executive Vice President Managing Director Sun Life & Provincial Members of the Supervisory Board
Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Jacques Friedmann Chairman of the Supervisory Board 9, Place Vendome 75008 Paris, France Jean-Louis Beffa Chairman and Chief Executive Officer, "Les Miroirs" Compagnie de St. Gobain (industry) Cedex 27 92096 Paris La Defense, France Antoine Bernheim General Partner, Lazard Freres et Cie 121, Boulevard Haussman (investment banking); Chairman, 75008 Paris, France Assicurazioni Generali S.p.A. (insurance) Jacques Calvet Former Chairman of the Executive Board, 75, avenue de la Grande Armee Peugeot S.A. (auto manufacturer) 75116 Paris, France Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis 4, avenue Van Dyke SCA (transportation) 75008 Paris, France David Dautresme General Partner, Lazard Freres et Cie 121, Boulevard Haussman (investment banking) 75008 Paris, France Guy Dejouany Honorary Chairman, Compagnie Generaledes 52, rue d'Anjou Eaux (industry and services) 75008 Paris, France Paul Desmarais (7) Chairman and Chief Executive Officer, Power 751, Square Victoria Corporation (industry and services) Montreal Quebec H3Y 3J7 Canada Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France Michel Francois-Poncet Chairman of the Supervisory Board, 5, rue d'Antin Compagnie Financiere de Paribas (financial 75002 Paris, France services and banking) Patrice Garnier Director, Finaxa Latreaumont 76360 Baretin, France Anthony J. Hamilton (1) General Partner, Fox-Pitt, Kelton Group 35 Wilson Street Limited (finance) London, England EC2M 2SJ Henri Hottinguer (6) Vice Chairman, Financiere Hottinguer 38, rue de Provence (banking) 75009 Paris, France Richard H. Jenrette (2) Senior Advisor, Donaldson, Lufkin & c/o Donaldson, Lufkin & Jenrette, Inc. Jenrette, Inc. (investment banking) 277 Park Avenue New York, New York 10172 Henri Lachmann Chairman and Chief Executive Officer, 56, rue Jean Giraudoux Strafor Facom (office furniture) 67200 Strasbourg, France Gerard Mestrallet Chairman of the Executive Board (finance) 1, rue d'Astorg Suez Lyonnaise des Eaux 75008 Paris, France Friedel Neuber Chairman of the Executive Board, Girozentrade Herzogstrasse 15 WestDeutsche Landesbank (banking) D40127 Dusseldorf, Germany Alfred von Oppenheim (4) Chairman, Bank Oppenheim (banking) Konsortium Oppenheim Unter Sachsenrausen 4 50667 Koln, Germany Michel Pebereau Chairman and Chief Executive Officer, 16, Boulevard des Italiens Banque Nationale de Paris (banking) 75009 Paris, France Didier Pineau-Valencienne Chairman and Chief Executive Officer, 64-70, avenue Jean Baptiste Clement Schneider S.A. (electric equipment) 92646 Boulogne Cedex, France Bruno Roger General Partner, Lazard Freres & Cie 121, Boulevard Hausmann (investment banking) 75008 Paris, France Simone Rozes First Honorary President, Cour de Cassation 2, rue Villaret de Joyeuse (government) 75017 Paris, France (1) Citizen of the United Kingdom (2) Citizen of the United States of America (3) Citizen of Belgium (4) Citizen of Germany (5) Citizen of Australia (6) Citizen of Switzerland (7) Citizen of Canada
Schedule J Executive Officers and Members of Conseil d'Administration of FINAXA The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of Finaxa and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of Finaxa at 23, avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Finaxa and each individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman and Chief Executive Officer; Chairman of the Executive Board, AXA-UAP * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis 4, avenue Van Dyke SCA (transportation) 75008 Paris, France * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Hottinguer (1) Chairman and Chief Executive Officer, 38, rue de Provence Banque Hottinguer (banking) 75009 Paris, France * Paul Hottinguer (1) Assistant Chairman and Chief Executive 38, rue de Provence Officer, Banque Hottinguer (banking) 75009 Paris, France * Henri Lachmann Chairman and Chief Executive Officer, 56, rue Jean Giraudoux Strafor Facom (office furniture) 67000 Strasbourg, France * Andre Levy-Lang Chief Executive Officer, Paribas 3, rue d'Antin (banking) 75002 Paris, France Christien Manset Vice Chairman of the Supervisory Board, 3, rue d'Antin Banque Paribas 75002 Paris, France * Georges Rousseau Retired 2, rue des Mouettes 76130 Mont Saint Aignan, France Emilio Ybarra (2) Chairman, Banco Bilbao Vizcaya (banking) Paseo de la Castillone, 8 28046 Madrid, Spain - ------------ * Member, Conseil d'Administration (1) Citizen of Switzerland (2) Citizen of Spain
Schedule K Executive Officers and Members of Conseil d'Administration of AXA ASSURANCES I.A.R.D. MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Assurances I.A.R.D. Mutuelle and each individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, 23, avenue Matignon AXA-UAP 75008 Paris, France Jean-Luc Bertozzi Executive Officer * Jean-Pierre Chaffin Manager, Federation de la Metallurgie 5, rue la Bruyere (industry) 75009 Paris, France * Gerard Coutelle Retired * Henri de Castries Senior Executive Vice President, Financial 23, avenue Matignon Services and Life Insurance Activities (U.S. 75008 Paris, France & U.K.), AXA-UAP * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Lachmann Chairman and Chief Executive Officer, 56, rue Jean Giraudoux Strafor Facom (office furniture) 67000 Strasbourg, France * Francois Richer Retired Georges Rousseau Retired * 2, rue des Mouettes 76130 Mont Saint Aignan, France * Claude Tendil Chief Executive Officer; Senior Executive Vice President, French Insurance Activities, AXA-UAP * Nicolas Thiery Chairman and Chief Executive Officer, 6 Cite de la Chapelle Etablissements Jaillard (management 75018 Paris, France consulting) * Francis Vaudour Chief Executive Officer, Segafredo Zanetti 14, boulevard Industriel France S.A. (coffee importing and processing) 76301 Sotteville les Rouen, France - ------------ * Member, Conseil d'Administration
Schedule L Executive Officers and Members of Conseil d'Administration of AXA ASSURANCES VIE MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Assurances Vie Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Assurances Vie Mutuelle and each individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, 23, avenue Matignon AXA-UAP 75008 Paris, France Jean-Luc Bertozzi Executive Vice President * Jean-Pierre Chaffin Manager, Federation de la Metallurgie 11, rue de Rome (industry) 75008 Paris, France * Henri de Castries Senior Executive Vice President, Financial 23, avenue Matignon Services and Life Insurance Activities (U.S. 75008 Paris, France & U.K.), AXA-UAP * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis 4, avenue Van Dyke SCA (transportation) 75008 Paris, France * Gerard Coutelle Retired * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Henri Lachmann Vice Chairman; Chairman and Chief 56, rue Jean Giraudoux Executive Officer, Strafor Facom (office 67000 Strasbourg, France furniture) * Francois Richer Retired * Georges Rousseau Retired 2, rue des Mouettes 76130 Mont Saint Aignan, France * Claude Tendil Chief Executive Officer; Senior Executive Tour Assur 38 Vice President, French Insurance Activities, 92083 Paris La Defense, France AXA-UAP * Nicolas Thiery Chairman and Chief Executive Officer, 6 Cite de la Chapelle Etablissements Jaillard (management 75018 Paris, France consulting) * Francis Vaudour Chief Executive Officer, Segafredo Zanetti 14, boulevard Industriel France S.A. (coffee importing and processing) 76301 Sotteville les Rouen, France - ------------ * Member, Conseil d'Administration
Schedule M Executive Officers and Members of Conseil d'Administration of AXA COURTAGE ASSURANCE MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Courtage Assurance Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Courtage Assurance Mutuelle and each individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, 23, avenue Matignon AXA-UAP 75008 Paris, France * Francis Cordier Chairman and Chief Executive Officer, Group rue Nicephore Niepce BP 232 76304 Demay Lesieur (food industry) Sotteville Les Rouen, France * Gerard Coutelle Retired * Henri de Castries Senior Executive Vice President, Financial 23, avenue Matignon Services and Life Insurance Activities (U.S. 75008 Paris, France & U.K.), AXA-UAP * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Lachmann Vice Chairman; Chairman and Chief 56, rue Jean Giraudoux Executive Officer, Strafor Facom (office 67000 Strasbourg, France furniture) * Francis Magnan Chairman and Chief Executive Officer, 50, boulevard des Dames Compagnie Daher (air and sea transportation) 13002 Marseille, France * Jean de Ribes Chairman and Chief Executive Officer, 38, rue Fortuny Banque Rivaud (banking) 75008 Paris, France * Georges Rousseau Retired 2, rue des Mouettes 76130 Mont Saint Aignan, France * Jean-Paul Saillard Manager, AXA-UAP 23, avenue Matignon 75008 Paris, France * Claude Tendil Chief Executive Officer; Senior Executive Tour Assur 38 Vice President, French Insurance Activities, 92083 Paris La Defense, France AXA-UAP - ------------ * Member, Conseil d'Administration
Schedule N Executive Officers and Members of Conseil d'Administration of ALPHA ASSURANCES VIE MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of Alpha Assurances Vie Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of Alpha Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Alpha Assurances Vie Mutuelle and each individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, 23, avenue Matignon AXA-UAP 75008 Paris, France * Henri Brischoux Corporate Secretary; AXA Assurance France Tour Assua 38 92083 Paris La Defense, France * Bernard Cornille Audit Manager, AXA Assurances 21, rue de Chateaudun 75009 Paris, France * Henri de Castries Senior Executive Vice President, Financial 23, avenue Matignon Services and Life Insurance Activities (U.S. 75008 Paris, France & U.K.), AXA-UAP * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis 4, avenue Van Dyke SCA (transportation) 75008 Paris, France * Claude Fath Chairman of the Executive Board, UAP Vie Tour Assur 28F 92083 Paris Las Defense, France * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Lachmann Vice Chairman; Chairman and Chief 56, rue Jean Giraudoux Executive Officer, Strafor Facom (office 67000 Strasbourg, France furniture) * Georges Rousseau Retired 2, rue des Mouettes 76130 Mont Saint Aignan, France * Claude Tendil Chief Executive Officer; Senior Executive Tour Assur 38 Vice President, French Insurance Activities, 92083 Paris La Defense, France AXA-UAP * Francis Vaudour Chief Executive Officer, Segafredo Zanetti 14, boulevard Industriel France S.A. (coffee importing and processing) 76301 Sotteville les Rouen, France - ------------ * Member, Conseil d'Administration
EX-1 2 EXHIBIT 1 Joint Filing Agreement ---------------------- In accordance with Rule 13d-1(f) under the Securities Exchange Act of 1934, as amended, each of the persons named below agrees to the joint filing of a Statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.01, of Fisher Scientific International, Inc., a Delaware corporation and further agrees that this Joint Filing Agreement be included as an exhibit to such filings provided that, as contemplated by Section 13d-1(f)(l)(ii), no person shall be responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate. This Joint Filing may be executed in any number of counterparts, all of which together shall constitute one and the same instrument. DLJ Merchant Banking Partners II, L.P. by: DLJ Merchant Banking II, Inc. its: Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ Merchant Banking Partners II-A, L.P. by: DLJ Merchant Banking II, Inc. its: Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ Millennium Partners, L.P. by: DLJ Merchant Banking II, Inc. its: Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ Millennium Partners-A, L.P. by: DLJ Merchant Banking II, Inc. its: Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ EAB Partners, L.P. by: DLJ LBO Plans Management Corporation its: Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President and Secretary DLJ Offshore Partners II, C.V. by: DLJ Merchant Banking II, Inc. its: Advisory General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ Merchant Banking II, LLC by: DLJ Merchant Banking II, Inc. its: Managing Member By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ Merchant Banking II, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ Diversified Partners, L.P. by: DLJ Diversified Partners, Inc. its: Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ Diversified Partners-A L.P. by: DLJ Diversified Partners, Inc. its: Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ Diversified Associates, L.P. by: DLJ Diversified Partners, Inc. its: General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ Diversified Partners, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer DLJ First ESC, L.P. by: DLJ LBO Plans Management Corporation its: Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President and Secretary DLJ ESC II, L.P. by: DLJ LBO Plans Management Corporation its: Managing General Partner By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President and Secretary DLJ LBO Plans Management Corporation By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President and Secretary DLJMB Funding II, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary DLJ Capital Investors, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Secretary and Treasurer UK Investment Plan 1997 Partners by: UK Investment Plan 1997, Inc. By: /s/ Majorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President, Secretary and Treasurer UK Investment Plan 1997, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President, Secretary and Treasurer Donaldson, Lufkin & Jenrette, Inc. By: /s/ Marjorie S. White ----------------------------------- Name: Marjorie S. White Title: Vice President and Secretary The Equitable Companies Incorporated By: /s/ Alvin H. Fenichel ----------------------------------- Name: Alvin H. Fenichel Title: Senior Vice President and Controller AXA-UAP Finaxa AXA Assurances I.A.R.D. Mutuelle AXA Assurances Vie Mutuelle AXA Courtage Assurance Mutuelle Alpha Assurances Vie Mutuelle Claude Bebear, as AXA Voting Trustee Patrice Garnier, as AXA Voting Trustee Henri de Clermont-Tonnerre, as AXA Voting Trustee Signed on behalf of each of the above By: /s/ Alvin H. Fenichel ----------------------------------- Name: Alvin H. Fenichel Title: Attorney-in-fact EX-2 3 EXHIBIT 2 Power of Attorney AXA, a societe anonyme organized under the laws of the Republic of France (the "Corporation"), hereby constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the Corporation and in the name, place and stead of the Corporation, in any and all capacities, to execute for and on behalf of the Corporation, all Schedules 13D and Schedules 13G as required by the Securities Exchange Act of 1934, as amended, and any and all amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, the issuer and relevant stock exchanges (individually, each a "Filing"); provided, however, that unless specifically instructed in writing by the Corporation, this Power of Attorney does not authorize any of the above-listed attorneys-in-fact and agents of the Corporation (or any person substituted or resubstituted therefor) to execute or file for or on behalf of the Corporation any Filing with respect to (i) the Common Stock, par value $.01 per share, of The Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware limited partnership. The Corporation hereby grants to such attorneys-in-fact and agents of the Corporation full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the Corporation might or could, and hereby ratifies and confirms all that said attorneys-in-fact and agents of the Corporation or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. The undersigned acknowledges that the foregoing attorneys-in-fact and agents of the Corporation, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities to comply with Section 13(d) of the Securities Exchange Act of 1934. The powers hereby conferred upon the said attorneys-in-fact and agents shall continue in force until notice of the revocation of this Power of Attorney has been received by the said attorneys-in-fact and agents of the Corporation. IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of Attorney this 24 day of June, 1996. AXA By: /s/ Claude Bebear -------------------------------- Name: Claude Bebear Title: Chairman and Chief Executive Officer Power of Attorney Finaxa, a societe anonyme organized under the laws of the Republic of France (the "Corporation"), hereby constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the Corporation and in the name, place and stead of the Corporation, in any and all capacities, to execute for and on behalf of the Corporation, all Schedules 13D and Schedules 13G as required by the Securities Exchange Act of 1934, as amended, and any and all amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, the issuer and relevant stock exchanges (individually, each a "Filing"); provided, however, that unless specifically instructed in writing by the Corporation, this Power of Attorney does not authorize any of the above-listed attorneys-in-fact and agents of the Corporation (or any person substituted or resubstituted therefor) to execute or file for or on behalf of the Corporation any Filing with respect to (i) the Common Stock, par value $.01 per share, of The Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware limited partnership. The Corporation hereby grants to such attorneys-in-fact and agents of the Corporation full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the Corporation might or could, and hereby ratifies and confirms all that said attorneys-in-fact and agents of the Corporation or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. The undersigned acknowledges that the foregoing attorneys-in-fact and agents of the Corporation, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities to comply with Section 13(d) of the Securities Exchange Act of 1934. The powers hereby conferred upon the said attorneys-in-fact and agents shall continue in force until notice of the revocation of this Power of Attorney has been received by the said attorneys-in-fact and agents of the Corporation. IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of Attorney this 24 day of June, 1996. FINAXA By: /s/ Claude Bebear -------------------------------- Name: Claude Bebear Title: Chairman and Chief Executive Officer Power of Attorney AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company organized under the laws of the Republic of France (the "Corporation"), hereby constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the Corporation and in the name, place and stead of the Corporation, in any and all capacities, to execute for and on behalf of the Corporation, all Schedules 13D and Schedules 13G as required by the Securities Exchange Act of 1934, as amended, and any and all amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, the issuer and relevant stock exchanges (individually, each a "Filing"); provided, however, that unless specifically instructed in writing by the Corporation, this Power of Attorney does not authorize any of the above-listed attorneys-in-fact and agents of the Corporation (or any person substituted or resubstituted therefor) to execute or file for or on behalf of the Corporation any Filing with respect to (i) the Common Stock, par value $.01 per share, of the Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware limited partnership. The Corporation hereby grants to such attorneys-in-fact and agents of the Corporation full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the Corporation might or could, and hereby ratifies and confirms all that said attorneys-in-fact and agents of the Corporation or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. The undersigned acknowledges that the foregoing attorneys-in-fact and agents of the Corporation, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities to comply with Section 13(d) of the Securities Exchange Act of 1934. The powers hereby conferred upon the said attorneys-in-fact and agents shall continue in force until notice of the revocation of this Power of Attorney has been received by the said attorneys-in-fact and agents of the Corporation. IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of Attorney this 24 day of June, 1996. AXA ASSURANCES I.A.R.D. MUTUELLE By: /s/ Claude Tendil -------------------------------- Name: Claude Tendil Title: Chief Executive Officer Power of Attorney AXA Assurances Vie Mutuelle, a mutual insurance company organized under the laws of the Republic of France (the "Corporation"), hereby constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the Corporation and in the name, place and stead of the Corporation, in any and all capacities, to execute for and on behalf of the Corporation, all Schedules 13D and Schedules 13G as required by the Securities Exchange Act of 1934, as amended, and any and all amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, the issuer and relevant stock exchanges (individually, each a "Filing"); provided, however, that unless specifically instructed in writing by the Corporation, this Power of Attorney does not authorize any of the above-listed attorneys-in-fact and agents of the Corporation (or any person substituted or resubstituted therefor) to execute or file for or on behalf of the Corporation any Filing with respect to (i) the Common Stock, par value $.01 per share, of the Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware limited partnership. The Corporation hereby grants to such attorneys-in-fact and agents of the Corporation full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the Corporation might or could, and hereby ratifies and confirms all that said attorneys-in-fact and agents of the Corporation or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. The undersigned acknowledges that the foregoing attorneys-in-fact and agents of the Corporation, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities to comply with Section 13(d) of the Securities Exchange Act of 1934. The powers hereby conferred upon the said attorneys-in-fact and agents shall continue in force until notice of the revocation of this Power of Attorney has been received by the said attorneys-in-fact and agents of the Corporation. IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of Attorney this 24 day of June, 1996. AXA ASSURANCES VIE MUTUELLE By: /s/ Claude Tendil -------------------------------- Name: Claude Tendil Title: Chief Executive Officer Power of Attorney Uni Europe Assurance Mutuelle, a mutual insurance company organized under the laws of the Republic of France (the "Corporation"), hereby constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the Corporation and in the name, place and stead of the Corporation, in any and all capacities, to execute for and on behalf of the Corporation, all Schedules 13D and Schedules 13G as required by the Securities Exchange Act of 1934, as amended, and any and all amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, the issuer and relevant stock exchanges (individually, each a "Filing"); provided, however, that unless specifically instructed in writing by the Corporation, this Power of Attorney does not authorize any of the above-listed attorneys-in-fact and agents of the Corporation (or any person substituted or resubstituted therefor) to execute or file for or on behalf of the Corporation any Filing with respect to (i) the Common Stock, par value $.01 per share, of the Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware limited partnership. The Corporation hereby grants to such attorneys-in-fact and agents of the Corporation full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the Corporation might or could, and hereby ratifies and confirms all that said attorneys-in-fact and agents of the Corporation or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. The undersigned acknowledges that the foregoing attorneys-in-fact and agents of the Corporation, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities to comply with Section 13(d) of the Securities Exchange Act of 1934. The powers hereby conferred upon the said attorneys-in-fact and agents shall continue in force until notice of the revocation of this Power of Attorney has been received by the said attorneys-in-fact and agents of the Corporation. IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of Attorney this 24 day of June, 1996. UNI EUROPE ASSURANCE MUTUELLE By: /s/ Claude Tendil -------------------------------- Name: Claude Tendil Title: Chief Executive Officer Power of Attorney Alpha Assurances Vie Mutuelle, a mutual insurance company organized under the laws of the Republic of France (the "Corporation"), hereby constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the Corporation and in the name, place and stead of the Corporation, in any and all capacities, to execute for and on behalf of the Corporation, all Schedules 13D and Schedules 13G as required by the Securities Exchange Act of 1934, as amended, and any and all amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, the issuer and relevant stock exchanges (individually, each a "Filing"); provided, however, that unless specifically instructed in writing by the Corporation, this Power of Attorney does not authorize any of the above-listed attorneys-in-fact and agents of the Corporation (or any person substituted or resubstituted therefor) to execute or file for or on behalf of the Corporation any Filing with respect to (i) the Common Stock, par value $.01 per share, of The Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware limited partnership. The Corporation hereby grants to such attorneys-in-fact and agents of the Corporation full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the Corporation might or could, and hereby ratifies and confirms all that said attorneys-in-fact and agents of the Corporation or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. The undersigned acknowledges that the foregoing attorneys-in-fact and agents of the Corporation, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities to comply with Section 13(d) of the Securities Exchange Act of 1934. The powers hereby conferred upon the said attorneys-in-fact and agents shall continue in force until notice of the revocation of this Power of Attorney has been received by the said attorneys-in-fact and agents of the Corporation. IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of Attorney this 24 day of June, 1996. ALPHA ASSURANCES VIE MUTUELLE By: /s/ Claude Tendil -------------------------------- Name: Claude Tendil Title: Chief Executive Officer Power of Attorney Claude Bebear, as a Voting Trustee (the "Trustee"), pursuant to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe anonyme organized under the laws of the Republic of France, and the Voting Trustees identified therein, hereby constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the Trustee and in the name, place and stead of the Trustee, in any and all capacities, to execute for and on behalf of the Trustee, all Schedules 13D and Schedules 13G as required by the Securities Exchange Act of 1934, as amended, and any and all amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, the issuer and relevant stock exchanges (individually, each a "Filing"); provided, however, that unless specifically instructed in writing by the Trustee, this Power of Attorney does not authorize any of the above-listed attorneys-in-fact and agents of the Trustee (or any person substituted or resubstituted therefor) to execute or file for or on behalf of the Trustee any Filing with respect to (i) the Common Stock, par value $.01 per share, of The Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware limited partnership. The Trustee hereby grants to such attorneys-in-fact and agents of the Trustee full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the Trustee might or could, and hereby ratifies and confirms all that said attorneys-in-fact and agents of the Trustee or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. The undersigned acknowledges that the foregoing attorneys-in-fact and agents of the Trustee, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities to comply with Section 13(d) of the Securities Exchange Act of 1934. The powers hereby conferred upon the said attorneys-in-fact and agents shall continue in force until notice of the revocation of this Power of Attorney has been received by the said attorneys-in-fact and agents of the Trustee. IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of Attorney this 24 day of June, 1996. By: /s/ Claude Bebear -------------------------------- Name: Claude Bebear Title: Voting Trustee Power of Attorney Henri de Clermont-Tonnerre, as Voting Trustee (the "Trustee"), pursuant to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe anonyme organized under the laws of the Republic of France and the Voting Trustees identified herein, hereby constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the Trustee and in the name, place and stead of the Trustee, in any and all capacities, to execute for and on behalf of the Trustee, all Schedules 13D and Schedules 13G as required by the Securities Exchange Act of 1934, as amended, and any and all amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, the issuer and relevant stock exchanges (individually, each a "Filing"); provided, however, that unless specifically instructed in writing by the Trustee, this Power of Attorney does not authorize any of the above-listed attorneys-in-fact and agents of the Trustee (or any person substituted or resubstituted therefor) to execute or file for or on behalf of the Trustee any Filing with respect to (i) the Common Stock, par value $.01 per share, of The Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware limited partnership. The Trustee hereby grants to such attorneys-in-fact and agents of the Trustee full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the Trustee might or could, and hereby ratifies and confirms all that said attorneys-in-fact and agents of the Trustee or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. The undersigned acknowledges that the foregoing attorneys-in-fact and agents of the Trustee, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities to comply with Section 13(d) of the Securities Exchange Act of 1934. The powers hereby conferred upon the said attorneys-in-fact and agents shall continue in force until notice of the revocation of this Power of Attorney has been received by the said attorneys-in-fact and agents of the Trustee. IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of Attorney this 24 day of June, 1996. By: /s/ Henri de Clermont-Tonnerre -------------------------------- Name: Henri de Clermont-Tonnerre Title: Voting Trustee Power of Attorney Patrice Garnier, as a Voting Trustee (the "Trustee"), pursuant to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe anonyme organized under the laws of Republic of France, and the Voting Trustees identified therein, hereby constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the Trustee and in the name, place and stead of the Trustee, in any and all capacities, to execute for and on behalf of the Trustee, all Schedules 13D and Schedules 13G as required by the Securities Exchange Act of 1934, as amended, and any and all amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, the issuer and relevant stock exchanges (individually, each a "Filing"); provided, however, that unless specifically instructed in writing by the Trustee, this Power of Attorney does not authorize any of the above-listed attorneys-in-fact and agents of the Trustee (or any person substituted or resubstituted therefor) to execute or file for or on behalf of the Trustee any Filing with respect to (i) the Common Stock, par value $.01 per share, of The Equitable Companies Incorporated, a Delaware corporation or (ii) the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware limited partnership. The Trustee hereby grants to such attorneys-in-fact and agents of the Trustee full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the Trustee might or could, and hereby ratifies and confirms all that said attorneys-in-fact and agents of the Trustee or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. The undersigned acknowledges that the foregoing attorneys-in-fact and agents of the Trustee, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities to comply with Section 13(d) of the Securities Exchange Act of 1934. The powers hereby conferred upon the said attorneys-in-fact and agents shall continue in force until notice of the revocation of this Power of Attorney has been received by the said attorneys-in-fact and agents of the Trustee. IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of Attorney this 24 day of June, 1996. By: /s/ Patrice Garnier -------------------------------- Name: Patrice Garnier Title: Voting Trustee EX-3 4 FSI MERGER CORP. INVESTORS' SUBSCRIPTION AGREEMENT This Investors Subscription Agreement (the "Agreement") is entered into as of the 21st day of January, 1998 by and between FSI MERGER CORP., a Delaware corporation ("the "Company") and (i) each of the investors listed on Exhibit A attached hereto (individually, an "Equity Investor" and collectively, the "Equity Investors") and (ii) those persons listed on Exhibit B (individually, an "Individual Investor" and with (i) above, "Investors"). WHEREAS, the Company has been established to enable the Investors to make an investment in Fisher Scientific International Inc. ("Fisher"), a Delaware corporation, through a recapitalization transaction (the "Transaction"), pursuant to that certain Second Amended and Restated Agreement and Plan of Merger, dated as of November 14, 1997, as amended (the "Merger Agreement"), by and between Fisher and the Company; and WHEREAS, the Investors wish to purchase from the Company and the Company wishes to issue and sell to such Investors, shares of the Company's capital stock, subject to the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement, the parties to this Agree-ment, intending to be legally bound, mutually agree as follows: ARTICLE 1 Purchase and Sale of Shares --------------------------- 1.1 Sale and Issuance of Shares. Subject to the terms and conditions of this Agreement, each Investor hereby subscribes for and agrees to purchase at the Closing (as herein defined), and the Company does hereby agree to sell to each Investor at the Closing, the aggregate number of shares of the Company's Common Stock, par value $.01 per share ("Voting Common Stock") and shares of the Company's Non-Voting Common Stock, par value $.01 per share ("Non-Voting Common Stock" and together with Voting Common Stock, "Common Stock") set forth opposite each Investor's name on Exhibits A and B (collectively, the "Shares") at a purchase price of $48.25 per share of Common Stock for the total consideration set forth opposite each Investor's name on Exhibits A and B. Each Investor hereby acknowledges that the number of Shares set forth opposite its name on Exhibits A and B constitutes the full, entire and correct number of Shares to be purchased by it pursuant to this Agreement for the amount of consideration set forth next to the name of such Investor on Exhibits A and B. 1.2 Delivery of Purchase Price. In consideration of and in exchange for the Shares to be purchased hereunder, each Investor shall deliver to the Com pany at the Closing (as hereinafter defined), the aggregate purchase price set forth opposite such Investors' name on Exhibits A and B (the "Purchase Price"), payable by wire transfer of immediately available funds. 1.3 Closing. The closing of the purchase and sale of the Shares (the "Closing") shall occur immediately prior to the closing of the Merger (as defined below) and shall occur at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York, or at such other time and place as the Company and the Investors may agree (the "Closing Date"). In consideration of the purchase by each Investor of the Shares and the payment of the Purchase Price therefor, the Company shall deliver to each Investor at the Closing a certificate or certificates evidencing the number of Shares purchased by each Investor , as set forth on Exhibits A and B. 1.4. Merger. Immediately following the Closing hereunder, the Company will be merged (the "Merger") with and into Fisher with Fisher surviving the Merger (the "Surviving Corporation"). In the Merger, all the Shares held by the Investors will be converted into shares of capital stock in the Surviving Corporation on a one-for-one basis, with the result that, immediately following the Merger, the Investors shall hold (together with shares purchased directly pursuant to the Merger Agreement) that number of shares of capital stock in the Surviving Corporation, and such shares of capital stock after such conversion shall be referred to as "Shares." ARTICLE II Representations and Warranties of the Company --------------------------------------------- The Company represents and warrants to each Investor that: 1.1 Organization and Standing. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted and as proposed to be conducted. 2.2 Capitalization. Immediately prior to the Closing, the authorized capital of the Company consists of (or will consist of at the Closing) 6,000,000 shares of Voting Common Stock, par value $.01 per share and 1,000,000 shares of Non-Voting Common Stock, par value $.01 per share. Immediately prior to the purchase of shares pursuant to this Agreement, 100 shares of the Company's Common Stock were issued and outstanding, and no such shares were held in treasury. Immediately prior to the Closing, there were not any existing options, warrants, calls, subscriptions, or other rights, or other agreements or commitments, other than in connection with this Agreement, obligating the Company to issue, transfer or sell any shares of capital stock of the Company. Immediately after the Closing and prior to the Merger, there will be 5,471,857 shares of the Company's Voting Common Stock issued and outstanding and 807,058 shares of the Company's Non-Voting Common Stock issued and outstanding. The authorized capital of the Surviving Corporation, as of the Merger, will consist of 50,000,000 shares of Common Stock, par value $.01 per share, 15,000,000 shares of preferred stock, par value $.01 per share of which 500,000 shares are designated Series A Junior Participating Preferred Stock, par value $.01 per share. As of the close of business on January 20, 1998, 20,356,764 shares of the Surviving Corporation's Common Stock were issued and outstanding, and no such shares were held in treasury. The Surviving Corporation has no shares of Preferred Stock issued and outstanding. As of January 20, 1998, except for (i) 3,555,774 shares reserved for issuance pursuant to outstanding options and rights granted under the stock plans and (ii) 500,000 shares of Junior Preferred Stock reserved for issuance upon exercise of certain rights, there are not now, and at the Effective Time there will not be, any existing options, warrants, calls, subscriptions, or other rights, or other agreements or commitments, obligating the Surviving Corporation to issue, transfer or sell any shares of capital stock of the Surviving Corporation or any of its subsidiaries. 2.3 Corporate Activity. The Company was created for the sole purpose of effecting the Merger and has conducted no activity and has incurred no liability (other than in connection with the Merger and its financing). 2.4 Authorization. All corporate action on the part of the Company necessary for the authorization, execution, delivery and performance of this Agreement by the Company and for the authorization, issuance and delivery of the Shares being sold under this Agreement, has been taken. This Agreement, when executed and delivered by all parties hereto, shall constitute the valid and legally binding obligation of the Company and shall be enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by bankruptcy laws, insolvency laws, reorganization laws, moratorium laws or other laws affecting creditors' rights generally and except to the extent enforceability may be limited by general equitable principles. 2.5 Validity of Shares. The Shares, when issued, sold and delivered in accor dance with the terms of this Agreement, shall be duly and validly issued, fully paid and nonassessable. 2.6 Securities Act. The sale of Shares in accordance with the terms of this Agreement (assuming the accuracy of the representations and warranties of the Investors contained in Article III hereof) is exempt from the registration requirements of the Securities Act of 1933, as amended (the "1933 Act"). 2.7 Reservation of Shares. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Voting Common Stock or its treasury shares, solely for the purpose of issuance upon the conversion of shares of Non-Voting Common Stock, such number of shares of such class as are then issuable upon the conversion of all outstanding shares of Non-Voting Common Stock which may be converted. 2.8 Non-Contravention. The execution and delivery of this Agreement by the Company does not, and the consummation by the Company of the transactions contemplated hereby and the performance by the Company of the obligations which it is obligated to perform hereunder will not, (a) violate any provision of the articles of association, by-laws, agreement of limited partnership or other organizational documents of the Company, (b) violate in any material respect any material law, regulation, rule, order, judgment or decree to which the Company is subject, (c) violate in any material respect, result in the termination or the acceleration of, or conflict with in any material respect or constitute a material default under, any material mortgage, indenture, lease, franchise, license, permit, agreement or instrument (each, a "Contract") to which the Company is a party or by which any of its assets or properties are bound. 2.9 Consents, Approvals and Notices. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require any (a) material consent, authorization, order or approval of, filing or registration with, or notice to, any governmental or regulatory authority, which has not been obtained previously, or (b) material consent, authorization, approval, waiver, order, license, certificate or permit or act of or from, or notice to, any party to any Contract to which the Company is a party or by which any of its assets or properties are bound, which has not been obtained previously. 2.10 Litigation. There is no action, suit or proceeding pending or, to the knowledge of the Company, threatened, before any court against the Company which challenges the validity or the propriety of the transactions contemplated by this Agreement. ARTICLE III Representations, Warranties and Agreements of the Investors --------------------------- Each Investor represents and warrants, in each instance as to itself only and not as to any other Investor, to the Company that: 3.1 Organization; Authority. Each Equity Investor is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. Each Individual Investor has the legal capacity to enter into this Agreement. Each Investor has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by each Investor of this Agreement and the consummation by such Investor of the transactions contemplated hereby have been duly authorized by all necessary action on the part of such Investor. 3.2. Enforceability. This Agreement, when executed and delivered by all parties hereto, will constitute the valid and legally binding obligation of each Investor, enforceable against each Investor in accordance with its terms, except to the extent enforceability may be limited by bankruptcy laws, insolvency laws, reorganization laws, moratorium laws or other laws affecting creditors' rights generally and except to the extent enforceability may be limited by general equitable principles. Each Individual Investor entered into and is bound by this Agreement in satisfaction of a commitment made by such Individual Investor to subscribe for the number of Shares set forth in Exhibit B for such Individual Investor prior to December 18, 1997. 3.3. Non-Contravention. The execution and delivery of this Agreement by each Investor does not, and the consummation by such Investor of the transactions contemplated hereby and the performance by such Investor of the obligations which it is obligated to perform hereunder will not, (a) violate any provision of the articles of association, by-laws, agreement of limited partnership or other organizational documents of such Investor, (b) violate in any material respect any material law, regulation, rule, order, judgment or decree to which such Investor is subject, (c) violate in any material respect, result in the termination or the acceleration of, or conflict with in any material respect or constitute a material default under, any material Contract to which such Investor is a party or by which any of its assets or properties are bound or (d) result in the creation of any lien or other encumbrance on any of the material assets or properties of such Investor or the loss of any material license or other material contractual right with respect thereto. 3.4. Consents, Approvals and Notices. The execution and delivery of this Agreement by each Investor and the consummation by each Investor of the transactions contemplated hereby does not require any (a) material consent, authorization, order or approval of, filing or registration with, or notice to, any governmental or regulatory authority, which has not been obtained previously, or (b) material consent, authorization, approval, waiver, order, license, certificate or permit or act of or from, or notice to, any party to any Contract to which such Investor is a party or by which any of its assets or properties are bound, which has not been obtained previously. 3.5. Litigation. There is no action, suit or proceeding pending or, to the knowledge of any Investor, threatened, before any court against such Investor which challenges the validity or the propriety of the transactions contemplated by this Agreement. 3.6 Investment Representations. (a) This Agreement is made in reliance upon each Investor's representations to the Company, which by acceptance hereof each Investor hereby confirms, that: (i) the Shares will be acquired by such Investor for investment only, for its own account and not as a nominee or agent and not with a view to the sale or distribution of any part thereof in violation of applicable federal and state securities laws; and (ii) such Investor has no current intention of selling, granting participation in or otherwise distributing the Shares in violation of applicable federal and state securities laws. By executing this Agreement, each Investor further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person, or to any third person, with respect to any of the Shares in violation of applicable federal and state securities laws. (b) Each Investor understands that the Shares have not been registered under the 1933 Act on the basis that the sale provided for in this Agreement and the issuance of securities hereunder are exempt from registration under the 1933 Act pursuant to Section 4(2) thereof and regulations issued thereunder, and that the Company's reliance on such exemption is predicated on the representations and warranties of each Investor set forth herein. (c) Each Investor represents that it has, either alone or together with the assistance of a "purchaser representative" (as that term is defined in Regulation D promulgated under the 1933 Act), such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Company. Each Investor further represents that it is familiar with the business and financial condition, properties, operations and prospects of the Company and that it has had access, during the course of the transactions contemplated hereby and prior to its purchase of Shares, to the same kind of information that is specified in Part I of a registration statement under the 1933 Act, and that it has had the opportunity to ask questions of, and receive answers from, the Company and the Surviving Corporation concerning the terms and conditions of the investment and to obtain additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of any information furnished to such Investor or to which such Investor has had access. Each Investor has made, either alone or together with its advisors, such independent investigation of the Company and the Surviving Corporation as each Investor deems to be, or its advisors deem to be, necessary or advisable in connection with this investment. Each Investor understands that no federal or state agency has passed upon this investment or upon the Company or the Surviving Corporation, nor has any such agency made any finding or determination as to the fairness of this investment. (d) Each Investor represents that it will not sell, transfer or otherwise dispose of the Shares without registration under the 1933 Act and applicable state securities laws, or an exemption therefrom. Each Investor understands that, in the absence of an effective registration statement covering the Shares or an available exemption from registration under the 1933 Act and applicable state securities laws, the Shares must be held indefinitely. In particular, each Investor acknowledges that it is aware that the Shares may not be sold pursuant to Rule 144 promulgated under the 1933 Act unless all of the conditions of such rule are met. Among the current conditions for use of Rule 144 by certain holders is the availability to the public of current information about the Surviving Corporation. Each Investor represents that, in the absence of an effective registration statement covering the Shares or an exemption from registration under the 1933 Act, it will sell, transfer or otherwise dispose of the Shares only in a manner consistent with its representations set forth herein and then only in accordance with the Investors' Agreement referred to in Section 6.1. (e) Each Investor represents that it (i) is capable of bearing the economic risk of holding the unregistered Shares for an indefinite period of time and has adequate means for providing for its current needs and contingencies, (ii) can afford to suffer a complete loss of this investment and (iii) understands all risk factors related to the purchase of the Shares. (f) Each Investor understands that the purchase of the Shares involves a high degree of risk, that there is no established market for the Shares and that it is not likely that any public market for the Shares will develop in the near future. (g) Each Investor represents that neither it nor anyone acting on its behalf has paid any commission or other remuneration to any person in connection with the purchase of the Shares. (h) Independent of the additional restrictions on the transfer of the shares of Common Stock contained in the Investors' Agreement referred to in Section 6.1, each Investor agrees that it will not transfer, dispose of or pledge any of the Shares other than pursuant to an effective registration statement under the 1933 Act and applicable state securities laws, unless and until (i) such Investor shall have notified the Company of the proposed transfer, disposition or pledge and shall have furnished the Company with a statement of the circumstances surrounding the proposed transfer, disposition or pledge and (ii) if reasonably requested by the Company and at the expense of each Investor or its transferee, such Investor shall have furnished to the Company an opinion of counsel reasonably satisfactory (as to counsel, which in the case of the Equity Investors, may include internal counsel, and as to substance) to the Company and its counsel that such proposed transfer, disposition or pledge may be made without registration of such Shares under the 1933 Act and applicable state securities laws. 3.7 Legends; Stop Transfer. (a) Each Investor acknowledges that all certificates evidencing the Shares shall bear the following legend: "TRANSFER RESTRICTED -------------------- The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or any state Securities Laws and may not be offered or sold except in compliance therewith. The securities represented by this certificate are subject to the terms and conditions, including certain restrictions on transfer, of an Investors' Agreement dated as of January 21, 1998, as amended from time to time, and none of such securities, or any interest therein, shall be transferred, pledged, encumbered or otherwise disposed of except as provided in that Agreement. A copy of the Investors' Agreement is on file with the Secretary of the Company and will be mailed to any properly interested person without charge within five (5) days after receipt of a written request." (b) The certificates evidencing the Shares shall also bear any legend required by any applicable state securities law. (c) In addition, the Company shall make a notation regarding the restrictions on transfer of the Shares in its stock books, and the Shares shall be transferred on the books of the Company only if transferred or sold pursuant to an effective registration statement under the 1933 Act and applicable state securities laws covering such Shares or pursuant to and in compliance with the provisions of Section 3.6(h) hereof. All common stock of the Company and/or the Surviving Corporation hereafter issued to any Investor shall bear the same endorsement, shall be subject to all the terms and conditions of this Agreement, and for all purposes shall be deemed shares of "Common Stock" hereunder. A copy of this Agreement, together with any amendments thereto, shall remain on file with the Secretary of the Company and shall be available for inspection to any properly interested person without charge within five days after the Company's receipt of a written request therefor. 3.8 Definition of Shares. Notwithstanding anything to the contrary contained herein, each Investor hereby acknowledges and agrees that each representation and warranty made in this Article III is made with respect to Shares purchased pursuant to this Agreement and shares of capital stock in the Surviving Corporation issued in the Merger for the Shares purchased hereunder. 3.9 Brokers. No broker, investment banker, financial advisor or other person or entity is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any Investor or any of its affiliates. ARTICLE IV Conditions to Obligations of the Investors at Closing ----------------------------------------------------- The obligations of each Investor under Article I of this Agreement are subject to the fulfillment on or before the Closing Date of each of the following conditions: 4.1 Representations and Warranties. The representations, warranties and agreements of the Company contained in Article II hereof shall be true on and as of the Closing Date with the same force and effect as if they had been made on the Closing Date. 4.2 Performance by the Company. The Company shall have performed in all material respects all of its obligations and shall have materially complied with each and all of its covenants required to be performed or complied with by it on or before the Closing Date. 4.3 Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall have been duly obtained and shall be effective on and as of the Closing Date. ARTICLE V Conditions to Obligations of the Company at Closing --------------------------------------------------- The obligations of the Company under Article I of this Agreement are subject to the fulfillment on or before the Closing Date of each of the following conditions: 5.1 Representations. The representations, warranties and agreements of the Investors contained in Article III hereof shall be true on and as of the Closing Date with the same force and effect as if they had been made on the Closing Date. 5.2 Performance. Each Investor shall have performed in all material respects all of its obligations and shall have materially complied with each and all of its covenants required to be performed or complied with by it on or before the Closing Date, including without limitation the execution and delivery of the agreements and undertakings provided for in this Agreement. 5.3 Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall have been duly obtained and shall be effective on and as of the Closing Date. ARTICLE VI Mutual Conditions Precedent --------------------------- The obligations of the Company and of each Investor under Article I of this Agreement are subject to the fulfillment on or before the Closing Date of the following conditions: 6.1 Investors' Agreement. The Company and each of the Investors identified on Exhibits A and B shall have executed and delivered the Investors' Agreement in substantially the form attached as Exhibit C hereto. 6.2 Merger Conditions. All conditions precedent to the Closing of the Merger shall have been performed or waived as of the Closing Date in accordance with the terms of the Merger Agreement. 6.3 Simultaneous Purchase. Each Investor listed on Exhibits A and B hereto shall have simultaneously purchased at the Closing the number of Shares set forth opposite each Investor's name for the consideration specified. ARTICLE VII Use of Proceeds --------------- The cash proceeds from the sale of the Shares hereunder will be used to provide the Company with funds for certain of the payments which are required to be made by the Company in connection with the Transaction. ARTICLE VIII Miscellaneous ------------- 8.1 Termination. (a) This Agreement may be terminated (as to the party electing so to terminate it) at any time prior to the Closing Date: (i) by any party hereto if the Merger shall not have been consummated by the close of business on January 31, 1998; (ii) by an Investor if any of the conditions specified in Article IV or VI of this Agreement have not been met or waived by it pursuant to the terms of this Agreement by the Closing Date, or at such earlier date that it becomes apparent that any such condition can no longer be satisfied; or (iii) by the Company if any of the conditions specified in Article V or VI of this Agreement have not been met or waived by it pursuant to the terms of this Agreement by the Closing Date or at such earlier date that it becomes apparent that any such condition can no longer be satisfied. (b) If the Merger shall not have been consummated by the close of business on January 22, 1998, the funds delivered by the Investors shall be delivered to and held by an escrow agent, on terms which are reasonably acceptable to Investors holding a majority of the funds contributed. 8.2 No Waiver; Modifications in Writing. No failure or delay on the part of the Company or the Investors in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Company or each Investor at law or in equity or otherwise. No waiver of or consent to any departure by the Company from any provision of this Agreement shall be effective unless signed in writing by the party entitled to the benefit thereof, provided that notice of any such waiver shall be given to each party hereto as set forth below. This Agreement, together with the Exhibits hereto, sets forth the entire understanding of the parties and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof. Except as otherwise provided herein, no amendment, modification or termination of any provision of this Agreement shall be effective unless signed in writing by or on behalf of the Company and each Investor. Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provision of this Agreement, and any consent to any departure by the Company from the terms of any provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement, no notice to or by or demand to or on the Company in any case shall entitle or obligate the Company to any other or further notice or demand in similar or other circumstances. 8.3 Notices. All notices and other communications necessary or contemplated under this Agreement shall be in writing and shall be delivered in the manner specified herein. All notices shall be deemed to have been duly given upon confirmation by telecopy if delivered by telecopy or by hand, or one day after sending by overnight delivery service, or five days after sending by certified mail, postage prepaid, return receipt requested to the respective addresses of the parties set forth below: (a) for notices and communications to the Company: Thomas H. Lee Company 75 State Street Boston, Massachusetts 02109 Fax: (617) 227-3514 Attention: Anthony J. DiNovi with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 919 Third Avenue New York, New York 10022 Fax: (212) 735-2000 Attention: Eric L. Cochran, Esq. (b) for notices and communications to (i) each Equity Investor, to its address as set forth under each Equity Investor's name in Exhibit A, and (ii) each Individual Investor, to his attention in care of Thomas H. Lee Company. By notice complying with the foregoing provisions of this Section 8.3, each party shall have the right to change the notice address for future notices and communications to such party. 8.4 Costs, Expenses and Taxes. The Company shall pay the Company's and each Investor's costs and expenses incurred in connection with this Agreement and the Investors' Agreement, any amendment or supplement to or modification of any of the foregoing, and any and all other documents furnished pursuant hereto or thereto or in connection herewith or therewith. The Company shall pay any and all stamp, transfer and other similar taxes payable or determined to be payable in connection with the execution and delivery of this Agreement or the original issuance of the Shares but excluding all federal, state and local income or similar taxes and shall save and hold each Investor harmless from and against any and all liabilities with respect to or resulting from any delay in paying, or omission to pay, such taxes. The Company shall bear all expenses of shipping certificates evidencing the Shares (including, without limitation, insurance expenses) from the location of the Closing to such other places within the United States of America as the Investor shall specify. 8.5 Execution of Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which, taken together, shall constitute but one and the same Agreement. 8.6 Binding Effect; Assignment. The rights and obligations of any or all of the Investors under this Agreement may not be assigned to any other person. Except as expressly provided in this Agreement, this Agreement shall not be construed so as to confer any right or benefit upon any person other than the parties to this Agreement, and their respective successors and assigns. This Agreement shall be binding upon the Company and each of the Investors, and their respective successors and assigns. 8.7 Governing Law. This Agreement shall be governed by the laws of the State of Delaware (regardless of the laws that might otherwise govern under applicable Delaware principles of conflicts of law) as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. 8.8 Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. 8.9 Exhibits and Headings. The Exhibits to this Agreement shall be deemed to be a part of this Agreement. The Article and Section headings used or contained in this Agreement are for convenience of reference only and shall not affect the construction of this Agreement. 8.10 Injunctive Relief. Each of the parties to this Agreement hereby acknowledges that in the event of a breach by any of them of any material provision of this Agreement, the aggrieved party may be without an adequate remedy at law. Each of the parties therefore agrees that, in the event of a breach of any material provision of this Agreement, the aggrieved party may elect to institute and prosecute proceedings to enforce specific performance or to enjoin the continuing breach of such provision, as well as to obtain damages for breach of this Agreement. By seeking or obtaining any such relief, the aggrieved party will not be precluded from seeking or obtaining any other relief to which it may be entitled. 8.11 Attorneys' Fees. In any action or proceeding brought to enforce any provision of this Agreement or the Investors' Agreement, or where any provision hereof or thereof is validly asserted as a defense, the successful party shall be entitled to recover reasonable attorneys' fees in addition to any other available remedy. 8.12 Survival of Agreements, Representations and Warranties. All agreements, representations and warranties contained herein or made in writing by or on behalf of the Company or each Investor, as the case may be, in connection with the transactions contemplated by this Agreement shall survive the execution and delivery of this Agreement and the sale and purchase of the Shares of payment therefor. * * * * * * INVESTORS SUBSCRIPTION AGREEMENT COUNTERPART SIGNATURE PAGE IN WITNESS WHEREOF, the parties have executed this Agreement as an instrument as of the date first above written. FSI MERGER CORP. By: /s/ Anthony J. DiNovi ---------------------------- Name: Anthony J. DiNovi Title: INVESTORS SUBSCRIPTION AGREEMENT COUNTERPART SIGNATURE PAGE IN WITNESS WHEREOF, the parties have executed this Agreement as an instrument as of the date first above written. THL Equity Shareholders: THOMAS H. LEE EQUITY FUND III, L.P. By: THL Equity Advisors III Limited Partnership, as General Partner By: THL Equity Trust III, as General Partner By: /s/ Anthony J. DiNovi --------------------------------- Name: Anthony J. DiNovi Title: THOMAS H. LEE FOREIGN FUND III, L.P. By: THL Equity Advisors III Limited Partnership, as General Partner By: THL Equity Trust III, as General Partner By: /s/ Anthony J. DiNovi --------------------------------- Name: Anthony J. DiNovi Title: THL FSI EQUITY INVESTORS, L.P. By: THL Equity Advisors III Limited Partner ship, as General Partner By: THL Equity Trust III, as General Partner By: /s/ Anthony J. DiNovi --------------------------------- Name: Anthony J. DiNovi Title: THL-CCI LIMITED PARTNERSHIP By: THL Investment Management Corp. as General Partner By: /s/ Anthony J. DiNovi --------------------------------- Name: Anthony J. DiNovi DLJ Entities' Shareholders: DLJ MERCHANT BANKING PARTNERS II, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJ MERCHANT BANKING PARTNERS II-A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJ OFFSHORE PARTNERS II, C.V. By: DLJ Merchant Banking II, Inc., as advisory general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJ DIVERSIFIED PARTNERS, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJ DIVERSIFIED PARTNERS - A, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJ MILLENNIUM PARTNERS, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJ MILLENNIUM PARTNERS - A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJMB FUNDING II, INC. By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: UK INVESTMENT PLAN 1997 PARTNERS By: Donaldson, Lufkin & Jenrette Inc., as general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJ EAB PARTNERS, L.P. By: DLJ LBO Plans Management Corporation, as managing general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: DLJ FIRST ESC, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Thompson Dean --------------------------------- Name: Thompson Dean Title: The address for each of the DLJ Entities listed above is: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, New York 10172 Fax: (212) 892-7272 CHASE EQUITY ASSOCIATES, L.P. By: Chase Capital Partners By: /s/ Michael Blott --------------------------------- Name: Michael Blott Title: Executive Partner Address: 380 Madison Avenue New York, NY 10017 Merrill Lynch Entities: ML IBK POSITIONS, INC. By: /s/ James V. Caruso --------------------------------- Name: James V. Caruso Title: Vice President KECALP INC. By: /s/ Robert Tully --------------------------------- Name: Robert Tully Title: Vice President and Treasurer MERRILL LYNCH KECALP L.P. 1997 By: KECALP Inc., as general partner By: /s/ Robert Tully --------------------------------- Name: Robert Tully Title: Vice President and Treasurer The address for each of the Merrill Lynch Entities listed above is: 255 Liberty Street New York, NY 10080 Fax: (212) 236-7584 Individual Shareholders: By: /s/ David V. Harkins --------------------------------- Name: David V. Harkins By: /s/ Sheryll J. Harkins --------------------------------- Name: The 1995 Harkins Gift Trust By: /s/ Thomas R. Shepherd --------------------------------- Name: Thomas R. Shepherd Money Purchase Pension Plan By: /s/ Scott A. Schoen --------------------------------- Name: Scott A. Schoen By: /s/ C. Hunter Boll --------------------------------- Name: C. Hunter Boll By: /s/ Scott M. Sperling --------------------------------- Name: Scott M. Sperling By: /s/ Sperling Family Limited Partnership --------------------------------- Name: Sperling Family Limited Partnership By: /s/ Anthony J. DiNovi --------------------------------- Name: Anthony J. DiNovi By: /s/ Thomas M. Hagerty --------------------------------- Name: Thomas M. Hagerty By: /s/ Warren C. Smith, Jr. --------------------------------- Name: Warren C. Smith,Jr. By: /s/ Seth W. Lawry --------------------------------- Name: Seth W. Lawry By: /s/ Joseph J. Incandela --------------------------------- Name: Joseph J. Incandela By: /s/ Kent R. Weldon --------------------------------- Name: Kent R. Weldon By: /s/ Terrence M. Mullen --------------------------------- Name: Terrence M. Mullen By: /s/ Todd M. Abbrecht --------------------------------- Name: Todd M. Abbrecht By: /s/ Wendy L. Masler --------------------------------- Name: Wendy L. Masler By: /s/ THL-CCI Limited Partnership --------------------------------- Name: THL-CCI Limited Partnership By: Wendy L. Master Title: Vice President By: /s/ Andrew D. Flaster --------------------------------- Name: Andrew D. Flaster By: /s/ Kristina A. Watts --------------------------------- Name: First Trust Co. FBO Kristina A. Watts By: /s/ Charles Robins --------------------------------- Name: Charles Robins By: /s/ James Westra --------------------------------- Name: James Westra By: /s/ Charles A. Brizius --------------------------------- Name: Charles A. Brizius Schedule I Certain Named Individual Investors - ---------------------------------- David V. Harkins The 1995 Harkins Gift Trust Thomas R. Shepherd Money Purchase Pension Plan (Keogh) Scott A. Schoen C. Hunter Boll Scott M. Sperling Sperling Family Limited Partnership Anthony J. DiNovi Thomas M. Hagerty Warren C. Smith, Jr. Seth W. Lawry Joseph J. Incandela Kent R. Weldon Terrence M. Mullen Todd M. Abbrecht Wendy L. Masler Andrew D. Flaster First Trust Co. FBO Kristina A. Watts Charles W. Robins James Westra Charles A. Brizius EXHIBIT A -- INVESTORS STOCK SUBSCRIPTION AGREEMENT Number of Shares Purchased By Each Equity Investor --------------------------------------------------
Stockholder Number of Shares Number of Shares ----------- of Voting of Non-Voting Common Stock Common Stock ---------------- ---------------- Thomas H. Lee Equity Fund III, L.P. 2,409,525 0 c/o Thomas H. Lee Co. 75 State Street Boston, MA 02109 Thomas H. Lee Foreign Fund III, L.P. 149,094 0 c/o Thomas H. Lee Co. 75 State Street Boston, MA 02109 THL FSI Equity Investors, L.P. 1,210,587 0 c/o Thomas H. Lee Co. 75 State Street Boston, MA 02109 THL-CCI Limited Partnership 148,392 0 c/o Thomas H. Lee Co. 75 State Street Boston, MA 02109 DLJ Merchant Banking Partners II, L.P. 762,579 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Merchant Banking Partners II-A, L.P. 30,369 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Offshore Partners II, C.V. 37,500 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Diversified Partners, L.P. 44,584 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Diversified Partners - A, L.P. 16,557 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Millennium Partners, L.P. 12,330 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Millennium Partners - A, L.P. 2,405 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJMB Funding II, Inc. 135,393 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 UK Investment Plan 1997 Partners 20,176 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ EAB Partners, L.P. 3,424 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ ESC II, L.P. 143,803 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ First ESC, L.P. 1,467 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Chase Equity Associates, L.P. 0 807,058 270 Park Avenue New York, NY 10172 Merrill Lynch KECALP L.P. 1997 194,674 0 c/o KECALP Inc. 225 Liberty Street New York, NY 10080 KECALP Inc. 37,081 0 225 Liberty Street New York, NY 10080 ML IBK Positions, Inc. 10,363 0 Joseph S. Valenti c/o ML IBK Positions, Inc. 225 Liberty Street New York, NY 10080-6114 ========= ======= TOTAL 5,370,303 807,058
EXHIBIT B -- INVESTORS STOCK SUBSCRIPTION AGREEMENT Stockholder Number ----------- of Shares of Voting Common Stock ------------ David V. Harkins 17,996 The 1995 Harkins Gift Trust 2,000 Thomas R. Shepherd Money Purchase Pension Plan (Keogh) 6,249 Scott A. Schoen 11,997 C. Hunter Boll 11,997 Scott M. Sperling 5,999 Sperling Family Limited Partnership 3,999 Anthony J. DiNovi 9,998 Thomas M. Hagerty 9,998 Warren C. Smith, Jr. 9,998 Seth W. Lawry 2,999 Joseph J. Incandela 2,499 Kent R. Weldon 1,500 Terrence M. Mullen 750 Todd M. Abbrecht 750 Wendy L. Masler 415 Andrew D. Flaster 415 First Trust Co. FBO Kristina A. Watts 415 Charles W. Robins 415 James Westra 415 Charles A. Brizius 750 ======= TOTAL 101,554 ------- EXHIBIT C [INVESTORS' AGREEMENT] EX-4 5 FISHER SCIENTIFIC INTERNATIONAL INC. COMMON STOCK WARRANT ACQUISITION AGREEMENT Dated as of January 21, 1998 TABLE OF CONTENTS Page ---- PARTIES............................................................... 4 1. DEFINITIONS 2. ORIGINAL ISSUE OF WARRANTS 2.1. Form of Warrant Certificates................................... 2 2.2. Execution and Delivery of Warrant Certificates................. 2 3. EXERCISE PRICE; EXERCISE OF WARRANTS; COMPLIANCE WITH THE SECURITIES ACT 3.1. Exercise Price................................................. 2 3.2. Exercise of Warrants........................................... 3 3.3. Expiration of Warrants......................................... 3 3.4. Method of Exercise............................................. 3 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTORS 4.1 Organization, Authority........................................ 4 4.2 Enforceability................................................. 4 4.3 Non-Contravention.............................................. 4 4.4 Consents, Approvals and Notices................................ 5 4.5 Litigation..................................................... 5 4.6 Investment Representations..................................... 5 4.7 Brokers........................................................ 8 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 5.1 Organization and Standing...................................... 8 5.2 Capitalization................................................. 8 5.3 Authorization.................................................. 8 5.4 Securities Act................................................. 9 5.5 Non-Contravention.............................................. 9 5.6 Consents, Approvals and Notices................................ 9 5.7 Litigation..................................................... 9 6. RIGHTS OF HOLDERS 7. ADJUSTMENTS 7.1. Stock Dividend and Distributions; Stock Splits; Reverse Stock Splits; Reclassifications................................ 9 7.2. Other Dilutive Events.......................................... 10 7.3. Notice of Adjustment........................................... 10 7.4. Statement on Warrants.......................................... 10 7.5. Fractional Interest............................................ 10 8. WARRANT TRANSFER BOOKS 9. WARRANT HOLDERS 9.1. No Voting Rights............................................... 11 9.2. Right of Action................................................ 11 10. COVENANTS 10.1. Reservation of Shares.......................................... 12 10.2. Determinations by Board of Directors........................... 12 11. MISCELLANEOUS 11.1. Payment of Taxes............................................... 12 11.2. Surrender of Certificates...................................... 12 11.3. Mutilated, Destroyed, Lost and Stolen Warrant Certificates..... 12 11.4 Notices........................................................ 13 11.5. Applicable Law................................................. 13 11.6. Persons Benefitting............................................ 13 11.7. Counterparts................................................... 13 11.8. Amendments..................................................... 14 11.9. Headings....................................................... 14 SIGNATURES......................................................16 EXHIBIT A Institutional Investors' Schedule of Warrants to be Acquired EXHIBIT B Individual Investors' Schedule of Warrants to be Acquired EXHIBIT C Form of Voting Warrant Certificate EXHIBIT D Form of Non-Voting Warrant Certificate COMMON STOCK WARRANT ACQUISITION AGREEMENT AGREEMENT dated as of January 21, 1998 between Fisher Scientific International Inc., a Delaware corporation (the "Company"), and (i) each of the investors listed on Exhibit A attached hereto (individually, an "Institutional Investor" and collectively, "Institutional Investors") and (ii) those persons listed on Exhibit B (each, an "Individual Investor" and with (i) above, "Investors"). In connection with the commitment by the Investors to purchase cumulative preferred stock of the Company (the "Preferred Stock"), prior to the execution of the Second Amended and Restated Agreement and Plan of Merger, dated November 14, 1997, as amended, between FSI Merger Corp. ("FSI") and the Company (the "Merger Agreement") pursuant to which FSI will be merged with and into the Company (the "Merger"), the Company has agreed to issue to the Investors warrant certificates evidencing 516,663 warrants (the "Warrants") to purchase the number of shares of the voting common stock, par value $0.01 per share ("Voting Common Stock") and non-voting common stock, par value $.01 per share ("Non-Voting Common Stock" and, together with the Voting Common Stock, "Common Stock"), of the Company set forth opposite each Investor's name on Exhibits A and B (the "Shares"). The certificates evidencing Warrants to purchase Voting Common Stock ("Voting Common Stock Certificates") and certificates evidencing Warrants to purchase Non-Voting Common Stock ("Non-Voting Common Stock Certificates" and, collectively with Voting Common Stock Certificates, "Warrant Certificates") are attached hereto as Exhibits C and D. In consideration of the foregoing, or the purpose of defining the terms and provisions of the Warrants and the respective rights and obligations thereunder of the Company and the record holders of the Warrants, the Company and each Investor hereby agrees as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings: Company: the meaning set forth in the preamble to this Agreement and its successors and assigns. Exercise Price: the meaning set forth in Section 3.1. Expiration Date: the tenth anniversary of this Agreement. Holders: from time to time, the holders of the Warrants and, unless otherwise provided or indicated herein, the holders of the Underlying Shares. Investors: the meaning set forth in the preamble to this Agreement. Investors' Agreement: the Investors' Agreement, dated as of even date herewith, by and among the Company, the Investors and certain other parties named therein. Person: any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. Securities Act: the Securities Act of 1933, as amended. Shares: the meaning set forth in Article I of the Investors' Agreement. Underlying Shares: the shares of Common Stock issuable or issued upon the exercise of the Warrants. Warrant Certificates: the meaning set forth in the preamble to this Agreement. Warrants: the meaning set forth in the preamble to this Agreement. 2. ORIGINAL ISSUE OF WARRANTS. 2.1. Form of Warrant Certificates. The Warrant Certificates shall be in registered form only, and shall be dated the date on which executed by the Company and may have such legends and endorsements typed, stamped, printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation pursuant thereto or with any rule or regulation of any securities exchange on which the Warrants may be listed, or to conform to usage. 2.2. Execution and Delivery of Warrant Certificates. Warrant Certificates evidencing Warrants to purchase a number of duly authorized, validly issued, fully paid and nonassessable Shares shall be executed, on the date of this Agreement, by the Company and delivered to and issued in the name of each Investor. The Warrant Certificates shall be executed on behalf of the Company by its President or by any of its Vice Presidents, either manually or by facsimile signature printed thereon. In case any officer of the Company whose signature shall have been placed upon any of the Warrant Certificates shall cease to be such officer of the Company before issue and delivery thereof, such Warrant Certificates may, nevertheless, be issued and delivered with the same force and effect as though such person had not ceased to be such officer of the Company. 3. EXERCISE PRICE; EXERCISE OF WARRANTS; COMPLIANCE WITH THE SECURITIES ACT. 3.1. Exercise Price. Each Warrant Certificate shall entitle the Holder thereof, subject to the provisions of this Agreement, to receive one share of either Voting Common Stock or Non-Voting Common Stock for each Warrant represented thereby at an exercise price (the "Exercise Price") of $48.25 per share, subject to adjustment as herein provided. 3.2. Exercise of Warrants. The Warrants shall be exercisable in whole or in part on or prior to the Expiration Date. 3.3. Expiration of Warrants. The Warrants shall terminate and become void at the close of business on the Expiration Date. 3.4. Method of Exercise. (a) In order to exercise a Warrant the Holder thereof must surrender the Warrant Certificate evidencing such Warrant to the Company at its principal office, together with the Exercise Subscription Form on the reverse of or attached to the Warrant Certificate duly executed, accompanied by payment, in cash or by certified or by official bank check payable to the order of the Company, in the amount equal to the Exercise Price multiplied by the number of Warrants being exercised. As an alternative to the payment of the aggregate Exercise Price in the manner set forth in Section 3.4, the Holder may (i) deliver as payment, in whole or part, of the aggregate Exercise Price, Common Stock to the Company, in which case an amount equal to the aggregate "fair market value" on the date of exercise of the Common Stock delivered shall be applied towards the payment of the aggregate Exercise Price and/or (ii) with the approval of the Board of Directors of the Company, instruct the Company, by written notice accompanying the surrender of the Warrant and the Exercise Subscription Form, to apply to the payment of all or a portion of the aggregate Exercise Price such number of shares of Common Stock otherwise issuable to such Holder upon such exercise as shall be specified in such notice, in which case an amount equal to the aggregate "fair market value" of the specified number of shares on the date of exercise shall be deemed to have been paid to the Company and the number of shares issuable upon such exercise shall be reduced by such specified number. If the aggregate Exercise Price exceeds the aggregate fair market value of the Common Stock delivered or applied pursuant to (i) and/or (ii) above, the Holder shall pay to the Company, in the manner set forth in Section 3.4, an amount equal to such excess. Notwithstanding anything to the contrary in this Section 3.4, if the aggregate fair market value of the Common Stock delivered or applied pursuant to (i) and/or (ii) above exceeds the aggregate Exercise Price, in no event shall the Holder be entitled to receive any amounts from the Company. The "fair market value" means, with respect to Common Stock, the fair market value of such Common Stock determined by such methods or procedures as shall be established from time to time by the Company. Unless otherwise determined by the Board in good faith, the per share fair market value of Common Stock as of a particular date shall mean, if public shareholders hold, as of the last day of the prior fiscal quarter, shares of Common Stock worth $100,000,000 or more (as determined by the Company), (i) the closing sales price per share of Common Stock on the national securities exchange on which the Common Stock is principally traded, for the last preceding date on which there was a sale of such Common Stock on such exchange, or (ii) if the shares of Common Stock are then traded in an over-the-counter market, the average of the closing bid and asked prices for the shares of Stock in such over-the-counter market for the last preceding date on which there was a sale of such Stock in such market, or if public shareholders do not hold, as of the last day of the prior fiscal quarter, shares of Common Stock worth more than $100,000,000 or if the shares of Common Stock are not then listed on a national securities exchange or traded in an over-the-counter market, such value as the Company, in its sole discretion, shall determine in good faith. (b) If fewer than all the Warrants represented by a Warrant Certificate are surrendered for exercise, such Warrant Certificate shall be surrendered and a new Warrant Certificate of the same tenor and for the number of Warrants that were not surrendered shall be executed by the Company. The new Warrant Certificate shall be registered in such name or names as may be directed in writing by the Holder and delivered to the Person or Persons entitled to receive the same. (c) Upon exercise of a Warrant in conformity with the foregoing provisions, the Company shall issue or cause to be issued in the name of and delivered to the Holder of such Warrant or, subject to Section 11.1, as such Holder (upon payment by such Holder of any applicable transfer taxes) may direct, a certificate or certificates for the number of duly authorized, validly issued, fully paid and nonassessable Shares to which such Holder shall be entitled upon such exercise together with an amount in cash in lieu of any fraction of a share as provided in Section 7.5. 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTORS. Each Investor represents and warrants, in each instance as to itself only and not as to any other Investor, to the Company that: 4.1 Organization, Authority. Each Institutional Investor is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. Each Individual Investor has the legal capacity to enter into this Agreement. Each Investor has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by each Investor of this Agreement and the consummation by such Investor of the transactions contemplated hereby have been duly authorized by all necessary action on the part of such Investor. 4.2 Enforceability. This Agreement, when executed and delivered by all parties hereto, will constitute the valid and legally binding obligation of each Investor, enforceable against each Investor in accordance with its terms, except to the extent enforceability may be limited by bankruptcy laws, insolvency laws, reorganization laws, moratorium laws or other laws affecting creditors' rights generally and except to the extent enforceability may be limited by general equitable principles. Each Investor entered into and is bound by this Agreement in satisfaction of a commitment made by such Investor to purchase Preferred Stock. 4.3 Non-Contravention. The execution and delivery of this Agreement by each Investor does not, and the consummation by such Investor of the transactions contemplated hereby and the performance by such Investor of the obligations which it is obligated to perform hereunder will not, (a) violate any provision of the articles of association, by-laws, agreement of limited partnership or other organizational documents of such Investor, (b) violate in any material respect any material law, regulation, rule, order, judgment or decree to which such Investor is subject, (c) violate in any material respect, result in the termination or the acceleration of, or conflict with in any material respect or constitute a material default under, any material mortgage, indenture, lease, franchise, license, permit, agreement or instrument (each, a "Contract") to which such Investor is a party or by which any of its assets or properties are bound or (d) result in the creation of any lien or other encumbrance on any of the material assets or properties of such Investor or the loss of any material license or other material contractual right with respect thereto. 4.4 Consents, Approvals and Notices. The execution and delivery of this Agreement by each Investor and the consummation by each Investor of the transactions contemplated hereby does not require any (a) material consent, authorization, order or approval of, filing or registration with, or notice to, any governmental or regulatory authority, which has not otherwise been obtained or (b) material consent, authorization, approval, waiver, order, license, certificate or permit or act of or from, or notice to, any party to any Contract to which such Investor is a party or by which any of its assets or properties are bound, which has not been otherwise obtained. 4.5 Litigation. There is no action, suit or proceeding pending or, to the knowledge of any Investor, threatened, before any court against such Investor which challenges the validity or the propriety of the transactions contemplated by this Agreement. 4.6 Investment Representations. (a) This Agreement is made in reliance upon each Investor's representations to the Company, which by acceptance hereof each Investor hereby confirms, that: (i) the Warrants and the Underlying Shares will be acquired by such Investor for investment only, for its own account and not as a nominee or agent and not with a view to the sale or distribution of any part thereof in violation of applicable federal and state securities laws; and (ii) such Investor has no current intention of selling, granting participation in or otherwise distributing the Warrants or Underlying Securities in violation of applicable federal and state securities laws. By executing this Agreement, each Investor further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person, or to any third person, with respect to any of the Warrants or Underlying Shares in violation of applicable federal and state securities laws. (b) Each Investor understands that the Warrants and Underlying Shares have not been registered under the Securities Act on the basis that the sale provided for in this Agreement and the issuance of securities hereunder are exempt from registration under the Securities Act pursuant to Section 4(2) thereof and regulations issued thereunder, and that the Company's reliance on such exemption is predicated on the representations and warranties of each Investor set forth herein. (c) Each Investor represents that it has, either alone or together with the assistance of a "purchaser representative" (as that term is defined in Regulation D promulgated under the Securities Act), such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Company. Each Investor further represents that it is familiar with the business and financial condition, properties, operations and prospects of the Company and that it has had access, during the course of the transactions contemplated hereby and prior to its acquisition of Warrants or purchase of Underlying Shares, to the same kind of information that is specified in Part I of a registration statement under the Securities Act, and that it has had the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of the investment and to obtain additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of any information furnished to such Investor or to which such Investor has had access. Each Investor has made, either alone or together with its advisors, such independent investigation of the Company as each Investor deems to be, or its advisors deem to be, necessary or advisable in connection with this investment. Each Investor understands that no federal or state agency has passed upon this investment or upon the Company, nor has any such agency made any finding or determination as to the fairness of this investment. (d) Each Investor represents that it will not sell, transfer or otherwise dispose of the Warrants or the Underlying Shares without registration under the Securities Act and applicable state securities laws, or an exemption therefrom. Each Investor understands that, in the absence of an effective registration statement covering the Warrants or the Underlying Shares or an available exemption from registration under the Securities Act and applicable state securities laws, the Warrants or Underlying Shares must be held indefinitely. In particular, each Investor acknowledges that it is aware that the Warrants and Underlying Shares may not be sold pursuant to Rule 144 promulgated under the Securities Act unless all of the conditions of such rule are met. Among the current conditions for use of Rule 144 by certain holders is the availability to the public of current information about the Company. Each Investor represents that, in the absence of an effective registration statement covering the Warrants or Underlying Shares or an exemption from the Securities Act, it will sell, transfer or otherwise dispose of the Warrants and Underlying Shares only in a manner consistent with its representations set forth herein and then only in accordance with the Investors' Agreement referred to in Section 1. (e) Each Investor represents that it (i) is capable of bearing the economic risk of holding the unregistered Warrants or Underlying Shares for an indefinite period of time and has adequate means for providing for its current needs and contingencies, (ii) can afford to suffer a complete loss of this investment and (iii) understands all risk factors related to the Warrants or Underlying Shares. (f) Each Investor understands that the Warrants and the Underlying Shares involves a high degree of risk, that there is no established market for the Warrants or Underlying Shares and that it is not likely that any public market for the Warrants will develop in the near future. (g) Each Investor represents that neither it nor anyone acting on its behalf has paid any commission or other remuneration to any person in connection with the Warrants and Underlying Shares. (h) Independent of the additional restrictions on the transfer of the shares of Common Stock contained in the Investors' Agreement referred to in Section 1, each Investor agrees that it will not transfer, dispose of or pledge any of the Warrants or Underlying Shares other than pursuant to an effective registration statement under the Securities Act and applicable state securities laws, unless and until (i) such Investor shall have notified the Company of the proposed transfer, disposition or pledge and shall have furnished the Company with a statement of the circumstances surrounding the proposed transfer, disposition or pledge and (ii) if reasonably requested by the Company and at the expense of each Investor or its transferee, such Investor shall have furnished to the Company an opinion of counsel reasonably satisfactory (as to counsel, which in the case of the Institutional Investors, may include internal counsel, and as to substance) to the Company and its counsel that such proposed transfer, disposition or pledge may be made without registration of such Warrants or Underlying Shares under the Securities Act and applicable state securities laws. (i) Legends; Stop Transfer. i. Each Investor acknowledges that all stock certificates issues pursuant to the exercise of the Warrants shall bear the following legend: "TRANSFER RESTRICTED ------------------- The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or any state Securities Laws and may not be offered or sold except in compliance therewith. The securities represented by this certificate are subject to the terms and conditions, including certain restrictions on transfer, of an Investors' Agree anuary 21, 1998, as amended from time to time, and none of such securities or any interest therein, shall be transferred, pledged, rwise disposed of except as provided in that Agreement. A ors' Agreement is on file with the Secretary of the Company to any properly interested person without charge within five (5) days after receipt of a written request." ii. Each Investor acknowledges that all certificates representing Warrants shall bear the following legend: "TRANSFER RESTRICTED ------------------- These warrants and the securities issuable upon the exercise hereof have not been registered under the Securities Act of 1933, as amended, or any state Securities Laws and may not be offered or sold except in compliance therewith. These warrants and the securities issuable upon the exercise hereof are subject to the terms and conditions, including certain restrictions on transfer, of an Investors' Agreement dated as of January 21, 1998, as amended from time to time, and none of such securities, or any interest therein, shall be transferred, pledged, encumbered or otherwise disposed of except as provided in that Agreement. A copy of the Investors' Agreement is on file with the Secretary of the Company and will be mailed to any properly interested person without charge within five (5) days after receipt of a written request." iii. In addition, the Company shall make a notation regarding the restrictions on transfer of the Warrants and Underlying Shares in its stock books, and the Warrants and Underlying Shares shall be transferred on the books of the Company only if transferred or sold pursuant to an effective registration statement under the Securities Act and applicable state securities laws covering such Warrants or Underlying Shares or pursuant to and in compliance with the provisions of Section 4.6(h) hereof. A copy of this Agreement, together with any amendments thereto, shall remain on file with the Secretary of the Company and shall be available for inspection to any properly interested person without charge within five days after the Company's receipt of a written request therefor. 4.7 Brokers. No broker, investment banker, financial advisor or other person or entity is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any Investor or any of its affiliates. 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to each Investor that: 5.1 Organization and Standing. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted and as proposed to be conducted. 5.2 Capitalization. The authorized capital of the Company, as of the Merger, will consist of 50,000,000 shares of Common Stock, par value $.01 per share, 15,000,000 shares of Preferred Stock, par value $.01 per share of which 500,000 shares are designated Series A Junior Participating Preferred Stock, par value $.01 per share. As of the close of business on January 20, 1998, 20,356,764 shares of the Company's Common Stock were issued and outstanding, and no such shares were held in treasury. The Company has no shares of Preferred Stock issued and outstanding. As of January 20, 1998, except for (i) 3,555,774 shares reserved for issuance pursuant to outstanding Options and rights granted under the Stock Plans, and (ii) 500,000 shares of Junior Preferred Stock reserved for issuance upon exercise of certain rights, there are not now, and following the Merger, there will not be, any existing options, warrants, calls, subscriptions, or other rights, or other agreements or commitments, obligating the Company to issue, transfer or sell any shares of capital stock of the Company or any of its subsidiaries. 5.3 Authorization. All corporate action on the part of the Company necessary for the authorization, execution, delivery and performance of this Agreement by the Company and for the authorization, issuance and delivery of the Shares being sold under this Agreement, has been taken. This Agreement, when executed and delivered by all parties hereto, shall constitute the valid and legally binding obligation of the Company and shall be enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by bankruptcy laws, insolvency laws, reorganization laws, moratorium laws or other laws affecting creditors' rights generally and except to the extent enforceability may be limited by general equitable principles. 5.4 Securities Act. The sale of Warrants in accordance with the terms of this Agreement (assuming the accuracy of the representations and warranties of the Investors contained in Section 4) is exempt from the registration requirements of the Securities Act. 5.5 Non-Contravention. The execution and delivery of this Agreement by each Company does not, and the consummation by the Company of the transactions contemplated hereby and the performance by the Company of the obligations which it is obligated to perform hereunder will not, (a) violate any provision of the articles of association, by-laws, agreement of limited partnership or other organizational documents of the Company, (b) violate in any material respect any material law, regulation, rule, order, judgment or decree to which the Company is subject, (c) violate in any material respect, result in the termination or the acceleration of, or conflict with in any material respect or constitute a material default under, any material Contract to which the Company is a party or by which any of its assets or properties are bound or (d) result in the creation of any lien or other encumbrance on any of the material assets or properties of the Company or the loss of any material license or other material contractual right with respect thereto. 5.6 Consents, Approvals and Notices. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require any (a) material consent, authorization, order or approval of, filing or registration with, or notice to, any governmental or regulatory authority, which has not otherwise been obtained or (b) material consent, authorization, approval, waiver, order, license, certificate or permit or act of or from, or notice to, any party to any Contract to which the Company is a party or by which any of its assets or properties are bound, which has not been otherwise obtained. 5.7 Litigation. There is no action, suit or proceeding pending or, to the knowledge of the Company, threatened, before any court against the Company which challenges the validity or the propriety of the transactions contemplated by this Agreement. 6. RIGHTS OF HOLDERS. Each Holder hereby agrees that if such Holder is not a party to the Investors' Agreement, then such Holder will take all necessary and appropriate steps to become a party to the Investors' Agreement. For this purpose, the Warrants and such Underlying Shares shall be subject to the restrictions, and entitled to the benefits, to the extent provided in the Investors' Agreement with respect to Shares held by a "Shareholder" (as defined in the Investors' Agreement). 7. ADJUSTMENTS. 7.1. Stock Dividend and Distributions; Stock Splits; Reverse Stock Splits; Reclassifications. In this case the Company shall (i) pay a dividend or make any other distribution with respect to its Shares in shares of its capital stock, (ii) subdivide its outstanding Shares, (iii) combine its outstanding Shares into a smaller number of shares, (iv) issue any shares of its capital stock in a reclassification of the Shares (including any such reclassification in connection with a merger, consolidation or other business combination in which the Company is the surviving corporation) or (v) in the event the Company shall merge, combine or engage in a share exchange or similar corporate transaction with any other entity in which the Company is not the surviving corporation, the number of Shares issuable upon exercise of each Warrant immediately prior to the record date for such dividend or distribution or the effective date of such subdivision, combination, reclassification or other transaction shall be adjusted so that the Holder of each Warrant shall thereafter be entitled to receive the kind and number of Shares or other securities of the Company that such Holder would have owned or have been entitled to receive after the happening of any of the events described above, had such Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this Section 7.1 shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event. 7.2 Other Dilutive Events. In case any event shall occur as to which the provisions of Section 7.1 are not strictly applicable but the failure to make any adjustment would not fairly protect the purchase rights represented by this Agreement in accordance with the essential intent and principles of such section, then, in each such case, the Company shall appoint a firm of independent certified public accountants of recognized national standing (which may be the regular auditors of the Company), which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in Section 7.1 hereto, necessary to preserve, without dilution, the purchase rights represented by each Warrant. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holder of each Warrant and shall make the adjustments described therein. 7.3. Notice of Adjustment. Whenever the number of Shares issuable upon the exercise of a Warrant is adjusted, as herein provided, the Company shall mail by first class mail, postage prepaid, to each Holder, notice of such adjustment or adjustments setting forth the number of Shares or other stock or property issuable upon the exercise of each Warrant after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made. 7.4. Statement on Warrants. Irrespective of any adjustment in the number or kind of shares issuable upon the exercise of the Warrants, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the Warrants initially issuable pursuant to this Agreement. 7.5. Fractional Interest. The Company shall not be required to issue fractional Shares on the exercise of Warrants. If more than one Warrant shall be presented for exercise in full at the same time by the same Holder, the number of full Shares which shall be issuable upon such exercise thereof shall be computed on the basis of the aggregate number of Shares acquirable on exercise of the Warrants so presented. If any fraction of a Shares would, except for the provisions of this Section, be issuable on the exercise of any Warrant (or specified portion thereof), the Company shall pay an amount in cash calculated by it to be equal to the then current market value, as determined in good faith by the Company, per Share multiplied by such fraction computed to the nearest whole cent. 8. WARRANT TRANSFER BOOKS. The Warrant Certificates shall be issued in registered form only. The Company shall keep a register at its office in which, subject to such reasonable regulations as it may prescribe, it shall provide for the registration of Warrant Certificates and of transfers or exchanges of Warrant Certificates as herein provided. At the option of the Holder, Warrant Certificates may be exchanged at such office, and upon payment of the charges hereinafter provided. Whenever any Warrant Certificates are so surrendered for exchange, the Company shall execute the Warrant Certificates that the Holder making the exchange is entitled to receive. All Warrant Certificates issued upon any registration of transfer or exchange of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations, and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such registration of transfer or exchange. Every Warrant Certificate surrendered for registration of transfer or exchange shall (if so required by the Company) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Warrant Certificates. The Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrant Certificates. Any Warrant Certificate when duly endorsed in blank shall be deemed negotiable and when a Warrant Certificate shall have been so endorsed, the Holder thereof may be treated by the Company and all other persons dealing therewith as the absolute owner thereof for any purpose and as the Person entitled to exercise the rights represented thereby, or to the transfer thereof on the register of the Company, any notice to the contrary notwithstanding; but until such transfer on such register, the Company may treat the registered Holder thereof as the owner for all purposes. 9. WARRANT HOLDERS. 9.1. No Voting Rights. Prior to the exercise of the Warrants, no Holder of a Warrant Certificate, as such, shall be entitled to any rights of a stockholder of the Company, including, without limitation, the right to vote, to consent, to exercise any preemptive right, to receive any notice of meetings of shareholders for the election of directors of the Company or any other matter or to receive any notice of any proceedings of the Company, except as may be specifically provided for herein. 9.2. Right of Action. All rights of action in respect of this Agreement are vested in the Holders of the Warrants, and any Holder of any Warrant, without the consent of the Holder of any other Warrant, may, in such Holder's own behalf and for such Holder's own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such Holder's right to exercise, exchange or tender for purchase such Holder's Warrants in the manner provided in this Agreement. 10. COVENANTS. 10.1. Reservation of Shares. The Company covenants that it will at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Shares, solely for the purpose of issue upon exercise of Warrants as herein provided, such number of shares of shares of Voting Common Stock or Non-Voting Common Stock as shall then be issuable upon the exercise of all outstanding Warrants. The Company covenants that all shares of Shares which shall be so issuable shall, upon such issue, be duly and validly issued and fully paid and nonassessable. 10.2. Determinations by Board of Directors. All determinations by the Board of Directors of the Company under the provisions of this Agreement shall be made in good faith with due regard to the interests of the Holder of a Warrant, and in accordance with good financial practice. 11. MISCELLANEOUS. 11.1. Payment of Taxes. The Company shall pay all issuance or transfer taxes and similar governmental charges that may be imposed on the Company in connection with the issuance of the Warrants or any securities deliverable upon exercise of Warrants with respect thereto. The Company shall not be required, however, to pay any tax or other governmental charge imposed in connection with any transfer involved in the issue of any certificate for Underlying Shares or payment of cash to any Person other than the Holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and in case of such transfer or payment, the Company shall not be required to issue any stock certificate or pay any cash until such tax or governmental charge has been paid or it has been established to the Company's satisfaction that no such tax or other governmental charge is due. 11.2. Surrender of Certificates. Any Warrant Certificate surrendered for exercise shall be delivered to the Company, promptly cancelled and not reissued by the Company. The Company shall destroy such cancelled Warrant Certificates. 11.3. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. (a) If (i) any mutilated Warrant Certificate is surrendered to the Company or (ii) the Company receives evidence to its satisfaction of the destruction, loss or theft of any Warrant Certificate, and there is delivered to the Company such security or indemnity as may be required by it to save it harmless, then, in the absence of notice to the Company that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, in exchange for any such mutilated Warrant Certificate or in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor and for a like aggregate number of Warrants. (b) Upon the issuance of any new Warrant Certificate under this Section 11.3. the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and other expenses (including the reasonable fees and expenses of counsel to the Company) in connection therewith. (c) Every new Warrant Certificate executed and delivered pursuant to this Section 11.3 in lieu of any destroyed, lost or stolen Warrant Certificate shall constitute an original contractual obligation of the Company, whether or not the destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. (d) The provisions of this Section 11.3 are exclusive and shall preclude (to the extent lawful) all other rights or remedies with respect to the replacement of mutilated, destroyed, lost or stolen Warrant Certificates. 11.4 Notices. All notices and other communications necessary or contemplated under this Agreement shall be in writing and shall be delivered in the manner specified herein. All notices shall be deemed to have been duly given upon confirmation by telecopy if delivered by telecopy or by hand, or one day after sending by overnight delivery service, or five days after sending by certified mail, postage prepaid, return receipt requested to the respective addresses of the parties set forth below: i. for notices and communications to the Company: Fisher Scientific International Inc. Liberty Lane Hampton, N.H. 03842 Fax: (603) 929-2703 Attention: Todd DuChene, Esq. ii. for notices and communications to (i) each Institutional Investor, to its address as set forth under each Institutional Investor's name in Exhibit A, and (ii) each Individual Investor as set forth in Exhibit B hereto, to his attention in care of Thomas H. Lee Company, 75 State Street, Boston, Massachusetts 02109. By notice complying with the foregoing provisions of this Section 11.4, each party shall have the right to change the notice address for future notices and communications to such party. 11.5. Applicable Law. This Agreement and each Warrant issued hereunder and all rights arising hereunder shall be governed by the laws of the State of Delaware. 11.6. Persons Benefitting. This Agreement shall be binding upon and inure to the benefit of the Company and its respective successors, assigns, beneficiaries, executors and administrators, and the Holders from time to time of the Warrants. Nothing in this Agreement is intended or shall be construed to confer upon any Person, other than the Company and the Holders of the Warrants, any right, remedy or claim under or by reason of this Agreement or any part hereof. 11.7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together constitute one and the same instrument. 11.8. Amendments. The Company may, without the consent of the Holders of the Warrants, by supplemental agreement or otherwise, make any changes or corrections in this Agreement that it shall have been advised by counsel (a) are required to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein or (b) add to the covenants and agreements of the Company for the benefit of the Holders, or surrender any rights or power reserved to or conferred upon the Company in this Agreement; provided that, in each case, such changes or corrections shall not adversely affect the interests of the Holders in any material respect. 11.9. Headings. The descriptive headings of the several Sections of this Agreement are inserted for convenience and shall not control or affect the meaning or construction of any of the provisions hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duty executed, as of the day and year first above written. FISHER SCIENTIFIC INTERNATIONAL INC. By: /s/ Todd M. DuChene --------------------------------------- Name: Todd M. DuChene Title: Vice President - General Counsel And Secretary IN WITNESS WHEREOF, the parties have executed this Agreement as an instrument as of the date first above written. THL Equity Shareholders: THOMAS H. LEE EQUITY FUND III, L.P. By: THL Equity Advisors III Limited Partnership, as General Partner By: THL Equity Trust III, as General Partner By: /s/ Anthony J. DiNovi --------------------------------------- Name: Anthony J. DiNovi Title: THOMAS H. LEE FOREIGN FUND III, L.P. By: THL Equity Advisors III Limited Partnership, as General Partner By: THL Equity Trust III, as General Partner By: /s/ Anthony J. DiNovi --------------------------------------- Name: Anthony J. DiNovi Title: THL-CCI LIMITED PARTNERSHIP By: THL Investment Management Corp, as General Partner By: /s/ Anthony J. DiNovi --------------------------------------- Name: Anthony J. DiNovi Title: THL FSI EQUITY INVESTORS, L.P. By: THL Equity Advisors III Limited Partnership, as General Partner By: THL Equity Trust III, as General Partner By: /s/ Anthony J. DiNovi --------------------------------------- Name: Anthony J. DiNovi Title: DLJ Entities' Shareholders: DLJ MERCHANT BANKING PARTNERS II, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJ MERCHANT BANKING PARTNERS II-A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJ OFFSHORE PARTNERS II, C.V. By: DLJ Merchant Banking II, Inc., as advisory general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJ DIVERSIFIED PARTNERS, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJ DIVERSIFIED PARTNERS - A, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJ MILLENNIUM PARTNERS, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJ MILLENNIUM PARTNERS - A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJMB FUNDING II, INC. By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact UK INVESTMENT PLAN 1997 PARTNERS By: Donaldson, Lufkin & Jenrette Inc., as general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJ EAB PARTNERS, L.P. By: DLJ LBO Plans Management Corporation, as managing general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact DLJ FIRST ESC, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Kirk B. Wortman --------------------------------------- Name: Kirk B. Wortman Title: Attorney-in-Fact The address for each of the DLJ Entities listed above is: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, New York 10172 Fax: (212) 892-7272 CHASE EQUITY ASSOCIATES, L.P. By: Chase Capital Partners By: /s/ Michael Blott --------------------------------------- Name: Michael Blott Title: Executive Partner Address: 380 Madison Avenue New York, NY 10017 Merrill Lynch Entities: ML IBK POSITIONS, INC. By: /s/ James V. Caruso --------------------------------------- Name: James V. Caruso Title: Vice President KECALP INC. By: /s/ Robert Tully --------------------------------------- Name: Robert Tully Title: Vice President and Treasurer MERRILL LYNCH KECALP L.P. 1997 By: KECALP Inc., as general partner By: /s/ Robert Tully --------------------------------------- Name: Robert Tully Title: Vice President and Treasurer The address for each of the Merrill Lynch Entities listed above is: 255 Liberty Street New York, NY 10080 Fax: (212) 236-7584 Individual Shareholders: By: /s/ David V. Harkins --------------------------------------- Name: David V. Harkins By: /s/ Sheryll J. Harkins --------------------------------------- Name: The 1995 Harkins Gift Trust By: /s/ Thomas R. Shepherd --------------------------------------- Name: Thomas R. Shepherd Money Purchase Pension Plan By: /s/ Scott A. Schoen --------------------------------------- Name: Scott A. Schoen By: /s/ C. Hunter Boll --------------------------------------- Name: C. Hunter Boll By: /s/ Scott M. Sperling --------------------------------------- Name: Scott M. Sperling By: /s/ Sperling Family Limited Partnership --------------------------------------- Name: Sperling Family Limited Partnership By: /s/ Anthony J. DiNovi --------------------------------------- Name: Anthony J. DiNovi By: /s/ Thomas M. Hagerty --------------------------------------- Name: Thomas M. Hagerty By: /s/ Warren C. Smith, Jr. --------------------------------------- Name: Warren C. Smith,Jr. By: /s/ Seth W. Lawry --------------------------------------- Name: Seth W. Lawry By: /s/ Joseph J. Incandela --------------------------------------- Name: Joseph J. Incandela By: /s/ Kent R. Weldon --------------------------------------- Name: Kent R. Weldon By: /s/ Terrence M. Mullen --------------------------------------- Name: Terrence M. Mullen By: /s/ Todd M. Abbrecht --------------------------------------- Name: Todd M. Abbrecht By: /s/ Wendy L. Masler --------------------------------------- Name: Wendy L. Masler By: /s/ THL-CCI Limited Partnership --------------------------------------- Name: THL-CCI Limited Partnership By: Wendy L. Master Title: Vice President By: /s/ Andrew D. Flaster --------------------------------------- Name: Andrew D. Flaster By: /s/ Kristina A. Watts --------------------------------------- Name: First Trust Co. FBO Kristina A. Watts By: /s/ Charles Robins --------------------------------------- Name: Charles Robins By: /s/ James Westra --------------------------------------- Name: James Westra By: /s/ Charles A. Brizius --------------------------------------- Name: Charles A. Brizius EXHIBIT A -- INVESTORS COMMON STOCK WARRANT ACQUISITION AGREEMENT Number of Warrants Acquired By Each Institutional Investor ----------------------------------------------------------
Warrants to Purchase Warrants to Purchase Shares of Voting Shares of Non-Voting Stockholder Common Stock Common Stock ----------- -------------------- -------------------- Thomas H. Lee Equity Fund III, L.P. 198,268 0 c/o Thomas H. Lee Co. 75 State Street Boston, MA 02109 Thomas H. Lee Foreign Fund III, L.P. 12,268 0 c/o Thomas H. Lee Co. 75 State Street Boston, MA 02109 THL FSI Equity Investors, L.P. 99,614 0 c/o Thomas H. Lee Co. 75 State Street Boston, MA 02109 THL-CCI Limited Partnership 12,209 0 c/o Thomas H. Lee Co. 75 State Street Boston, MA 02109 DLJ Merchant Banking Partners II, L.P. 62,749 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Merchant Banking Partners II-A, L.P. 2,499 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Offshore Partners II, C.V. 3,086 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Diversified Partners, L.P. 3,669 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Diversified Partners - A, L.P. 1,362 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Millennium Partners, L.P. 1,015 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ Millennium Partners - A, L.P. 198 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ MB Funding II, Inc. 11,140 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 UK Investment Plan 1997 Partners 1,660 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ EAB Partners, L.P. 282 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ ESC II, L.P. 11,833 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 DLJ First ESC, L.P. 121 0 c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Chase Equity Associates, L.P. 0 66,409 270 Park Avenue New York, NY 10172 Merrill Lynch KECALP L.P. 1997 16,019 0 KECALP Inc. 225 Liberty Street New York, NY 10080 KECALP Inc. 3,051 0 c/o KECALP Inc. 225 Liberty Street New York, NY 10080 ML IBK Positions, Inc. 853 0 Joseph S. Valenti --- - c/o ML IBK Positions, Inc. 225 Liberty Street New York, NY 10080-6114 ======= ====== TOTAL 441,896 66,409
EXHIBIT B --INVESTORS COMMON STOCK WARRANT ACQUISITION AGREEMENT Stockholder Warrants to Purchase ----------- Shares of Voting Common Stock -------------------- David V. Harkins 1,481 The 1995 Harkins Gift Trust 165 Thomas R. Shepherd Money Purchase Pension Plan (Keogh) 514 Scott A. Schoen 987 C. Hunter Boll 987 Scott M. Sperling 494 Sperling Family Limited Partnership 329 Anthony J. DiNovi 823 Thomas M. Hagerty 823 Warren C. Smith, Jr. 823 Seth W. Lawry 247 Joseph J. Incandela 206 Kent R. Weldon 123 Terrence M. Mullen 62 Todd M. Abbrecht 62 Wendy L. Masler 34 Andrew D. Flaster 34 First Trust Co. FBO Kristina A. Watts 34 Charles W. Robins 34 James Westra 34 Charles A. Brizius 62 ----- TOTAL 8,358 ===== EXHIBIT C TRANSFER RESTRICTED ------------------- These warrants and the securities issuable upon the exercise hereof have not been registered under the Securities Act of 1933, as amended, or any state Securities Laws and may not be offered or sold except in compliance therewith. These warrants and the securities issuable upon the exercise hereof are subject to the terms and conditions, including certain restrictions on transfer, of an Investors' Agreement dated as of January 21, 1998, as amended from time to time, and none of such securities, or any interest therein, shall be transferred, pledged, encumbered or otherwise disposed of except as provided in that Agreement. A copy of the Investors' Agreement is on file with the Secretary of the Company and will be mailed to any properly interested person without charge within five (5) days after receipt of a written request. FORM OF FACE OF WARRANT CERTIFICATE WARRANTS TO PURCHASE SHARES OF FISHER SCIENTIFIC INTERNATIONAL INC. VOTING COMMON STOCK No. ____ Certificate for __ Warrants This certifies that ___________________, or registered assigns, is the registered holder of the number of Warrants set forth above. Each Warrant entitles the holder thereof (a "Holder"), subject to the provisions contained herein and in the Common Stock Warrant Acquisition Agreement referred to below, to receive from Fisher Scientific International Inc., a Delaware corporation (the "Company"), one share of Voting Common Stock, par value $0.01 per share ("Voting Common Stock"), of the Company ("Shares"), at the exercise price (the "Exercise Price") of $48.25 per share, subject to adjustment upon the occurrence of certain events. This Warrant Certificate is issued under and in accordance with the Common Stock Warrant Acquisition Agreement, dated as of January 21, 1998 (the "Warrant Agreement"), between the Company and certain entities and persons named therein, and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. The Warrant Agreement is hereby incorporated herein by reference and made a part hereof. Reference is hereby made to the Warrant Agreement for a full statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company and the Holders of the Warrants. Terms defined in the Warrant Agreement are used herein as therein defined. The Warrants represented by this Warrant Certificate shall be exercisable prior to the close of business on the Expiration Date. The Exercise Price and the number of shares of Voting Common Stock issuable upon the exercise of each Warrant are subject to adjustment as provided in the Warrant Agreement. All Shares issuable by the Company upon the exercise of Warrants shall, upon such issue, be duly and validly issued and fully paid and nonassessable. In order to exercise a Warrant, the registered holder hereof must surrender this Warrant Certificate at the office of the Company, with the Exercise Subscription Form on the reverse hereof duly executed by the Holder hereof, with signature guaranteed as therein specified, together with any required payment in full of the Exercise Price then in effect for the Underlying Shares as to which the Warrant(s) represented by this Warrant Certificate are submitted for exercise, all subject to the terms and conditions hereof and of the Warrant Agreement. Any such payment of the Exercise Price shall be in accordance with Section 3.4(a) of the Warrant Agreement. The Company shall pay all issuance and transfer taxes and similar governmental charges that may be imposed on the Company in connection with the issuance of the Warrants or any securities deliverable upon exercise of Warrants. The Company shall not be required, however, to pay any tax or other charge imposed in connection with any transfer involved in the issue of any certificate for Underlying Shares or payment of cash to any person other than the Holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and in case of such transfer or payment, the Company shall not be required to issue any stock certificate or pay any cash until such tax or other charge has been paid or it has been established to the Company's satisfaction that no such tax or other charge is due. Subject to compliance with the Warrant Agreement, this Warrant Certificate and all rights hereunder are transferable by the registered holder hereof, in whole or in part, on the register of the Company, upon surrender of this Warrant Certificate for registration of transfer at the office of the Company, duly endorsed by, or accompanied by a written instrument of transfer substantially in the form of the attached Form of Assignment or otherwise in a form satisfactory to the Company duly executed by, the Holder hereof or his attorney duly authorized in writing, with signature guaranteed. Upon any partial transfer, the Company will issue and deliver to such holder a new Warrant Certificate or Certificates with respect to any portion not so transferred. No service charge shall be made for any registration of transfer or exchange of the Warrant Certificates, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Each Holder of this Warrant Certificate by taking or holding the same consents and agrees that this Warrant Certificate when duly endorsed in blank shall be deemed negotiable and that when this Warrant Certificate shall have been so endorsed, the Holder hereof may be treated by the Company and all other Persons dealing with this Warrant Certificate as the absolute owner hereof for any purpose and as the Person entitled to exercise the rights represented hereby, or to the transfer hereof on the register of the Company maintained by a Warrant agent, any notice to the contrary notwithstanding, but until such transfer on such register, the Company may treat the registered Holder hereof as owner for all purposes. This Warrant Certificate and the Warrant Agreement are subject to amendment as provided in the Warrant Agreement. All terms used in this Warrant Certificate and not defined herein that are defined in the Warrant Agreement shall have the meanings assigned to them in the Warrant Agreement. Dated: ________________ 1998 FISHER SCIENTIFIC INTERNATIONAL INC. By: ----------------------------- Name: Title: FORM OF REVERSE OF WARRANT CERTIFICATE EXERCISE SUBSCRIPTION FORM (To be executed only upon exercise of Warrant) To: FISHER SCIENTIFIC INTERNATIONAL INC. The undersigned irrevocably exercises _____________ of the Warrants for the acquisition of one share of Voting Common Stock (subject to adjustment), par value $0.01 per share, of Fisher Scientific International Inc. (a "Share"), for each Warrant represented by the Warrant Certificate and herewith makes payment of $____ (such payment being in cash or by certified or official bank check payable to the order of Fisher Scientific International Inc.), all at the Exercise Price and on the terms and conditions specified in this Warrant Certificate and the Common Stock Warrant Acquisition Agreement therein referred to, surrenders this Warrant Certificate and all right, title and interest therein to Fisher Scientific International Inc. and directs that the Shares deliverable upon the exercise of such Warrants be registered or placed in the name and at the address specified below and delivered thereto. Date: __________ 19__ _______________________________(1) (Signature of Owner) _________________________________ (Street Address) _________________________________ (City) (State) (Zip Code) Signature Guaranteed by: _________________________________ - ------------ (1) Signature must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and must be guaranteed by a financial institution satisfactory to the Company. Securities and/or check to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and Zip Code: Any unexercised Warrants evidenced by the within Warrant Certificate to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and Zip Code: EXHIBIT D TRANSFER RESTRICTED ------------------- These warrants and the securities issuable upon the exercise hereof have not been registered under the Securities Act of 1933, as amended, or any state Securities Laws and may not be offered or sold except in compliance therewith. These warrants and the securities issuable upon the exercise hereof are subject to the terms and conditions, including certain restrictions on transfer, of an Investors' Agreement dated as of January 21, 1998, as amended from time to time, and none of such securities, or any interest therein, shall be transferred, pledged, encumbered or otherwise disposed of except as provided in that Agreement. A copy of the Investors' Agreement is on file with the Secretary of the Company and will be mailed to any properly interested person without charge within five (5) days after receipt of a written request. FORM OF FACE OF WARRANT CERTIFICATE WARRANTS TO PURCHASE SHARES OF FISHER SCIENTIFIC INTERNATIONAL INC. NON-VOTING COMMON STOCK No. ____ Certificate for __ Warrants This certifies that ________________, or registered assigns, is the registered holder of the number of Warrants set forth above. Each Warrant entitles the holder thereof (a "Holder"), subject to the provisions contained herein and in the Common Stock Warrant Acquisition Agreement referred to below, to receive from Fisher Scientific International Inc., a Delaware corporation (the "Company"), one share of Non-Voting Common Stock, par value $0.01 per share ("Non-Voting Common Stock"), of the Company ("Shares"), at the exercise price (the "Exercise Price") of $48.25 per share, subject to adjustment upon the occurrence of certain events. This Warrant Certificate is issued under and in accordance with the Common Stock Warrant Acquisition Agreement, dated as of January 21, 1998 (the "Warrant Agreement"), between the Company and certain entities and persons named therein, and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. The Warrant Agreement is hereby incorporated herein by reference and made a part hereof. Reference is hereby made to the Warrant Agreement for a full statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company and the Holders of the Warrants. Terms defined in the Warrant Agreement are used herein as therein defined. The Warrants represented by this Warrant Certificate shall be exercisable prior to the close of business on the Expiration Date. The Exercise Price and the number of shares of Non-Voting Common Stock issuable upon the exercise of each Warrant are subject to adjustment as provided in the Warrant Agreement. All Shares issuable by the Company upon the exercise of Warrants shall, upon such issue, be duly and validly issued and fully paid and nonassessable. In order to exercise a Warrant, the registered holder hereof must surrender this Warrant Certificate at the office of the Company, with the Exercise Subscription Form on the reverse hereof duly executed by the Holder hereof, with signature guaranteed as therein specified, together with any required payment in full of the Exercise Price then in effect for the Underlying Shares as to which the Warrant(s) represented by this Warrant Certificate are submitted for exercise, all subject to the terms and conditions hereof and of the Warrant Agreement. Any such payment of the Exercise Price shall be in accordance with Section 3.4(a) of the Warrant Agreement. The Company shall pay all issuance and transfer taxes and similar governmental charges that may be imposed on the Company in connection with the issuance of the Warrants or any securities deliverable upon exercise of Warrants. The Company shall not be required, however, to pay any tax or other charge imposed in connection with any transfer involved in the issue of any certificate for Underlying Shares or payment of cash to any person other than the Holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and in case of such transfer or payment, the Company shall not be required to issue any stock certificate or pay any cash until such tax or other charge has been paid or it has been established to the Company's satisfaction that no such tax or other charge is due. Subject to compliance with the Warrant Agreement, this Warrant Certificate and all rights hereunder are transferable by the registered holder hereof, in whole or in part, on the register of the Company, upon surrender of this Warrant Certificate for registration of transfer at the office of the Company, duly endorsed by, or accompanied by a written instrument of transfer substantially in the form of the attached Form of Assignment or otherwise in a form satisfactory to the Company duly executed by, the Holder hereof or his attorney duly authorized in writing, with signature guaranteed. Upon any partial transfer, the Company will issue and deliver to such holder a new Warrant Certificate or Certificates with respect to any portion not so transferred. No service charge shall be made for any registration of transfer or exchange of the Warrant Certificates, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Each Holder of this Warrant Certificate by taking or holding the same consents and agrees that this Warrant Certificate when duly endorsed in blank shall be deemed negotiable and that when this Warrant Certificate shall have been so endorsed, the Holder hereof may be treated by the Company and all other Persons dealing with this Warrant Certificate as the absolute owner hereof for any purpose and as the Person entitled to exercise the rights represented hereby, or to the transfer hereof on the register of the Company maintained by a Warrant agent, any notice to the contrary notwithstanding, but until such transfer on such register, the Company may treat the registered Holder hereof as owner for all purposes. This Warrant Certificate and the Warrant Agreement are subject to amendment as provided in the Warrant Agreement. All terms used in this Warrant Certificate and not defined herein that are defined in the Warrant Agreement shall have the meanings assigned to them in the Warrant Agreement. Dated: ___________ 1998 FISHER SCIENTIFIC INTERNATIONAL INC. By: ------------------------------ Name: Title: FORM OF REVERSE OF WARRANT CERTIFICATE EXERCISE SUBSCRIPTION FORM (To be executed only upon exercise of Warrant) To: FISHER SCIENTIFIC INTERNATIONAL INC. The undersigned irrevocably exercises _____________ of the Warrants for the acquisition of one share of Non-Voting Common Stock (subject to adjustment), par value $0.01 per share, of Fisher Scientific International Inc. (a "Share"), for each Warrant represented by the Warrant Certificate and herewith makes payment of $____ (such payment being in cash or by certified or official bank check payable to the order of Fisher Scientific International Inc.), all at the Exercise Price and on the terms and conditions specified in this Warrant Certificate and the Common Stock Warrant Acquisition Agreement therein referred to, surrenders this Warrant Certificate and all right, title and interest therein to Fisher Scientific International Inc. and directs that the Shares deliverable upon the exercise of such Warrants be registered or placed in the name and at the address specified below and delivered thereto. Date: __________ 19__ _______________________________(1) (Signature of Owner) _________________________________ (Street Address) _________________________________ (City) (State) (Zip Code) Signature Guaranteed by: _________________________________ - ------------ (1) Signature must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and must be guaranteed by a financial institution satisfactory to the Company. Securities and/or check to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and Zip Code: Any unexercised Warrants evidenced by the within Warrant Certificate to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and Zip Code: FORM OF ASSIGNMENT FOR VALUE RECEIVED the undersigned registered holder of the enclosed Warrant Certificate hereby sells, assigns, and transfers unto the Assignee(s) named below (including the undersigned with respect to any Warrants constituting a part of the Warrants evidenced by the enclosed Warrant Certificate not being assigned hereby) all of the rights of the undersigned under the enclosed Warrant Certificate, with respect to the number of Warrants set forth below: Social Security or Other Identifying Name of Number of Name of Assignees Address Assignee(s)_ Warrants - --------- ------- ------------ -------- and does hereby irrevocably constitute and appoint Fisher Scientific International Inc. the undersigned's attorney to make such transfer on the books of Fisher Scientific International Inc. maintained for that purpose, with full power of substitution in the premises. Date: __________ 19__ _____________________________(1) (Signature of Owner) _____________________________ (Street Address) _____________________________ (City) (State) (Zip Code) Signature Guaranteed By: _____________________________ (1) The signature must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change whatever. EX-5 6 INVESTORS' AGREEMENT dated as of January 21, 1998 among FISHER SCIENTIFIC INTERNATIONAL, INC., THOMAS H. LEE EQUITY FUND III, L.P., THL-CCI LIMITED PARTNERSHIP, THL FOREIGN FUND III, L.P., THL FSI EQUITY INVESTORS, L.P., DLJ MERCHANT BANKING PARTNERS II, L.P., DLJ MERCHANT BANKING PARTNERS II - A, L.P., DLJ OFFSHORE PARTNERS II, C.V., DLJ DIVERSIFIED PARTNERS, L.P., DLJ DIVERSIFIED PARTNERS - A, L.P., DLJ MILLENNIUM PARTNERS, L.P. DLJ MILLENNIUM PARTNERS - A, L.P., DLJMB FUNDING II, INC., UK INVESTMENT PLAN 1997 PARTNERS, DLJ EAB PARTNERS, L.P., DLJ ESC II, L.P., DLJ FIRST ESC, L.P., CHASE EQUITY ASSOCIATES, L.P., MERRILL LYNCH KECALP L.P. 1997, KECALP INC., ML IBK POSITIONS, INC. AND CERTAIN OTHER PERSONS NAMED HEREIN TABLE OF CONTENTS ----------------- Page ---- ARTICLE I DEFINITIONS............................................................ 2 Section 1.1 Definitions............................................... 2 ARTICLE II CORPORATE GOVERNANCE AND MANAGEMENT.................................... 13 Section 2.1 Composition of the Board.................................. 13 Section 2.2 Removal................................................... 13 Section 2.3 Vacancies................................................. 14 Section 2.4 Action by the Board....................................... 14 Section 2.5 Conflicting Charter or Bylaw Provision.................... 15 ARTICLE III RESTRICTIONS ON TRANSFER............................................... 15 Section 3.1 General................................................... 15 Section 3.2 Legends................................................... 16 Section 3.3 Permitted Transferees; Transfers by THL Entities.......... 16 Section 3.4 Restrictions on Transfers by Institutional Shareholders... 17 Section 3.5 Restrictions on Transfers by Management Shareholders...... 18 Section 3.6 Company Right of First Refusal............................ 19 Section 3.7 Notifications Regarding Transfers......................... 20 ARTICLE IV TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS................. 20 Section 4.1 Rights to Participate in Transfer......................... 20 Section 4.2 Right to Compel Participation in Certain Transfers........ 23 Section 4.3 Preemptive Rights......................................... 26 Section 4.4. Certain Other Purchases of Equity Securities.............. 29 ARTICLE V REGISTRATION RIGHTS.................................................... 30 Section 5.1 Demand Registration....................................... 30 Section 5.2 Piggyback Registration.................................... 34 Section 5.3 Holdback Agreements....................................... 35 Section 5.4 Registration Procedures................................... 36 Section 5.5 Indemnification by the Company............................ 40 Section 5.6 Indemnification by Participating Shareholders............. 41 Section 5.7 Conduct of Indemnification Proceedings.................... 43 Section 5.8 Contribution.............................................. 44 Section 5.9 Participation in Public Offering.......................... 46 Section 5.10 Cooperation by the Company................................ 46 Section 5.11 No Transfer of Registration Rights........................ 46 ARTICLE VI CERTAIN COVENANTS AND AGREEMENTS....................................... 46 Section 6.1 Confidentiality........................................... 46 Section 6.2 Reports................................................... 48 Section 6.3 Limitations on Subsequent Registration.................... 48 Section 6.4 Limitation on Purchase of Equity Securities............... 49 ARTICLE VII MISCELLANEOUS.......................................................... 51 Section 7.1 Entire Agreement.......................................... 51 Section 7.2 Binding Effect; Benefit................................... 51 Section 7.3 Assignability............................................. 51 Section 7.4 Amendment; Waiver; Termination............................ 51 Section 7.5 Notices................................................... 52 Section 7.6 Headings.................................................. 55 Section 7.7 Counterparts.............................................. 55 Section 7.8 Applicable Law............................................ 55 Section 7.9 Specific Performance...................................... 55 Section 7.10 Consent to Jurisdiction; Expenses......................... 55 Section 7.11 Representative............................................ 56 Section 7.12 Severability.............................................. 59 INVESTORS' AGREEMENT AGREEMENT dated as of January 21, 1998 among (i) Fisher Scientific International, Inc. (the "Company"), (ii) Thomas H. Lee Equity Fund III, L.P. ("THL"), certain individuals associated with THL listed on Schedule I attached hereto, THL-CCI Limited Partnership ("THL-CCI"), THL Foreign Fund III, L.P. and THL FSI Equity Investors, L.P. ("THL/FSI" and collectively with THL, the individuals listed on Schedule I, THL-CCI, and THL Foreign Fund III, L.P., the "THL Entities"), (iii) DLJ Merchant Banking Partners II, L.P. ("DLJMB"), DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJMB Funding II, Inc., DLJ Merchant Banking Partners II - A, L.P., DLJ Diversified Partners - A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners - A, L.P., UK Investment Plan 1997 Partners, DLJ EAB Partners, L.P., DLJ ESC II, L.P., and DLJ First ESC, L.P. (collectively the "DLJ Entities"), (iv) Chase Equity Associates, L.P. ("Chase Equity"), (v) Merrill Lynch KECALP L.P. 1997, KECALP INC., and ML IBK Positions, Inc., (collectively, the "Merrill Lynch Entities" and, together with each other entity listed in clauses (iii) and (iv), the "Institutional Shareholders" and, collectively with (ii), the "Equity Investors") and (vi) certain other Persons listed on the signature pages hereof (including the trust pursuant to the Trust Agreement, dated of even date herewith, between the Company and Mellon Bank, N.A., as trustee (the "Rabbi Trust")) (the "Management Shareholders" and individually, along with the THL Entities, DLJ Entities, Chase Equity, and Merrill Lynch Entities, each a "Shareholder") and such other parties who may become parties of this Agreement pursuant to the terms hereof. W I T N E S S E T H : WHEREAS, pursuant to the Subscription Agreement (as defined below) the Equity Investors are or will be acquiring securities of FSI Merger Corp. ("FSI"); and WHEREAS, pursuant to the terms of the Merger Agreement (as defined below), FSI will be merged with and into the Company, with the Company as the surviving corporation (the "Merger"); and WHEREAS, pursuant to the Merger, the stock of FSI held by the Equity Investors will be converted into stock of the Company; and WHEREAS, pursuant to the Merger, the Management Shareholders are entitled to retain shares of stock of the Company; and WHEREAS, upon the Merger and pursuant to the Equity Investors' commitment to purchase cumulative preferred stock of the Company, warrants to purchase common stock of the Company will be issued to the Equity Investors; and WHEREAS, pursuant to the Rabbi Trust and any stock or option plan, Management Shareholders are or will hold shares of stock of the Company; and WHEREAS, the parties hereto may obtain additional shares of stock of the Company in the future; and WHEREAS, the parties hereto desire to enter into this Agreement to govern certain of their rights, duties and obligations after consummation of the Merger; The parties hereto agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. (a) The following terms, as used herein, have the following meanings: "Adverse Person" means any Person whom the Board reasonably determines is a competitor or a potential competitor of the Company or its Subsidiaries. "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person, provided that no securityholder of the Company shall be deemed an Affiliate of any other securityholder solely by reason of any investment in the Company. For the purpose of this definition, the term "control" (including with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. "Applicable Law," with respect to any Person, means all provisions of all laws, statutes, ordinances, rules, regulations, permits, certificates or orders of any Governmental Authority applicable to such Person or any of its assets or property or to which such Person or any of its assets or property is subject, and all judgments, injunctions, orders and decrees of all courts and arbitrators in proceedings or actions in which such Person is a party or by which it or any of its assets of properties is or may be bound or subject. "beneficially own" shall have the meaning set forth in Rule 13d-3 of the Exchange Act. "Board" means the board of directors of the Company. "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close. "Closing Date" means January 21, 1998. "Common Stock" shall mean the common stock, par value $.01 per share, of the Company, non-voting common stock, par value $.01 per share, of the Company and any stock into which such common stock and non-voting common stock may thereafter be converted or changed. "Demand Registration" means collectively, a THL Demand Registration, an Institutional Shareholder Demand Registration, or a Management Shareholder Demand Registration. "Derivatives" shall mean options, warrants (including the Equity Warrants) or other rights to acquire any Equity Securities of the Company. "Equity Investors" means the Institutional Shareholders and the THL Entities. "Equity Securities" means the Common Stock and preferred stock, securities convertible into or exchangeable for Common Stock or preferred stock, Derivatives, and any other equity security issued by the Company. "Equity Warrants" means warrants to purchase Common Stock pursuant to the Equity Warrant Acquisition Agreement. "Equity Warrant Acquisition Agreement" means the Common Stock Warrant Acquisition Agreement, of even date herewith, among the Company, the Institutional Shareholders and the THL Entities. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Federal Reserve Board" means The Board of Governors of the United States Federal Reserve System. "Fully Diluted" means, with respect to any class of Equity Securities, all outstanding shares of such class and all shares issuable in respect of securities convertible into or exchangeable for such class, stock appreciation rights or options, warrants and other irrevocable rights to purchase or subscribe for such class or securities convertible into or exchangeable for such class; provided, that no Person shall be deemed to own such number of Fully Diluted shares of such class as such Person has the right to acquire from any Person other than the Company. "Initial Ownership" means, with respect to any class of Equity Securities, the number of shares of such class of Equity Securities beneficially owned and (without duplication) which such Persons have the right to acquire from any Person as of the date hereof, or in the case of any Person that shall become a party to this Agreement on a later date, as of such date, taking into account any stock split, stock dividend, reverse stock split or similar event. "Initial Public Offering" means the first sale after the date hereof of Common Stock pursuant to an effective registration statement under the Securities Act (other than a registration statement on Form S-8 or any successor form). "Merger Agreement" means the Second Amended and Restated Agreement and Plan of Merger, as amended, dated as of November 14, 1997, by and between the Company and FSI. "New Common Securities" means the Common Stock, whether now authorized or not, any rights, options or warrants to purchase Common Stock and any indebtedness or stock of the Company which is convertible into Common Stock (or which is convertible into a security which is, in turn, convertible into Common Stock) issued after the date hereof; provided, that the term "New Common Securities" does not include (i) such Equity Securities issued as a stock dividend to all holders of Common Stock pro rata or upon any subdivision or combination of shares of Common Stock; (ii) shares of Common Stock issued upon exercise of Derivatives outstanding on the date hereof; and (iii) shares of Common Stock issued to Michael D. Dingman (or entities designated by Mr. Dingman who become upon such issuance a party to this Agreement in accordance with Section 7.3(a) and (b)) in exchange for up to $7,500,000 in cash. "New Preferred Securities" means any preferred stock, whether now authorized or not, any rights, options or warrants to purchase preferred stock and any indebtedness or stock of the Company which is convertible into preferred stock (or which is convertible into a security which is, in turn, convertible into preferred stock) issued after the date hereof; provided, that the term "New Preferred Securities" does not include such Equity Securities issued as a stock dividend to all holders of preferred stock pro rata or upon any subdivision or combination of shares of preferred stock and (ii) shares of preferred stock issued upon exercise of Derivatives outstanding on the date hereof. "Non-THL Shareholders" means all Shareholders other than the THL Entities. "Percentage Ownership" means, with respect to any Shareholder at any time, (i) the number of Fully Diluted shares of Common Stock that such Shareholder beneficially owns (and, without duplication, has the right to acquire from any Person) at such time, divided by (ii) the total number of Fully Diluted shares of Common Stock at such time. "Permitted Transferee" means (i) in the case of Institutional Shareholders (A) the Company, (B) any THL Entity, (C) any general or limited partner or shareholder of such Shareholder, and any corporation, partnership or other entity that is an Affiliate of such Shareholder (collectively, "Shareholder Affiliates"), (D) any general partner, limited partner, employee, officer or director of such Shareholder or a Shareholder Affiliate, or any spouse, lineal descendant (whether natural or adopted), sibling, parent, heir, executor, administrator, testamentary trustee, lifetime trustee, legatee or beneficiary of any of the foregoing persons described in this clause (d) (collectively, "Shareholder Associates"), and (E) any trust, the beneficiaries of which, or any corporation, limited liability company or partnership, stockholders, members or general or limited partners of which include only such Shareholder, such Shareholder Affiliates or Shareholder Associates; provided, however, that in order for any of the parties identified in clauses (C), (D) or (E) to be a Permitted Transferee in connection with a Transfer (or series of related Transfers) in excess of 2.5% of such Institutional Shareholder's Initial Ownership of the class of Equity Securities to be transferred, such party must be acceptable to THL, which acceptance may not be unreasonably withheld and which acceptance shall not be required for the Transfer by KECALP Inc. of all of its Equity Securities to Merrill Lynch KECALP International L.P. 1997, a Cayman Islands limited partnership; provided, further, however, that the foregoing proviso shall not be applicable if the number of Shares of a class of Equity Securities to be Transferred by an Institutional Shareholder pursuant to clause (C), (D) or (E), together with all other Transfers of such class of Equity Securities by such Institutional Shareholder and its Permitted Transferees pursuant to any of such clauses, is less than (I) the aggregate number of Shares of such class of Equity Securities Transferred by the THL Entities and their THL Designated Transferees in accordance with clause (A) or (B) of the definition of "THL Designated Transferees" multiplied by (II) such Institutional Shareholders' Initial Proportionate Equity Interest of such class, treating for purposes of this proviso the Equity Warrants as part of the class of Common Stock, or (ii) in the case of a Management Shareholder (A) the Company, (B) any THL Entity, (C) a spouse or lineal descendant (whether natural or adopted), sibling, parent, heir, executor, administrator, testamentary trustee, lifetime trustee, legatee or beneficiary of any of such Management Shareholder, (D) any trust, the beneficiaries of which, or any corporation, limited liability company or partnership, stockholders, members or general or limited partners of which include only the Persons named in clause (B) or (C), (E) bona fide financial institutions, to the extent that such transfer is in connection with a pledge in connection with a borrowing arrangement unrelated to a constructive or synthetic sale, such as any hedge, sale or purchase of any derivative security or other action (other than Transfers expressly permitted by the terms hereof) having the effect of reducing a Management Shareholder's economic interest in Equity Securities or reducing a Management Shareholder's exposure to a decrease in fair market value of Equity Securities, or other similar transaction involving such Management Shareholder's Equity Securities, or (F) a charitable institution as defined in Section 501(c) of the Internal Revenue Code of 1986, as amended, which receives a bona fide gift of Shares, which when aggregated with all other Transfers of Shares of such class of Equity Securities by such Management Shareholder and its Permitted Transferees pursuant to this clause (F) does not exceed 10% of such Management Shareholders' Initial Ownership of such class of Equity Securities. "Person" means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Primary Executives" means the following Management Shareholders: Paul M. Montrone and Paul M. Meister. "Public Offering" means any primary or secondary public offering of shares of Common Stock pursuant to an effective registration statement under the Securities Act other than pursuant to a registration statement filed in connection with a transaction of the type described in Rule 145 of the Securities Act or for the purpose of issuing securities pursuant to an employee benefit plan. "Qualifying Public Offering" means a Public Offering yielding aggregate gross proceeds of at least $50,000,000. "Registrable Securities" means at any time, with respect to any Shareholder or its Permitted Transferees, any shares of Common Stock then owned by such Shareholder or its Permitted Transferees until (i) a registration statement covering such securities has been declared effective by the SEC and such securities have been disposed of pursuant to such effective registration statement, (ii) such securities are sold under circumstances in which all of the applicable conditions of Rule 144 (or any similar provisions then in force) under the Securities Act are met or (iii) such securities are otherwise Transferred, the Company has delivered a new certificate or other evidence of ownership for such securities not bearing the legend required pursuant to this Agreement and such securities may be resold without subsequent registration under the Securities Act. "Registration Expenses" means (i) all registration and filing fees, (ii) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications of the securities registered), (iii) printing expenses, (iv) internal expenses of the Company (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), (v) reasonable fees and disbursements of counsel for the Company and customary fees and expenses for independent certified public accountants retained by the Company (including expenses relating to any comfort letters or costs associated with the delivery by independent certified public accountants of a comfort letter or comfort letters requested pursuant to Section 5.4(h) hereof), (vi) the reasonable fees and expenses of any special experts retained by the Company in connection with such registration, (vii) reasonable fees and expenses of up to one counsel for the Shareholders participating in the offering, (viii) fees and expenses in connection with any review of underwriting arrangements by the National Association of Securities Dealers, Inc. (the "NASD") including fees and expenses of any "qualified independent underwriter" and (ix) fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but shall not include any underwriting fees, discounts, commissions or transfer taxes attributable to the sale of Registrable Securities, or any out-of-pocket expenses (except as set forth in clause (vii) above) of the Shareholders or any fees and expenses of underwriter's counsel. "Regulated Stockholder" shall mean Chase Equity Associates, L.P. and any other Stockholder (i) that is subject to the provisions of Regulation Y or Regulation K of the Federal Reserve Board, 12 C.F.R. Part 225 (or any successor to such Regulations) and (ii) that holds Equity Securities of the Company and (iii) that has provided written notice to the Company of its status as a "Regulated Stockholder" hereunder. "Regulatory Problem" means any set of facts or circumstance wherein it has been asserted by any governmental regulatory agency (or a Regulated Stockholder reasonably believes that there is a risk of such assertion) that such Regulated Stockholder is not entitled to acquire, own, hold or control, or exercise any significant right (including the right to vote) with respect to, any Equity Securities of the Company or any subsidiary of the Company. "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended. "Shareholder" means each Person (other than the Company but including the Equity Investors and the Management Shareholders) who are or shall become a party to this Agreement, whether in connection with the execution and delivery hereof as of the date hereof, pursuant to Section 7.3 or otherwise, so long as such Person shall beneficially own any Equity Securities. "Shares" means shares of Common Stock and other Equity Securities held by the Shareholders on the date hereof or acquired hereafter, but excluding any Derivatives. "Subscription Agreement" means each Subscription Agreement of even date herewith between FSI and each of the Equity Investors. "Subsidiary" means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person. "THL Designated Transferee" means (A) any general or limited partner of the THL Entities (a "THL Partner"), and any corporation, partnership, or other entity which is an Affiliate of the THL Entities or any THL Partner (collectively, the "THL Affiliates"), (B) any managing director, general partner, director, limited partner, officer or employee of the THL Entities or a THL Affiliate, or the heirs, executors, administrators, testamentary trustees, lifetime trustees, legatees or beneficiaries of any of the foregoing Persons referred to in this clause (B) (collectively, "THL Associates"), (C) a charitable institution as defined in Section 501(c) of the Internal Revenue Code of 1986, as amended, which receives a bona fide gift by a THL Individual of Shares (D) a bank, financial institution or other lender which receives a bona fide pledge by a THL Individual of Shares, and (E) any trust, the beneficiaries of which, or any corporation, limited liability company or partnership, the stockholders, members or general or limited partners of which include only the THL Entities, THL Affiliates, THL Associates, their spouses or their lineal descendants. The term "THL Entities," to the extent the THL Entities shall have Transferred any of its Shares to "THL Designated Transferees," shall mean the THL Entities and the THL Designated Transferees of the THL Entities, taken together, and any right or action that may be exercised or taken at the election of the THL Entities may be exercised or taken at the election of the THL Entities and such THL Designated Transferees, unless otherwise restricted by the THL Entity engaging in such a transfer. "THL Individuals" means the Persons listed on Schedule I and Schedule II. "Underwritten Public Offering" means a firmly underwritten public offering of Registrable Securities of the Company pursuant to an effective registration statement under the Securities Act. (b) Each of the following terms is defined in the Section set forth opposite such term: Term Section ---- ------- Cause 2.2 Confidential Information 6.1(b) DLJ Entities Representative 7.11(b) Drag-Along Notice 4.2(b) Drag-Along Notice Period 4.2(b) Drag-Along Portion 4.2(a) Drag-Along Rights 4.2(a) Drag-Along Sale 4.2(a) Drag-Along Sale Price(s) 4.2(b) ethical wall 6.1(a) Holders 5.1(b) Indemnified Party 5.7 Indemnifying Party 5.7 Initial Proportionate Equity Interest 3.4 Inspectors 5.4(g) Institutional Shareholder Demand Registration 5.1(g) Management Representative 7.11(d) Management Transfer 3.5(a) Maximum Offering Size 5.1(e) Merrill Lynch Entities Representative 7.11(c) New Securities 4.3(a) Nominee 2.3(a) Offer Price 3.6(a) Offered Shares 3.6(a) Offeror 3.6(a) Option Period 3.6(a) Piggyback Registration 5.2(a) Preemptive Rights Notice 4.3(a) Preemptive Rights Portion 4.3(a) Primary Executive Demand Registration 5.1(h) Records 5.4(g) Representatives 6.1(b) Shareholder 7.3(a) Tag-Along Notice 4.1(b) Tag-Along Notice Period 4.1(b) Tag-Along Offer 4.1(b) Tag-Along Person 4.1(a) Tag-Along Portion 4.1(b) Tag-Along Response Notice 4.1(b) Tag-Along Right 4.1(b) Tag-Along Sale 4.1(a) Tag-Along Shareholder 4.1(a) Third Party Purchase Notice 4.4 Third Party Purchase Portion 4.4 THL Demand Registration 5.1(a) THL Entities Representative 7.11(a) THL Entity Shareholder 7.3(d) Threshold Percentage 4.1(a) Transfer 3.1(a) Transfer Notice 3.6(a) Trigger Date 6.4 ARTICLE II CORPORATE GOVERNANCE AND MANAGEMENT Section 2.1 Composition of the Board. The Board shall consist of at least 10, but no more than 11, members (two of which shall be individuals which are not "Affiliates" or "Associates" (as those terms are used within the meaning of Rule 12b-2 of the General Rules and Regulations under the Exchange Act) of any Shareholder or its Affiliates), of whom seven shall be nominated by THL, one shall be nominated by DLJMB, one shall be Paul M. Montrone and one shall be Paul M. Meister. Each Shareholder entitled to vote for the election of directors to the Board agrees that it will vote its shares of Common Stock or execute consents, as the case may be, and take all other necessary action (including causing the Company to call a special meeting of shareholders) in order to ensure that the composition of the Board is as set forth in this Section 2.1; provided that, no Shareholder shall be required to vote for another Shareholder's nominee or Mr. Montrone or Mr. Meister if the number of shares of Common Stock held by (i) Mr. Montrone and Mr. Meister collectively, or (ii) such other Shareholder making the nomination collectively with its Affiliates, as applicable, is, at the close of business on the day preceding such vote or execution of consents, less than 10% of such party's or parties' Initial Ownership of shares of Common Stock on a Fully Diluted basis; and, provided further, that for so long as Messrs. Montrone and Meister collectively own 10% or more of their collective Initial Ownership of shares of Common Stock on a Fully Diluted basis, designees nominated by THL and the Equity Investors shall be selected in good faith after consultation with Messrs. Montrone and Meister, which consultation shall involve a consideration of Messrs. Montrone and Meister's views relating to the Company. The initial Board shall consist of the individuals listed on Schedule III hereto. Section 2.2 Removal. Each Shareholder agrees that if, at any time, it is then entitled to vote for the removal of directors of the Company, it will not vote any of its shares of Common Stock in favor of the removal of any director who shall have been designated or nominated pursuant to Section 2.1 unless such removal shall be for Cause or such director or the Person(s) entitled to designate or nominate such director shall have consented to such removal in writing, provided that if the Persons entitled to designate or nominate any director pursuant to Section 2.1 shall request the removal, with or without Cause, of such director in writing, such Shareholder shall vote its shares of Common Stock in favor of such removal. Removal for "Cause" shall mean removal of a director because of such director's (a) willful and continued failure substantially to perform his duties with the Company in his established position, (b) willful conduct which is injurious to the Company or any of its Subsidiaries, monetarily or otherwise, or (c) conviction for, or guilty plea to, a felony or a crime involving moral turpitude. Section 2.3 Vacancies. If, as a result of death, disability, retirement, resignation, removal (with or without Cause) or otherwise, there shall exist or occur any vacancy on the Board: (a) the Shareholder(s) entitled under Section 2.1 to nominate such director whose death, disability, retirement, resignation or removal resulted in such vacancy, may, subject to the provisions of Section 2.1, nominate another individual (the "Nominee") to fill such vacancy and serve as a director of the Company; (b) subject to Section 2.1, each Shareholder then entitled to vote for the election of the Nominee as a director of the Company agrees that it will vote its shares of Common Stock, or execute a written consent, as the case may be, in order to ensure that the Nominee be elected to the Board; and (c) in the case of removal of either of the Primary Executives from the Board, the other Primary Executive, if he is still a member of the Board, shall be entitled to nominate an individual to fill the resulting vacancy, and the provisions of Section 2.3(b) shall apply to the election of such nominee. Section 2.4 Action by the Board. (a) A quorum of the Board shall consist initially of three directors; provided that THL shall have the right, subject to applicable law or regulation, in its sole discretion, until such time as THL owns less than 25% of its Initial Ownership of shares of Common Stock, to increase or decrease the number of directors necessary to constitute a quorum. (b) All actions of the Board shall require the affirmative vote of at least a majority of the directors at a duly convened meeting of the Board at which a quorum is present or the unanimous written consent of the Board; provided that, in the event there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy. Section 2.5 Conflicting Charter or Bylaw Provision. Each Shareholder shall vote its shares of Common Stock, and shall take all other actions reasonably necessary, to ensure that the Company's certificate of incorporation and bylaws (copies of which are attached hereto as Exhibits A and B) facilitate and do not at any time conflict with any provision of this Agreement. ARTICLE III RESTRICTIONS ON TRANSFER Section 3.1 General. (a) Each Equity Investor understands and agrees that the shares of Common Stock purchased pursuant to the Subscription Agreement and the Equity Warrants received pursuant to the Equity Warrant Acquisition Agreement have not been registered under the Securities Act and are restricted securities. Each Shareholder agrees that it will not, directly or indirectly, sell, assign, transfer, grant a participation in, pledge or otherwise dispose of ("Transfer") any Shares or Equity Warrants (or solicit any offers to buy or otherwise acquire, or take a pledge of any Shares or Equity Warrants) except in compliance with the Securities Act and the terms and conditions of this Agreement. (b) Any attempt by any Shareholder to Transfer any Shares or Equity Warrants not in compliance with this Agreement shall be null and void and the Company shall not, and shall cause any transfer agent not to, give any effect in the Company's stock records to such attempted Transfer. (c) Notwithstanding anything herein to the contrary, except as may be otherwise set forth in the applicable instrument, Derivatives (other than the Equity Warrants) shall be transferable only by will, law of descent or distribution or pursuant to Section 4.2 hereof. Section 3.2 Legends. (a) In addition to any other legend that may be required, each certificate for Shares that is issued to any Shareholder shall bear a legend in substantially the following form: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL LIMITATIONS OR RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT DATED AS OF JANUARY 21, 1998, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM FISHER SCIENTIFIC INTERNATIONAL INC. OR ANY SUCCESSOR THERETO." (b) If any Shares shall cease to be Registrable Securities under clause (i) or clause (ii) of the definition thereof, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate evidencing such Shares without the first sentence of the legend required by Section 3.2(a) endorsed thereon. If any Shares cease to be subject to any and all limitations or restrictions on Transfer set forth in this Agreement, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate evidencing such Shares without the second sentence of the legend required by Section 3.2(a) endorsed thereon. Section 3.3 Permitted Transferees; Transfers by THL Entities. Notwithstanding anything in this Agreement to the contrary, (a) any Non-THL Shareholder may at any time Transfer any or all of its Shares or Equity Warrants to one or more of its Permitted Transferees so long as (i) such Permitted Transferee shall have agreed in writing to be bound by the terms of this Agreement pursuant to Section 7.3 and (ii) the Transfer to such Permitted Transferee is not in violation of applicable federal or state securities laws and (b) any THL Entity may at any time Transfer any or all of its Shares or Equity Warrants to any third party (including THL Designated Transferees) so long as (i) the Transfer is in compliance with Section 4.1 hereof, (ii) if the transferee is to be treated as a THL Designated Transferee, such transferee shall have agreed in writing to be bound by the terms of this Agreement pursuant to Section 7.3 and (iii) the Transfer is not in violation of applicable federal or state securities laws. Section 3.4 Restrictions on Transfers by Institutional Shareholders. Except as provided in Section 3.3, each Institutional Shareholder and each Permitted Transferee of such Institutional Shareholder may Transfer its Shares and Equity Warrants only as follows: (i) in a Transfer made in compliance with Section 4.1 or 4.2; (ii) in a Public Offering in connection with the exercise of its rights under Article 5 hereof; (iii) following the earlier to occur of (A) the date on which the Percentage Ownership of such Institutional Shareholder and its Permitted Transferees is less than 25% of its Initial Ownership of shares of Common Stock and (B) the seventh anniversary of the Closing Date, to any Person other than any Adverse Person; or (iv) in a Transfer made after an Initial Public Offering in compliance with Rule 144 under the Securities Act; provided, however, notwithstanding the foregoing, the Institutional Shareholder may not Transfer an aggregate number of Shares of such class of Equity Securities that, together with all prior Transfers of such class by such Institutional Shareholder and its Permitted Transferees pursuant to one or more Rule 144 Transfers, represents more than (A) the aggregate number of Shares of such class Transferred by the THL Entities and their THL Designated Transferees (other than, in either case, to THL Designated Transferees) multiplied by (B) such Institutional Shareholders' Initial Proportionate Equity Interest of such class; provided, further, that, for purposes of this subsection (iv), the Equity Warrants shall be treated as part of the class of shares of Common Stock and the calculations described herein shall include the number of shares of Common Stock issuable upon exercise of such Equity Warrants. The "Initial Proportionate Equity Interest" of a party is such party's Initial Ownership of such class divided by the Initial Ownership of THL of such class. Section 3.5 Restrictions on Transfers by Management Shareholders. (a) Except as provided in Section 3.3, each Management Shareholder and each Permitted Transferee of such Management Shareholder may Transfer its Shares only as follows or as set forth in Section 3.5(b): (i) in a Transfer made in compliance with Section 4.1 or 4.2; (ii) in a Public Offering in connection with the exercise of its rights under Article 5 hereof; (iii) in a Transfer made after an Initial Public Offering in compliance with Rule 144 under the Securities Act; provided, however, notwithstanding the foregoing, the Management Shareholder may not Transfer an aggregate number of Shares of any class of Equity Securities that, together with all prior Transfers of such class by such Management Shareholder and its Permitted Transferees pursuant to one or more Rule 144 Transfers, represents more than (A) the aggregate number of Shares of such class Transferred by the THL Entities and their THL Designated Transferees (other than, in either case, to THL Designated Transferees) multiplied by (B) such Management Shareholders' Initial Proportionate Equity Interest of such class; (iv) following the tenth anniversary of the Closing Date to any Third Party other than an Adverse Person; or (v) subject to Section 3.6, a Transfer by a Management Shareholder to another Management Shareholder (a "Management Transfer"). (b) Each Management Shareholder and each Permitted Transferee of such Management Shareholder may Transfer its Shares to any Person other than an Adverse Person upon the occurrence of a Qualifying Public Offering. Section 3.6 Company Right of First Refusal. (a) If a Management Shareholder (an "Offeror") desires to Transfer Shares to another Management Shareholder pursuant to the provisions of Section 3.5(a)(v): (i) such Offeror shall give notice of such offer (the "Transfer Notice") to the Company. The Transfer Notice shall state the terms and conditions of such offer, including the name of the prospective purchaser, the proposed purchase price per share of such Shares (the "Offer Price"), payment terms (including a description of any proposed non-cash consideration), the type of disposition and the number of such Shares to be transferred ("Offered Shares"). The Transfer Notice shall further state that the Company may acquire, in accordance with the provisions of this Agreement, any of the Offered Shares for the price and upon the other terms and conditions, including deferred payment (if applicable), set forth therein. (ii) For a period of ten Business Days after receipt of the Transfer Notice (the "Option Period"), the Company may, by notice in writing to the Offeror delivering such Transfer Notice, elect in writing to purchase all, but not less than all, of the Offered Shares at the Offer Price. The closing of the purchase of Shares pursuant to Section 3.5, shall take place at the principal office of the Company on the tenth day after the expiration of the Option Period. At such Closing, the Company shall deliver to the Offeror, against delivery of certificates duly endorsed and stock powers representing the Shares being acquired by the Company, the Offer Price, on the same terms as set forth in the Transfer Notice (including any non-cash consideration described therein), payable in respect of the Shares being purchased by the Company. All of the foregoing deliveries will be deemed to be made simultaneously, and none shall be deemed completed until all have been completed. (b) The provisions of Section 3.6(a) shall not apply to a Management Shareholder (other than a Primary Executive) if such Management Shareholder Transfers Shares aggregating, with all other prior Transfers of Shares by such Management Shareholder, an amount less than 25% of such Management Shareholder's Initial Ownership. Section 3.7 Notifications Regarding Transfers. To the extent that either an Institutional Shareholder proposes a Transfer pursuant to Section 3.4(iv) or a Management Shareholder proposes a Transfer pursuant to Section 3.5(a)(iii), such Shareholder shall provide notice to THL at least five Business Days prior to the proposed Transfer Date of the number of Shares proposed to be Transferred. Not less that two Business Days prior to the proposed Transfer Date, THL shall notify such Shareholder of whether the Transfer is believed to be permitted based on the formulas set forth in Section 3.4(iv) or 3.5(a)(iii), as applicable. ARTICLE IV TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS Section 4.1 Rights to Participate in Transfer. (a) If the THL Entities propose to Transfer (a "Tag-Along Sale") shares of a class of Equity Securities, other than Transfers of shares of such class (i) in a Public Offering pursuant to the exercise of their rights under Article 5, (ii) to any THL Designated Transferee or (iii) up to the Threshold Percentage, the Non-THL Shareholders may, at their option, elect to exercise their rights under this Section 4.1 (each such Shareholder, a "Tag-Along Person); provided, however, that the exception set forth in clause (iii) shall not apply to the Primary Executives. The "Threshold Percentage" shall equal 5% in the aggregate of the THL Entities' Initial Ownership of such class of Equity Securities. (b) In the event of a proposed Transfer in accordance with paragraph (a) above, THL shall provide each Non-THL Shareholder written notice of the terms and conditions of such proposed Transfer ("Tag-Along Notice") at least 10 days prior to such proposed Transfer and offer each Tag-Along Person the opportunity to participate in such sale. The Tag-Along Notice shall identify the number of shares of such class of Equity Securities to be sold in the Tag-Along Sale ("Tag-Along Offer"), the price at which the Transfer is proposed to be made, and all other material terms and conditions of the Tag-Along Offer, including the form of the proposed agreement, if any. From the date of the Tag-Along Notice, each Tag-Along Person shall have the right (a "Tag-Along Right"), exercisable by written notice ("Tag-Along Response Notice") given to THL within 5 Business Days (the "Tag-Along Notice Period"), to request that THL include in the proposed Transfer the number of shares of such class of Equity Securities held by such Tag-Along Person as is specified in such notice; provided that if the aggregate number of shares of such class of Equity Securities proposed to be sold by the THL Entities and all Tag-Along Persons in such transaction exceeds the number of shares of such class of Equity Securities which can be sold on the terms and conditions set forth in the Tag-Along Notice, then only the Tag-Along Portion of shares of the THL Entities and each Tag-Along Person shall be sold pursuant to the Tag-Along Offer. "Tag-Along Portion" means, with respect to any class of Equity Securities, the number of shares of such class held (or, without duplication, that such Shareholder has the right to acquire from any Person) by the Tag-Along Person or THL, as the case may be, multiplied by a fraction, the numerator of which is the maximum number of shares of such class subject to the Tag-Along Offer and the denominator of which is the aggregate number of shares of such class on a Fully Diluted basis owned by all Shareholders. In the event the THL Entities shall propose to Transfer a number of shares of such class in excess of the Threshold Percentage, the Tag-Along Portion shall be calculated with respect to all of the shares proposed to be Transferred by the THL Entities. To the extent that the Tag-Along Notice provides that shares of Common Stock and Equity Warrants will be transferred (i) the Equity Warrants and the Common Stock shall be treated as part of a single class of Equity Securities and, if applicable, Equity Warrants are referred to in this Section 4.1 as "shares" of such class, (ii) the calculations described in this Section 4.1 with respect to such Tag-Along Notice shall include the number of shares of Common Stock issuable upon exercise of such Equity Warrants and (iii) the allocation between Equity Warrants and shares of Common Stock subject to the Tag-Along Rights will be proportional to the allocation of the number of Shares subject to the Tag-Along Notice as compared with the number of Equity Warrants subject to the Tag-Along Notice. (c) If the Tag-Along Persons exercise their Tag-Along Rights hereunder, each Tag-Along Person shall deliver, together with its Tag-Along Response Notice, to THL the certificate or certificates representing the Shares of such Tag-Along Person to be included in the Transfer, together with a limited power-of-attorney authorizing THL to Transfer such Shares on the terms set forth in the Tag-Along Notice. It is understood that to the extent THL can do so without affecting the other terms on which the Tag-Along Sale is proposed to be made, THL will seek to exclude from the terms of such Tag-Along Sale any material restrictions on the ability, following such Tag-Along Sale, of any Tag-Along Person to conduct its business in a manner consistent with past practice. Delivery of such certificate or certificates representing the shares to be Transferred and the limited power-of-attorney authorizing THL to Transfer such shares shall constitute an irrevocable acceptance of the Tag-Along Offer by such Tag-Along Persons. If, at the end of a 120 day period after such delivery, THL has not completed the Transfer of all such shares on substantially the same terms and conditions set forth in the Tag-Along Notice, THL shall return to each Tag-Along Person the limited power-of-attorney (and all copies thereof) together with all certificates representing the shares which such Tag-Along Person delivered for Transfer pursuant to this Section 4.1. (d) Concurrently with the consummation of the Tag-Along Sale, THL shall notify the Tag-Along Persons thereof, shall remit to the Tag-Along Persons the total consideration (by bank or certified check) for the Shares of the Tag-Along Persons Transferred pursuant thereto, and shall, promptly after the consummation of such Tag-Along Sale furnish such other evidence of the completion and time of completion of such Transfer and the terms thereof as may be reasonably requested by the Tag-Along Persons. (e) If at the termination of the Tag-Along Notice Period any Tag-Along Person shall not have elected to participate in the Tag-Along Sale, such Tag-Along Person will be deemed to have waived its rights under Section 4.1(a), with respect to the Transfer of its securities pursuant to such Tag-Along Sale. (f) If any Tag-Along Person declines to exercise its Tag-Along Rights or elects to exercise its Tag-Along Rights with respect to less than such Tag-Along Person's Tag-Along Portion, the THL Entities shall be entitled to Transfer, pursuant to the Tag-Along Offer, a number of shares held by the THL Entities equal to the number of shares constituting the portion of such Tag-Along Person's Tag-Along Portion with respect to which Tag-Along Rights were not exercised. (g) THL may sell, on behalf of the THL Entities and any Tag-Along Person who exercises the Tag-Along Rights pursuant to this Section 4.1, the shares subject to the Tag-Along Offer on the terms and conditions set forth in the Tag-Along Notice within 120 days of the date on which Tag-Along Rights shall have been waived, exercised or expire. Section 4.2 Right to Compel Participation in Certain Transfers. (a) If (i) the THL Entities propose to Transfer not less than 50% of their Initial Ownership of Common Stock to a Third Party in a bona fide sale or (ii) the THL Entities propose a Transfer in which the shares of Common Stock to be Transferred by Shareholders constitute more than 50% of the outstanding shares of Common Stock (a "Drag-Along Sale"), THL may at its option require all Shareholders to sell all Equity Securities proposed to be sold therein ("Drag-Along Rights") then held by every Non-THL Shareholder, and (subject to and at the closing of the Drag-Along Sale) to compel to exercise all, but not less than all, of the Derivatives (whether then vested or unvested) held by every Non-THL Shareholder and to sell all of the Shares received upon such exercise to such Third Party, for the same consideration and otherwise on the same terms and conditions as the THL Entities; provided, that any Non-THL Shareholder who holds Derivatives the exercise price per share of which is greater than the per share price at which the Shares are to be sold to the Third Party may, if required by THL to exercise such Derivatives, in place of such exercise, submit to irrevocable cancellation thereof without any liability for payment of any exercise price with respect thereto; provided, further, that, upon such Drag-Along Sale, the Primary Executives shall have the right, but not the obligation, to require the Equity Investors to, at THL's option, either arrange for the purchase by a third party or purchase directly all of the Shares held by such Primary Executive as a condition to consummation of such Drag-Along Sale and, in which case the number of shares to be sold by each Equity Investor will be reduced on a proportional basis. The number of shares of each class of Equity Securities to be sold by each Non-THL Shareholder will be the Drag-Along Portion of the shares of such class that such Non-THL Shareholder owns. "Drag-Along Portion" means, with respect to any Non-THL Shareholder and any class of Equity Securities, the number of Shares of such class of Equity Securities beneficially owned by such Non-THL Shareholder multiplied by a fraction, the numerator of which is the number of shares of such class of Equity Securities proposed to be sold by the THL Entities on behalf of the THL Entities and the Non-THL Shareholders (as reduced by the number of shares of such class of Equity Securities to be sold by the Primary Executives in excess of their pro rata interest) and the denominator of which is the total number of shares of such class of Equity Securities beneficially owned by the Shareholders. In the event the Drag-Along Sale is not consummated with respect to any shares acquired upon exercise of Derivatives, such Derivatives shall be deemed not to have been exercised or cancelled, as applicable. To the extent the Drag-Along Sale relates to Derivatives, and THL determines not to compel the exercise thereof, the Derivatives shall be treated as a separate class of Equity Securities and, if applicable, Derivatives are referred to in this Section 4.2 as "shares" of such class. (b) THL shall provide written notice of such Drag-Along Sale to the Non-THL Shareholders (a "Drag-Along Notice") not later than the fifteenth day prior to the proposed Drag-Along Sale. The Drag-Along Notice shall identify the Transferee, the number of shares of any class of Equity Securities, the consideration for which a Transfer is proposed to be made for each class of Equity Securities (the "Drag-Along Sale Price(s)") and all other material terms and conditions of the Drag-Along Sale. Subject to Section 4.2(d), each Non-THL Shareholder shall be required to participate in the Drag-Along Sale on the terms and conditions set forth in the Drag-Along Notice and to tender all its Shares as set forth below. It is understood that to the extent THL can do so without affecting the other terms on which the Drag-Along Sale is proposed to be made, THL will seek to exclude from the terms of such Drag-Along Sale any material restrictions on the ability, following such Drag-Along Sale, of any Non-THL Shareholder to conduct its business in a manner consistent with past practice. The price(s) payable in such Transfer shall be the Drag-Along Sale Price(s). Not later than the tenth day following the date of the Drag-Along Notice (the "Drag-Along Notice Period"), each of the Non-THL Shareholders shall deliver to a representative of THL designated in the Drag-Along Notice certificates representing all the Shares beneficially owned and held by such Non-THL Shareholder, duly endorsed, (or evidence of title and ownership of any Derivative which are subject to the Drag-Along Sale but which are not exercised in connection therewith) together with all other documents required to be executed in connection with such Drag-Along Sale, or if such delivery is not permitted by applicable law, an unconditional agreement to deliver such shares pursuant to this Section 4.2 at the closing for such Drag-Along Sale against delivery to such Non-THL Shareholder of the consideration therefor. If a Non-THL Shareholder should fail to deliver such certificates to THL, the Company shall cause the books and records of the Company to show that such shares are bound by the provisions of this Section 4.2 and that such shares shall be Transferred to the purchaser of the shares immediately upon surrender for Transfer by the holder thereof. (c) The THL Entities shall have a period of 90 days from the date of receipt of the Drag-Along Notice to consummate the Drag-Along Sale on the terms and conditions set forth in such Drag-Along Sale Notice. If the Drag-Along Sale shall not have been consummated during such period, THL shall return to each of the Non-THL Shareholders all certificates or other evidence of title and ownership representing shares that such Non-THL Shareholder delivered for Transfer pursuant hereto, together with any documents in the possession of THL executed by the Non-THL Shareholder in connection with such proposed Transfer, and all the restrictions on Transfer contained in this Agreement or otherwise applicable at such time with respect to shares owned by the Non-THL Shareholders shall again be in effect. (d) Concurrently with the consummation of the Transfer of shares pursuant to this Section 4.2, THL shall give notice thereof to all Shareholders, shall remit to each of the Shareholders who have surrendered their certificates or other evidence of title and ownership the total consideration (by bank or certified check) for the shares Transferred pursuant hereto and shall furnish such other evidence of the completion and time of completion of such Transfer and the terms thereof as may be reasonably requested by such Shareholders. (e) Notwithstanding any provision of this Agreement to the contrary, in the event the terms on which a Drag-Along Sale is proposed to be made shall include a provision which materially and adversely affects the ability of any Non-THL Shareholder to compete in any line of business or geographic area, such Non-THL Shareholder shall not be required to participate in the Drag-Along Sale on the terms and conditions set forth in the Drag-Along Notice. In the event any Shareholder shall elect, pursuant to the preceding sentence, not to participate in the Drag-Along Sale, THL Entities and their THL Designated Transferees shall have the right to purchase, and such Shareholder shall be obligated to sell to the THL Entities and their THL Designated Transferees such Shareholder's shares, at the Drag-Along Sale Price(s) and on substantially the same terms (other than any such non-compete provision), not later than immediately prior to the consummation of the Drag-Along Sale. Except as provided above, in connection with any Drag-Along Sale, all Shareholders shall be subject to (i) the same terms and conditions of sale and (ii) the same indemnity, contribution, hold-back, escrow or similar obligations. Section 4.3 Preemptive Rights. (a) The Company shall provide each Shareholder with a written notice (a "Preemptive Rights Notice") of any proposed issuance by the Company of Equity Securities at least 10 days prior to the proposed issuance date. Such notice shall specify the price at which the Equity Securities are to be issued and the other material terms of the issuance. (i) In the event the Company shall issue any New Common Securities or New Preferred Securities (collectively, the "New Securities") to any third party (including any Shareholder) prior to a Qualifying Public Offering, the THL Entities and each Management Shareholder shall be entitled to purchase, at the price and on the terms at which such New Securities are proposed to be issued and specified in such Preemptive Rights Notice, the THL Entities' or such Management Shareholder's Preemptive Rights Portion of such class of the New Securities proposed to be issued. "Preemptive Rights Portion" means, with respect to New Common Securities, the pro rata portion of New Common Securities proposed to be issued by the Company, which amount shall be based upon such Shareholder's Initial Ownership of shares of Common Stock as a percentage of the sum of the Initial Ownership of shares of Common Stock of (A) the THL Entities, (B) all Institutional Shareholders and (C) all Management Shareholders and, with respect to New Preferred Securities, the pro rata portion of New Preferred Securities proposed to be issued by the Company, which amount shall be based upon such Shareholder's Initial Ownership of shares of Preferred Stock as a percentage of the sum of the Initial Ownership of shares of Preferred Stock of (A) the THL Entities and (B) all Institutional Shareholders. (ii) In the event that the Company shall issue any New Securities to any third party (including any Shareholder) following a Qualifying Public Offering, the THL Entities shall be entitled to purchase, at the price and on the terms at which such New Securities are proposed to be issued and specified in such Preemptive Rights Notice, the THL Entities' Preemptive Rights Portion of such class of the New Securities proposed to be issued. (iii) In the event the THL Entities propose to purchase any New Securities from the Company pursuant to 4.3(a)(i) or (ii) or otherwise, (A) prior to a Qualifying Public Offering, each Institutional Shareholder, and (B) following a Qualifying Public Offering, each Non-THL Shareholder shall be entitled to purchase, at the price and on the terms at which the THL Entities propose to purchase such New Securities and specified in such Preemptive Rights Notice, such Shareholder's Preemptive Rights Portion of such class of the New Securities proposed to be issued in the transaction giving rise to the THL Entities' proposed purchase of New Securities; provided, however, such Shareholders shall not be entitled to purchase New Securities unless the THL Entities complete the purchase of New Securities in accordance with the Preemptive Rights Notice. A Shareholder may exercise its rights under this Section 4.3 by delivering written notice of its election to purchase New Securities to the Company, THL and each Non-THL Shareholder within five days of receipt of the Preemptive Rights Notice. A delivery of such a written notice (which notice shall specify the number of New Securities to be purchased by the Shareholder submitting such notice) by such Shareholder shall constitute a binding agreement of such Shareholder to purchase, subject to the purchase by THL of its portion of such New Securities, at the price and on the terms specified in the Preemptive Rights Notice, the number of New Securities specified in such Shareholder's written notice. (b) In the event any Non-THL Shareholder declines to exercise its preemptive rights under this Section 4.3 or elects to exercise such rights with respect to less than such Shareholder's Preemptive Rights Portion, the THL Entities shall have the right to purchase, or any Non-THL Shareholder designated by THL shall have the right to purchase, from the Company the number of New Securities constituting the Preemptive Rights Portion with respect to which such Non-THL Shareholder shall not have exercised its preemptive rights. (c) In the case of any issuance of New Securities, the Company shall have 90 days from the date of the Preemptive Rights Notice to consummate the proposed issuance of any or all of such New Securities which the Shareholders have not elected to purchase at the price and upon terms that are not materially less favorable to the Company than those specified in the Preemptive Rights Notice. At the consummation of such issuance, the Company shall issue certificates representing the New Securities to be purchased by each Shareholder exercising preemptive rights pursuant to this Section 4.3 registered in the name of such Shareholder, against payment by such Shareholder of the purchase price for such New Securities. If the Company proposes to issue New Securities after such 90-day period, it shall again comply with the procedures set forth in this Section. (d) Notwithstanding the foregoing, no Shareholder shall be entitled to purchase New Securities as contemplated by this Section 4.3 in connection with issuances of New Securities (i) to employees of the Company or any Subsidiary pursuant to employee benefit plans or arrangements approved by the Board (including upon the exercise of employee stock options), or (ii) in connection with any bona fide, arm's-length restructuring or refinancing of outstanding indebtedness (including convertible indebtedness) of the Company or any Subsidiary. The Company shall not be under any obligation to consummate any proposed issuance of New Securities, regardless of whether it shall have delivered a Preemptive Rights Notice in respect of such proposed issuance. (e) The Company will use its reasonable best efforts to provide the Preemptive Rights Notice at least 15 Business Days prior to any proposed issuance of New Securities. In the event it is impracticable to provide the Preemptive Rights Notice at least 15 Business Days prior to such issuance, any Shareholder may offer to finance or arrange to finance the purchase by any other Shareholder of such other Shareholder's Preemptive Rights Portion and such financing or arranging Shareholder shall be entitled to receive as compensation for such services reasonable and customary fees and expenses. No Shareholder shall be under any obligation to provide or arrange such financing for any other Shareholder. Section 4.4. Certain Other Purchases of Equity Securities. In the event, at any time after the date hereof and prior to the Trigger Date, the THL Entities shall acquire any Equity Securities from any Person other than the Shareholders, THL shall deliver, within five Business Days of the date of such acquisition, a notice to each Equity Investor (a "Third Party Purchase Notice") specifying the class of Equity Securities, the number of shares of such class acquired and the weighted average of price per share paid by the THL Entities. Such Third Party Purchase Notice shall constitute an offer to each such Shareholder to purchase such Shareholder's Third Party Purchase Portion of the number of shares of such class acquired by the THL Entities. A Shareholder may exercise its rights under this Section 4.4 by delivering written notice of its election to purchase its Third Party Purchase Portion within ten days of receipt of the Third Party Purchase Notice. A delivery of such written notice (which shall specify the number of shares of such class of Equity Securities to be purchased by the Shareholder submitting such notice) by such Shareholder shall constitute a binding agreement of such Shareholder to purchase, at the price and on the terms specified in the Third Party Purchase Notice, the number of shares of a class of Equity Securities specified in such notice. At the consummation of the Transfer of the shares of a class of Equity Securities purchased by the THL Entities to any Shareholder that has exercised its right hereunder, the THL Entities shall deliver to such Shareholder certificates or other evidence of title and ownership representing the shares such class of Equity Securities to be purchased against payment by such Shareholder of the purchase price for such shares of Equity Securities. "Third Party Purchase Portion" means, with respect to any Shareholder at any time, the number of shares of the class of Equity Securities purchased by the THL Entities in a transaction subject to Section 4.4, multiplied by a fraction, the numerator of which is (i) the number of shares of such class of Equity Securities on a Fully Diluted basis that such Shareholder beneficially owns at such time, and the denominator of which is (ii) the total number of shares of such class of Equity Securities on a Fully Diluted basis beneficially owned at such time by all Equity Investors. To the extent the Third Party Purchase Notice relates to Derivatives, such Derivatives shall be treated as a separate class of Equity Securities and, if applicable, Derivatives are referred to in this Section 4.4 as "shares" of such class. ARTICLE V REGISTRATION RIGHTS Section 5.1 Demand Registration. (a) If the Company shall receive a written request by THL that the Company effect the registration under the Securities Act of all or a portion of the THL Entities' Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "THL Demand Registration") at least five days prior to the anticipated filing date of the registration statement relating to such THL Demand Registration to the Non-THL Shareholders and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of: (i) the Registrable Securities of the THL Entities which the Company has been so requested to register; and (ii) subject to the restrictions set forth in Section 5.2, all other Registrable Securities of the same class as that to which THL's request relates for which an effective Piggyback Registration (as such term is defined in Section 5.2) request has been made; provided, that subject to Section 5.1(d) hereof, the Company shall not be obligated to effect more than six THL Demand Registrations. In no event will the Company be required to effect more than one THL Demand Registration within any four-month period. (b) Promptly after the expiration of the 2-day period referred to in Section 5.2(a) hereof, the Company will notify all the Shareholders to be included in the THL Demand Registration (the "Holders") of the other Holders and the number of Registrable Securities requested to be included therein. THL may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall not be considered a THL Demand Registration. (c) The Company will pay all Registration Expenses in connection with any THL Demand Registration. (d) A registration requested pursuant to this Section 5.1 shall not be deemed to have been effected (i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Holders included in such registration have actually been sold thereunder); provided, that if after any registration statement requested pursuant to this Section 5.1 becomes effective (x) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (y) less than 75% of the Registrable Securities included in such registration statement has been sold thereunder, such registration statement shall not be considered a THL Demand Registration, or (ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(e) such that less than 66 2/3% of the Registrable Securities of the THL Entities sought to be included in such registration are included. (e) If a THL Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and THL that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size: (A) first, all Registrable Securities requested by THL to be registered and all Registrable Securities requested to be included in such registration by any other Holder pursuant to an effective Piggyback Registration request (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the THL Entities and such Holders on the basis of the relative number of Registrable Securities held by such Shareholder); and (B) second, any securities proposed to be registered by the Company. provided, however, that in such case, any Holder may elect to withdraw such Holder's Registrable Securities from the registration. (f) Upon written notice to THL, the Company may postpone effecting a registration pursuant to this Section 5.1 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and THL in writing that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which had then been commenced or (ii) the Company has a bona fide business reason for determining that it is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company. (g) After the Company has effected two Demand Registrations pursuant to this Section 5.1 of Common Stock, the Institutional Shareholders, upon request of such Institutional Shareholders owning a majority of the Shares acquired by such Institutional Shareholders on the Closing Date, may request that the Company register shares of Registrable Securities then owned by such Institutional Shareholders (an "Institutional Shareholder Demand Registration"). In no event will the Company be required to effect more than one such Institutional Shareholder Demand Registration. The provisions of this Article 5 shall apply, mutatis mutandis, to any such Institutional Shareholder Demand Registration. (h) After the Transfer of Shares of Common Stock representing more than 20% of the Shares collectively owned by the Equity Investors of the Initial Ownership on a Fully Diluted basis owned by such Equity Investors, the Primary Executives may request that the Company register Shares which are Registrable Securities then owned by them (a "Primary Executive Demand Registration"). In no event will the Company be required to effect more than three such Primary Executive Demand Registrations. The provisions of this Article 5 shall apply, mutatis mutandis, to any such Primary Executive Demand Registration; provided, that, notwithstanding anything to the contrary herein, (i) no Primary Executive Demand Registrations may be made during the six month period following the Effective Time or within six months after the effective date any other registration statement (other than registration statement on From S-4 or S-8 or similar form), and (ii) the Company must use its best efforts to effect such Primary Executive Demand Registration as soon as practicable, but in no event later than 120 days following the date of the demand. Section 5.2 Piggyback Registration. (a) If the Company proposes to register any Equity Securities under the Securities Act, whether or not for sale for its own account (including pursuant to a Demand Registration), in connection with a public offering (other than a public offering pursuant to a registration statement filed in connection with a transaction of the type described in Rule 145 of the Securities Act or for the purpose of issuing securities pursuant to an employee benefit plan) it will each such time, subject to the provisions of Section 5.2(b) hereof, give prompt written notice at least five days prior to the anticipated filing date of the registration statement relating to such registration to all Shareholders and their respective Permitted Transferees (or, in the case of a Demand Registration to all Shareholders and their Permitted Transferees other than the Shareholder making the demand), which notice shall set forth such Shareholders' rights under this Section 5.2 and shall offer all Shareholders the opportunity to include in such registration statement such number of shares of Common Stock as each such Shareholder may request (a "Piggyback Registration"). Upon the written request of any such Shareholder made within 2 days (one of which shall be a Business Day) after the receipt of notice from the Company (which request shall specify the number of Registrable Securities intended to be disposed of by such Shareholder), the Company will use its reasonable best efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by such Shareholders, to the extent requisite to permit the disposition of the Registrable Securities so to be registered; provided, that (i) if such registration involves an Underwritten Public Offering, all such Shareholders requesting to be included in the Company's registration must sell their Registrable Securities to the underwriters selected as provided in Section 5.4(f) on the same terms and conditions as apply to the Company or the other selling Shareholder, as applicable, and (ii) if, at any time after giving written notice of its intention to register on its own behalf any stock and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register such stock, the Company shall give written notice to all such Shareholders and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration. No registration effected under this Section 5.2 on behalf of the Company shall relieve the Company of its obligations to effect a Demand Registration, to the extent required by Section 5.1 hereof. The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 5.2. (b) If a registration pursuant to this Section 5.2 involves an Underwritten Public Offering (other than in the case of an Underwritten Public Offering resulting from a Demand Registration, in which case the provisions with respect to priority of inclusion in such offering set forth in Section 5.1(e) shall apply) and the managing underwriter advises the Company that, in its view, the number of shares of Common Stock which the Company and the selling Shareholders intend to include in such registration exceeds the Maximum Offering Size, the Company will include in such registration, in the following priority, up to the Maximum Offering Size: (i) first, so much of the Equity Securities proposed to be registered for the account of the Company as would not cause the offering to exceed the Maximum Offering Size; and (ii) second, all Registrable Securities requested to be included in such registration by any Shareholder pursuant to an effective Piggyback Registration request (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of shares of Registrable Securities held by such Shareholder). Section 5.3 Holdback Agreements. With respect to each and every firmly Underwritten Public Offering, each Shareholder (collectively with all of its Affiliates which are Shareholders) owning Shares representing more than 1% of the then outstanding Shares (including Shares which would be held upon any conversion or exercise of rights) agrees, and their Permitted Transferees will agree, not to offer or sell any Shares (except for Shares, if any, sold in that Public Offering) during the period which commences on the 14th day prior to the effective date of the applicable registration statement for a public offering of Shares (except as part of such registration) and ends on the earlier of: (i) 180 days after the effective date of the registration statement or (ii) any such shorter period as the Company and the lead managing underwriter of an Underwritten Public Offering agree. Section 5.4 Registration Procedures. Whenever Shareholders request that any Registrable Securities be registered pursuant to Section 5.1 or 5.2 hereof, the Company will, subject to the provisions of such Sections, use its best efforts, or reasonable best efforts, as the case maybe, to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in any event within 60 days of the date of demand and in connection with any such request: (a) The Company will as expeditiously as possible prepare and file with the SEC a registration statement on any form selected by counsel for the Company and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its best efforts to cause such filed registration statement to become and remain effective for a period of not less than 180 days (or such shorter period in which all of the Registrable Securities of the Holders included in such registration statement shall have actually been sold thereunder). (b) The Company will, if requested, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish to each Shareholder and each underwriter, if any, of the Registrable Securities covered by such registration statement copies of such registration statement as proposed to be filed, and thereafter the Company will furnish to such Shareholder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such Shareholder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Shareholder. Each Shareholder shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to such Shareholder and the Company shall use its reasonable best efforts to comply with such request; provided, however, that the Company shall not have any obligation to so modify any information if so doing would cause the prospectus to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. (c) After the filing of the registration statement, the Company will (i) cause the related prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, (ii) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement during the applicable period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement or supplement to such prospectus and (iii) promptly notify each Shareholder holding Registrable Securities covered by such registration statement of any stop order issued or threatened by the SEC or any state securities commission under state blue sky laws and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered. (d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions in the United States as the Managing Underwriter or any Shareholder or Shareholders holding such Registrable Securities reasonably (in light of such Shareholder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Shareholder to consummate the disposition of the Registrable Securities owned by such Shareholder; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction. (e) The Company will immediately notify each Shareholder holding such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and make available to each such Shareholder and file with the SEC any such supplement or amendment. (f) In connection with (i) (A) any THL Demand Registration or (B) any registration by the Company of Registrable Securities, the Company shall appoint the underwriter or underwriters chosen by THL and (ii) (A) any Institutional Shareholder Demand Registration or (B) any Primary Executive Demand Registration, the Company shall appoint the underwriter or underwriters chosen by Shareholders holding the majority of the Registrable Securities to be registered; provided, that the underwriter or underwriters identified in accordance with clauses (ii)(A) and (ii)(B) shall be reasonably acceptable to the Company. The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, including the engagement of a "qualified independent underwriter" in connection with the qualification of the underwriting arrangements with the NASD. (g) Upon execution of confidentiality agreements in form and substance reasonably satisfactory to the Company, the Company will make available for inspection by any Shareholder and any underwriter participating in any disposition pursuant to a registration statement being filed by the Company pursuant to this Section 5.4 and any attorney, accountant or other professional retained by any such Shareholder or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably requested by any such Person, and cause the Company's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. (h) The Company will furnish to each such Shareholder and to each such underwriter, if any, a signed counterpart, addressed to such underwriter and the participating Shareholders, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as a majority of such Shareholders or the managing underwriter therefor reasonably requests. (i) The Company will otherwise use its best efforts to comply with all applicable rules and regulations of the SEC and the relevant state blue sky commissions, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act. (j) The Company may require each such Shareholder to promptly furnish in writing to the Company information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration. (k) Each such Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.4(e) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.4(e) hereof, and, if so directed by the Company, such Shareholder will deliver to the Company all copies, other than any permanent file copies then in such Shareholder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event that the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 5.4(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 5.4(e) hereof to the date when the Company shall make available to such Shareholder a prospectus supplemented or amended to conform with the requirements of Section 5.4(e) hereof. (l) The Company will use its best efforts to list such Registrable Securities on any securities exchange on which the Common Stock is then listed or on NASDAQ if the Common Stock is then quoted on NASDAQ not later than the effective date of such registration statement. Section 5.5 Indemnification by the Company. The Company agrees to indemnify and hold harmless each Shareholder holding Registrable Securities covered by a registration statement, its officers, directors, employees, partners and agents, and each Person, if any, who controls such Shareholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (and officers, directors, employees, partners and agents of such controlling Persons) from and against any and all losses, claims, damages, joint or several liabilities or expenses (including reasonable attorneys' fees and expenses and reasonable costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus relating to the Registrable Securities (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or any preliminary prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission so made in strict conformity with information furnished in writing to the Company by such Shareholder or on such Shareholder's behalf expressly for use therein; provided that with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus, or in any final prospectus, as the case may be, the indemnity agreement contained in this paragraph shall not apply to the extent that any such loss, claim, damage, liability or expense results from the fact that a current copy of the final prospectus (or, in the case of a final prospectus, the final prospectus as amended or supplemented) was not sent or given to the Person asserting any such loss, claim, damage, liability or expense at or prior to the written confirmation of the sale of the Registrable Securities concerned to such Person if it is determined that the Company has provided such current copy of such final prospectus (or such amended or supplemented prospectus, as the case may be) to such Shareholder in a timely manner prior to such sale and it was the responsibility of such Shareholder under the Securities Act to provide such Person with a current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) and such current copy of the final prospectus (or such amended or supplemented prospectus, as the case may be) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The Company also agrees to indemnify any underwriters of the Registrable Securities, their officers and directors and each person who controls such underwriters on substantially the same basis as that of the indemnification of the Shareholders provided in this Section 5.5. Section 5.6 Indemnification by Participating Shareholders. Each Shareholder holding Registrable Securities included in any registration statement agrees, severally but not jointly, to indemnify and hold harmless the Company, its officers, directors and agents and each Person (other than such Shareholder) if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Shareholder, but only (i) with respect to information furnished in writing by such Shareholder or on such Shareholder's behalf expressly for use in any registration statement or prospectus relating to the Registrable Securities, or any amendment or supplement thereto, or any preliminary prospectus or (ii) to the extent that any loss, claim, damage, liability or expense described in Section 5.5 results from the fact that a current copy of the final prospectus (or, in the case of a prospectus, the prospectus as amended or supplemented) was not sent or given to the Person asserting any such loss, claim, damage, liability or expense at or prior to the written confirmation of the sale of the Registrable Securities concerned to such Person if it is determined that it was the responsibility of such Shareholder to provide such Person with a current copy of the final prospectus (or such amended or supplemented prospectus, as the case may be) and such current copy of the final prospectus (or such amended or supplemented prospectus, as the case may be) would have cured the defect giving rise to such loss, claim, damage, liability or expense. Each such Shareholder shall be prepared, if required by the underwriting agreement, to indemnify and hold harmless underwriters of the Registrable Securities, their officers and directors and each person who controls such underwriters on substantially the same basis as that of the indemnification of the Company provided in this Section 5.6. As a condition to including Registrable Securities in any registration statement filed in accordance with Article 5 hereof, the Company may require that it shall have received an undertaking reasonably satisfactory to it from any underwriter to indemnify and hold it harmless to the extent customarily provided by underwriters with respect to similar securities. No Shareholder shall be liable under Section 5.6 for any damage thereunder in excess of the net proceeds realized by such Shareholder in the sale of the Registrable Securities of such Shareholder. Section 5.7 Conduct of Indemnification Proceedings. In case any proceeding (including any governmental investigation) shall be instituted involving any Person in respect of which indemnity may be sought pursuant to this Article 5, such Person (an "Indemnified Party") shall promptly notify the Person against whom such indemnity may be sought (the "Indemnifying Party") in writing and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Party, and shall assume the payment of all fees and expenses; provided that the failure of any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure to notify. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) in the reasonable judgment of such Indemnified Party representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Indemnified Parties, such firm shall be designated in writing by the Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent, or if there be a final judgment for the plaintiff, the Indemnifying Party shall indemnify and hold harmless such Indemnified Parties from and against any and all losses, claims, damages, liabilities and expenses or liability (to the extent stated above) by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability arising out of such proceeding. Section 5.8 Contribution. If the indemnification provided for in this Article 5 is held by a court of competent jurisdiction to be unavailable to the Indemnified Parties in respect of any losses, claims, damages or liabilities referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (i) as between the Company and the Shareholders holding Registrable Securities covered by a registration statement and their related Indemnified Parties on the one hand and the underwriters and their related Indemnified Parties on the other, in such proportion as is appropriate to reflect the relative benefits received by the Company and such Shareholders on the one hand and the underwriters on the other, from the offering of the Shareholders' Registrable Securities, or if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of the Company and such Shareholders on the one hand and of such underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations and (ii) as between the Company and their related Indemnified Parties on the one hand and each such Shareholder and their related Indemnified Parties on the other, in such proportion as is appropriate to reflect the relative fault of the Company and of each such Shareholder in connection with such statements or omissions, as well as any other relevant equitable considerations. The relative benefits received by the Company and such Shareholders on the one hand and such underwriters on the other shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company and such Shareholders bear to the total underwriting discounts and commissions received by such underwriters, in each case as set forth in the table on the cover page of the prospectus. The relative fault of the Company and such Shareholders on the one hand and of such underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and such Shareholders or by such underwriters. The relative fault of the Company on the one hand and of each such Shareholder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Shareholders agree that it would not be just and equitable if contribution pursuant to this Section 5.8 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.8 no underwriter shall be required to contribute any amount in excess of the underwriting discount applicable to securities purchased by such underwriter in such offering, less the aggregate amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no Shareholder shall be required to contribute any amount in excess of the amount by which the net proceeds realized on the sale of the Registrable Securities of such Shareholder exceeds the amount of any damages which such Shareholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Each Shareholder's obligation to contribute pursuant to this Section 5.8 is several in the proportion that the proceeds of the offering received by such Shareholder bears to the total proceeds of the offering received by all such Shareholders and not joint. Section 5.9 Participation in Public Offering. No Person may participate in any Underwritten Public Offering hereunder unless such Person (a) agrees to sell such Person's securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements and the provisions of this Agreement in respect of registration rights. Section 5.10 Cooperation by the Company. In the event any Shareholder shall Transfer any Registrable Securities pursuant to Rule 144A under the Securities Act, the Company shall cooperate, to the extent commercially reasonable, with such Shareholder and shall provide to such Shareholder such information as such Shareholder shall reasonably request. Section 5.11 No Transfer of Registration Rights. None of the rights of Shareholders under this Article 5 shall be assignable by any Shareholder to any Person acquiring securities of such Shareholder in any Public Offering or pursuant to Rule 144A of the Securities Act. ARTICLE VI CERTAIN COVENANTS AND AGREEMENTS Section 6.1 Confidentiality. (a) Each Shareholder hereby agrees that Confidential Information (as defined below) furnished and to be furnished to it was and will be made available in connection with such Shareholder's investment in the Company. Each Shareholder agrees that it will use the Confidential Information only in connection with its investment in the Company and not for any other purpose. Each Shareholder further acknowledges and agrees that it will not disclose any Confidential Information to any Person; provided that Confidential Information may be disclosed (i) to such Shareholder's Representatives (as defined below) in the normal course of the performance of their duties or to any financial institution providing credit to such Shareholder, (ii) to the extent required by applicable law, rule or regulation (including complying with any oral or written questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process to which a Shareholder is subject; provided that such Shareholder gives the Company prompt notice of such request(s), to the extent practicable, so that the Company may seek an appropriate protective order or similar relief (and the Shareholder shall cooperate with such efforts by the Company, and shall in any event make only the minimum disclosure required by such law, rule or regulation)), (iii) to any Person to whom such Shareholder is contemplating a Transfer of its Shares (provided that such Transfer would not be in violation of the provisions of this Agreement and as long as such potential Transferee is advised of the confidential nature of such information and agrees to be bound by a confidentiality agreement in form and substance satisfactory to the Company (it being understood that a confidentiality agreement consistent with the provisions hereof shall be satisfactory to the Company)) or (iv) if the prior written consent of the Board shall have been obtained. Nothing contained herein shall prevent the use (subject, to the extent possible, to a protective order) of Confidential Information in connection with the assertion or defense of any claim by or against the Company or any Shareholder. Notwithstanding the foregoing, each Shareholder or Affiliate of a Shareholder who engages principally in the business of effecting or recommending transactions, either as a principal or as agent on behalf of third parties, in, relating to or involving securities (including public securities of the Company or its subsidiaries) and including, without limitation, transactions in which such Shareholder or Affiliate may act as an investment advisor, an investment company, a broker or dealer in securities, an underwriter or placement agent of securities, a market maker, a specialist, an arbitrageur, a block positioner or a provider of securities research, may engage in such activities with respect to securities of the Company so long as, prior to engaging in any such activities (i) such Shareholder has established an effective "ethical wall" between individuals receiving Confidential Information and those individuals (including Affiliates) involved in effectuating trades or other transactions involving such securities of the Company or its subsidiaries, which "ethical wall" is designed to prevent any transfer, directly or indirectly, of Confidential Information and (ii) such purchases, sales, dealings or other transactions are made only in accordance with such "ethical wall" policies and procedures in accordance with applicable law, rule or regulation. (b) "Confidential Information" means any information concerning the Company and Persons which are or become its subsidiaries or the financial condition, business, operations or prospects of the Company and Persons which are or become its subsidiaries in the possession of or furnished to any Shareholder (including, without limitation by virtue of its present or former right to designate a director of the Company); provided that the term "Confidential Information" does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by a Shareholder or its partners, directors, officers, employees, agents, counsel, investment advisers or representatives (all such persons being collectively referred to as "Representatives") in violation of the Merger Agreement or this Agreement, (ii) is or was available to such Shareholder on a nonconfidential basis prior to its disclosure to such Shareholder or its Representatives by the Company or (iii) was or becomes available to such Shareholder on a non-confidential basis from a source other than the Company, provided that such source is or was (at the time of receipt of the relevant information) not, to the best of such Shareholder's knowledge, bound by a confidentiality agreement with (or other confidentiality obligation to) the Company or another Person. Section 6.2 Reports. The Company will furnish all the Equity Investors with the quarterly and annual financial reports that the Company is required to file with the Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act promptly after the filing thereof or, in the event the Company is not required to file such reports, quarterly and annual reports containing the same information as would be required in such reports on the date that such reports would otherwise be filed. Section 6.3 Limitations on Subsequent Registration. The Company shall not enter into any agreement with any holder or prospective holder of any securities of the Company (a) which conflicts with the provision of Article V, (b) that would allow such holder or prospective holder to include such securities in any registration filed pursuant to Section 5.1 or 5.2 hereof, unless under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the extent that the inclusion of such securities would not reduce the amount of the Registrable Securities of the Shareholders included therein or (c) on terms otherwise more favorable than this Agreement. Section 6.4 Limitation on Purchase of Equity Securities. Until the earlier to occur of (i) the seventh anniversary of the Closing Date or (ii) the date on which at least 40% of the outstanding Common Stock on a Fully Diluted basis of the Company is held by Persons other than the Shareholders (the "Trigger Date"), no Non-THL Shareholder shall acquire any Equity Securities except if (A) with respect to each Institutional Shareholder, such Shareholder may acquire Equity Securities in a purchase of Equity Securities pursuant to Section 4.3 or 4.4 hereof, (B) with respect to each Management Shareholder, such Shareholder may acquire Equity Securities either in a purchase of Equity Securities pursuant to Section 4.3 or 4.4 hereof or in any other transaction so long as THL has been notified at least five Business Days in advance and if given a reasonable opportunity to consult with such Shareholder prior to the purchase or (C) in a Transfer from any other Non-THL Shareholder which is otherwise permitted under the terms of Article 3 hereof. Section 6.5 Regulated Stockholders. (a) If a Regulated Stockholder determines that it has a Regulatory Problem, the Company agrees to take all such actions, subject to Applicable Law, as are reasonably requested by such Regulated Stockholder (i) to effectuate and facilitate any transfer by such Regulated Stockholder of any Equity Securities of the Company then held by such Regulated Stockholder to any Person designated by such Regulated Stockholder, (ii) to permit such Regulated Stockholder (or any Affiliate of such Regulated Stockholder) to exchange all or any portion of the voting Equity Securities then held by such Person on a share-for-share basis for shares of a class of non-voting Equity Securities of the Company, which non-voting Equity Securities, except that such new Equity Securities shall be non-voting and shall be convertible into voting Equity Securities on such terms as are requested by such Regulated Stockholder in light of regulatory considerations then prevailing, and (iii) to continue and preserve the respective allocation of the voting interests with respect to the Company provided for in this Agreement and with respect to such Regulated Stockholder's ownership of the Company's voting Equity Securities. Such actions may include, without limitation, (x) entering into such additional agreements as are reasonably requested by such Regulated Stockholder to permit any Person(s) designated by such Regulated Stockholder to exercise any voting power which is relinquished by such Regulated Stockholder upon any exchange of voting Equity Securities for non-voting Equity Securities of the Company, and (y) entering into such additional agreements, adopting such amendments to the charter documents of the Company and taking such additional actions as are reasonably requested by such Regulated Stockholder in order to effectuate the intent of the foregoing. (b) If a Regulated Stockholder has the right or opportunity to acquire any of the Company's Equity Securities from the Company, any Stockholder or any other Person (as the result of a preemptive offer, pro rata offer or otherwise), at such Regulated Stockholder's request, the Company will offer to sell (or if the Company is not the seller, to cooperate with the seller and such Regulated Stockholder to permit such seller to sell) such non-voting Equity Securities on the same terms as would have existed had such Regulated Stockholder acquired the Equity Securities so offered and immediately requested their exchange for non-voting Equity Securities pursuant to clause (a) above. (c) The Company agrees not to amend or waive the voting or other provisions of this Agreement or the Company's charter documents if such amendment or waiver would cause any Regulated Stockholder to have a Regulatory Problem; provided that any such Regulated Stockholder notifies the Company that it would have a Regulatory Problem promptly after it has notice of such amendment or waiver. ARTICLE VII MISCELLANEOUS Section 7.1 Entire Agreement. This Agreement, the Merger Agreement, the Subscription Agreement and the Equity Warrant Acquisition Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof. Section 7.2 Binding Effect; Benefit. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. Section 7.3 Assignability. (a) Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or any Shareholder; provided that any Person acquiring shares of Common Stock who is required by the terms of this Agreement to become a party hereto shall execute and deliver to the Company an agreement to be bound by this Agreement and shall thenceforth be a "Shareholder." (b) Any Permitted Transferee of a Management Shareholder who shall become a party hereto shall be deemed a "Management Shareholder." (c) Any Permitted Transferee of an Institutional Shareholder who shall become a party to this Agreement shall be deemed an "Institutional Shareholder." Section 7.4 Amendment; Waiver; Termination. (a) No provision of this Agreement may be waived except by an instrument in writing executed by the party against whom the waiver is to be effective. No provision of this Agreement may be amended or otherwise modified except by an instrument in writing executed by the Company with approval of the Board of Directors and holders of at least 50% of the shares of Common Stock held by the parties to this Agreement at the time of such proposed amendment or modification. Notwithstanding the foregoing or any other provision of this Agreement, THL may at any time, including after completion of a Qualifying Public Offering, and without any other action by any other party, effectuate an amendment to this Agreement to delete in its entirety Section 4.3(a); provided, however, that if THL causes such Section to be deleted, so long as the THL Entities own at least 10% of their Initial Ownership of shares of Common Stock, the THL Entities shall not purchase any New Securities from the Company unless the Company offers each Non-THL Shareholder the right to participate in the purchase of such New Securities in accordance with Section 4.3(a)(iii) as if it continued to be in effect. (b) In addition, any amendment or modification of any provision of this Agreement that would adversely affect THL may be effected only with the consent of THL. (c) In addition, any amendment or modification of any provision of this Agreement that would adversely affect any (i) Institutional Shareholder may be effected only with the consent of such Institutional Shareholders holding at least 66 2/3% of the shares of Common Stock held by such Institutional Shareholders or (ii) Management Shareholder may be effected only with the consent of the Management Shareholders (which must include the Primary Executives) holding at least 50% of the shares of Common Stock held by the Management Shareholders. (d) This Agreement shall terminate on the tenth anniversary of the date hereof unless earlier terminated. Section 7.5 Notices. (a) All notices and other communications given or made pursuant hereto or pursuant to any other agreement among the parties, unless otherwise specified, shall be in writing and shall be deemed to have been duly given and received when sent by fax (with confirmation in writing via first class U.S. mail) or delivered personally or on the third Business Day after being sent by registered or certified U.S. mail (postage prepaid, return receipt requested) to the parties at the fax number or address set forth below or at such other addresses as shall be furnished by the parties by like notice: (i) if to the Company, to: Fisher Scientific International, Inc. Liberty Lane Hampton, New Hampshire 03842 Attention: Todd M. DuChene, Esq. Fax: (603) 929-2703 (ii) if to a Management Shareholder who holds Equity Securities exclusively through the Rabbi Trust, to such Shareholder's attention at the following address: Mellon Bank 1 Mellon Bank Building 500 Grant Street Pittsburgh, Pennsylvania 15219 Fax: (412)236-4222 (iii) if to any other Management Shareholder, to such Shareholder's attention at the following address: Fisher Scientific International, Inc. Liberty Lane Hampton, New Hampshire 03842 Fax: (603) 929-2703 (iv) if to a THL Associate, to such Shareholder's attention at the following address: Thomas H. Lee Company 75 State Street Suite 2600 Boston, Massachusetts 02109 Fax: (617) 227-3514 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 919 Third Avenue New York, New York 10022 Attention: Eric L. Cochran, Esq. Fax: (212) 735-2000 (v) if to any other Shareholder, to such Shareholder at the address specified by such Shareholder on the signature pages of this Agreement. Any Shareholder may change its notice address by providing notice to the Company with a copy, in the case of the Non-THL Shareholders, to Thomas H. Lee Company 75 State Street Suite 2600 Boston, Massachusetts 02109 Attention: Anthony J. DiNovi Fax: (617) 227-3514 Any Person who becomes a Shareholder shall provide its address and fax number to the Company, which shall promptly provide such information to each Non-THL Shareholder. (b) Notices required to be given pursuant to Sections 5.1(a) and 5.1(b) and Section 5.2 by the Company shall be deemed given only if such notices are also be given telephonically and by fax to the following persons (or any other individual the respective entities may designate in writing to the Company to replace such person): (i) for the benefit of the THL Entities, to Anthony J. DiNovi (tel: 617-227-1050; fax: 617-227-3514), with a copy to Eric L. Cochran (tel: 212-735-2596; fax: 212-735-2000); (ii) for the benefit of the Management Shareholders, to Todd DuChene (tel: 603-926-2340; fax: 603-929-2703), with a copy to Eric Press (tel: 212-403-1314; fax: 212-403-2000); (iii) for the benefit of the DLJ Entities, to Thompson Dean (tel: 212-892-4460; fax: 212-892-7272) and Kirk Wortman (tel: 212-892-7041; fax: 212-892-7272), with a copy to George R. Bason, Jr. (tel: 212-450-4000; fax: 212-450-4800); (iv) for the benefit of Chase Equity, to Jonas Steinman (tel: 212-622-3028; fax: 212-622-3101), with a copy to John J. Suydam (tel: 212-408-2471; fax 212-408-2420); (v) for the benefit of the Merrill Lynch Entities, to Robert Tully (tel: 212-236-7304; fax: 212-236-7360) and Margaret Nelson (tel: 212-449-9812; fax: 212-449-9813), with a copy to Deborah Zajkowski (tel: 212-449-2973; fax: 212-449-1119). Section 7.6 Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement. Section 7.7 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Section 7.8 Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflicts of laws rules of such state. Section 7.9 Specific Performance. Each party hereto acknowledges that the remedies at law of the other parties for a breach or threatened breach of this Agreement would be inadequate and, in recognition of this fact, any party to this Agreement, without posting any bond, and in addition to all other remedies which may be available, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. Section 7.10 Consent to Jurisdiction; Expenses. (a) Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any Federal Court sitting in the State of Delaware or any Delaware State court sitting in Delaware, and each of the parties hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party by any method provided in Section 7.5 shall be deemed effective service of process on such party and consents to the personal jurisdiction of any Federal Court sitting in the State of Delaware, or any Delaware State court sitting in Delaware. (b) In any dispute arising under this Agreement among any of the parties hereto, the costs and expenses (including, without limitation, the reasonable fees and expenses of counsel) incurred by the prevailing party shall be paid by the party that does not prevail. Section 7.11 Representative. (a) Each THL Entities hereby designates and appoints (and each Permitted Transferee of each such THL Entities is hereby deemed to have so designated and appointed) each of Anthony J. DiNovi, Scott Sperling and Kent Weldon, as his attorney-in-fact with full power of substitution for each of them (the "THL Entities' Representative"), to serve as the representative of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the THL Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the THL Entities' Representative and are and will be entitled and authorized to give notices only to the THL Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the THL Entities' Representative may be chosen by a majority in interest of the THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to the Company and to each Non-THL Shareholder. (b) Each DLJ Entities hereby designates and appoints (and each Permitted Transferee of each such DLJ Entities' is hereby deemed to have so designated and appointed) DLJ Merchant Banking II, Inc., as his attorney-in-fact with full power of substitution for each of them (the "DLJ Entities' Representative"), to serve as the representative of each such person to perform all such acts (other than voting of shares of Common Stock) as are required, authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the DLJ Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the DLJ Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the DLJ Entities' Representative and are and will be entitled and authorized to give notices only to the DLJ Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the DLJ Entities' Shareholders, provided that notice thereof is given by the new DLJ Entities' Representative to the Company and to each other DLJ Entity Shareholder. (c) Each Merrill Lynch Entities hereby designates and appoints (and each Permitted Transferee of each such Merrill Lynch Entities is hereby deemed to have so designated and appointed) KECALP Inc., as his attorney-in-fact with full power of substitution for each of them (the "Merrill Lynch Entities Representative"), to serve as the representative of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the Merrill Lynch Entities Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any notice or other action taken by such person pursuant to this Agreement except for the Merrill Lynch Entities Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Merrill Lynch Entities Representative and are and will be entitled and authorized to give notices only to the Merrill Lynch Entities Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the Merrill Lynch Entities Representative may be chosen by a majority in interest of the Merrill Lynch Entities' Shareholders, provided that notice thereof is given by the new Merrill Lynch Entities Representative to the Company and to each other Merrill Lynch Entity Shareholder. (d) Each Management Shareholder hereby designates and appoints (and each Permitted Transferee of each such Management Shareholder is hereby deemed to have so designated and appointed) Paul M. Meister, as his attorney-in-fact with full power of substitution for each of them (the "Management Representative"), to serve as the representative of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the Management Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any notice or other action taken by such person pursuant to this Agreement except for the Management Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Management Representative and are and will be entitled and authorized to give notices only to the Management Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the Management Representative may be chosen by a majority in interest of the Management Shareholders, provided that notice thereof is given by the new Management Representative to the Company and to each other Management Shareholder. Section 7.12 Severability. If one or more provisions of this Agreement are held to be unenforceable to any extent under applicable law, such provision shall be interpreted as if it were written so as to be enforceable to the maximum possible extent so as to effectuate the parties' intent to the maximum possible extent, and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms to the maximum extent permitted by law. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. FISHER SCIENTIFIC INTERNATIONAL, INC. By: /s/ Todd M. DuChene ---------------------------------- Name: Todd M. DuChene Title: Vice President - General Counsel and Secretary THL Equity Shareholders: THOMAS H. LEE EQUITY FUND III, L.P. By: THL Equity Advisors III Limited Partnership, as General Partner By: THL Equity Trust III, as General Partner By: /s/ Anthony J. DiNovi ---------------------------------- Name: Anthony J. DiNovi Title: THOMAS H. LEE FOREIGN FUND III, L.P. By: THL Equity Advisors III Limited Partnership, as General Partner By: THL Equity Trust III, as General Partner By: /s/ Anthony J. DiNovi ---------------------------------- Name: Anthony J. DiNovi Title: THL FSI EQUITY INVESTORS, L.P. By: THL Equity Advisors III Limited Partnership, as General Partner By: THL Equity Trust III, as General Partner By: /s/ Anthony J. DiNovi ---------------------------------- Name: Anthony J. DiNovi Title: THL-CCI LIMITED PARTNERSHIP By: THL Investment Management Corp. as General Partner By: /s/ Anthony J. DiNovi ---------------------------------- Name: Anthony J. DiNovi Title: Management Shareholders: By: /s/ Paul M. Montrone ---------------------------------- Name: Paul M. Montrone By: /s/ Paul M. Meister ---------------------------------- Name: Paul M. Meister By: /s/ Anthony J. Fazzini ---------------------------------- Name: Anthony J. Fazzini Title: By: /s/ Steven Shulman ---------------------------------- Name: Steven Shulman By: /s/ Kevin P. Clark ---------------------------------- Name: Kevin P. Clark By: /s/ Paul F. Patek ---------------------------------- Name: Paul F. Patek By: /s/ Todd M. DuChene ---------------------------------- Name: Todd M. DuChene By: /s/ Michael S. Daigle ---------------------------------- Name: Michael S. Daigle By: /s/ Richard A. Lukianuk ---------------------------------- Name: Richard A. Lukianuk By: /s/ Donald C. Mueller ---------------------------------- Name: Donald C. Mueller By: /s/ A. Christian Muns ---------------------------------- Name: A. Christian Muns By: /s/ Jeffrey C. Yehle ---------------------------------- Name: Jeffrey C. Yehle DLJ Entities' Shareholders: DLJ MERCHANT BANKING PARTNERS II, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJ MERCHANT BANKING PARTNERS II-A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJ OFFSHORE PARTNERS II, C.V. By: DLJ Merchant Banking II, Inc., as advisory general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJ DIVERSIFIED PARTNERS, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJ DIVERSIFIED PARTNERS - A, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJ MILLENNIUM PARTNERS, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJ MILLENNIUM PARTNERS - A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJMB FUNDING II, INC. By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: UK INVESTMENT PLAN 1997 PARTNERS By: Donaldson, Lufkin & Jenrette Inc., as general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJ EAB PARTNERS, L.P. By: DLJ LBO Plans Management Corporation, as managing general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: DLJ FIRST ESC, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Thompson Dean ---------------------------------- Name: Thompson Dean Title: The address for each of the DLJ Entities listed above is: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, New York 10172 Fax: (212) 892-7272 CHASE EQUITY ASSOCIATES, L.P. By: Chase Capital Partners By: /s/ Michael Blott ---------------------------------- Name: Michael Blott Title: Executive Partner Address: 380 Madison Avenue New York, NY 10017 Merrill Lynch Entities: ML IBK POSITIONS, INC. By: /s/ James V. Caruso ---------------------------------- Name: James V. Caruso Title: Vice President KECALP INC. By: /s/ Robert Tully ---------------------------------- Name: Robert Tully Title: Vice President and Treasurer MERRILL LYNCH KECALP L.P. 1997 By: KECALP Inc., as general partner By: /s/ Robert Tully ---------------------------------- Name: Robert Tully Title: Vice President and Treasurer The address for each of the Merrill Lynch Entities listed above is: 255 Liberty Street New York, NY 10080 Fax: (212) 236-7584 Individual Shareholders: By: /s/ David V. Harkins ---------------------------------- Name: David V. Harkins By: /s/ Sheryll J. Harkins ---------------------------------- Name: The 1995 Harkins Gift Trust By: /s/ Thomas R. Shepherd ---------------------------------- Name: Thomas R. Shepherd Money Purchase Pension Plan By: /s/ Scott A. Schoen ---------------------------------- Name: Scott A. Schoen By: /s/ C. Hunter Boll ---------------------------------- Name: C. Hunter Boll By: /s/ Scott M. Sperling ---------------------------------- Name: Scott M. Sperling By: /s/ Sperling Family Limited Partnership ---------------------------------- Name: Sperling Family Limited Partnership By: /s/ Anthony J. DiNovi ---------------------------------- Name: Anthony J. DiNovi By: /s/ Thomas M. Hagerty ---------------------------------- Name: Thomas M. Hagerty By: /s/ Warren C. Smith, Jr. ---------------------------------- Name: Warren C. Smith,Jr. By: /s/ Seth W. Lawry ---------------------------------- Name: Seth W. Lawry By: /s/ Joseph J. Incandela ---------------------------------- Name: Joseph J. Incandela By: /s/ Kent R. Weldon ---------------------------------- Name: Kent R. Weldon By: /s/ Terrence M. Mullen ---------------------------------- Name: Terrence M. Mullen By: /s/ Todd M. Abbrecht ---------------------------------- Name: Todd M. Abbrecht By: /s/ Wendy L. Masler ---------------------------------- Name: Wendy L. Masler By: /s/ THL-CCI Limited Partnership ---------------------------------- Name: THL-CCI Limited Partnership By: Wendy L. Master Title: Vice President By: /s/ Andrew D. Flaster ---------------------------------- Name: Andrew D. Flaste By: /s/ Kristina A. Watts ---------------------------------- Name: First Trust Co. FBO Kristina A. Watts By: /s/ Charles Robins ---------------------------------- Name: Charles Robins By: /s/ James Westra ---------------------------------- Name: James Westra By: /s/ Charles A. Brizius ---------------------------------- Name: Charles A. Brizius Schedule I Certain Named Individual Shareholders of THL - -------------------------------------------- David V. Harkins The 1995 Harkins Gift Trust Thomas R. Shepherd Money Purchase Pension Plan (Keogh) Scott A. Schoen C. Hunter Boll Scott M. Sperling Sperling Family Limited Partnership Anthony J. DiNovi Thomas M. Hagerty Warren C. Smith, Jr. Seth W. Lawry Joseph J. Incandela Kent R. Weldon Terrence M. Mullen Todd M. Abbrecht Wendy L. Masler Andrew D. Flaster First Trust Co. FBO Kristina A. Watts Charles W. Robins James Westra Charles A. Brizius Schedule II THL Individuals - --------------- Thomas H. Lee Barbara F. Lee George R. Taylor Andrew T. Mulderry Anjan Mukherjee Jeffrey B. Kovach Charles S. Woo Paxman & Co. for Robert Schiff Lee 1988 Irrevocable Trust Paxman & Co. for Stephen Zachary Lee 1988 Irrevocable Trust THL Investment Management Corp. Schedule III Initial Classified Board of Directors - ------------------------------------- Class I Class II Class III Term Expiring 1998 Term Expiring 1999 Term Expiring 2000 - ------------------ ------------------ ------------------ Robert Day Mitchell Blutt [DLJ Nominee] Michael Dingman David Harkins Anthony J. DiNovi Kent Weldon Paul Meister Paul Montrone EX-6 7 SECOND AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER -------------------------------------------------------- SECOND AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of November 14, 1997, by and between FSI Merger Corp., a Delaware corporation ("FSI"), and Fisher Scientific International Inc., a Delaware corporation (the "Company"). WHEREAS, FSI and the Company have entered into that certain Agreement and Plan of Merger, dated as of August 7, 1997, as amended and restated as of September 11, 1997 (the "Original Agreement"); WHEREAS, FSI and the Company desire to amend and restate the Original Agreement in its entirety as set forth below; WHEREAS, the Merger (as hereinafter defined) and this Agreement require the vote of a majority of the issued and outstanding shares of the Common Shares (as hereinafter defined) for the approval thereof (the "Company Stockholder Approval"); WHEREAS, the respective Boards of Directors of FSI and the Company have approved the merger of FSI with and into the Company, as set forth below (the "Merger"), in accordance with the General Corporation Law of the State of Delaware (the "DGCL") and upon the terms and subject to the conditions set forth in this Agreement, holders of shares of common stock, par value $.01 per share (the "Common Shares") (including the associated preferred shares purchase rights (the "Rights") issued pursuant to the Rights Agreement, dated as of June 9, 1997, between the Company and ChaseMellon Shareholder Services, LLC, as Rights Agent (the "Rights Agreement"), which Rights, together with the Common Shares, are hereinafter referred to as the "Shares") issued and outstanding immediately prior to the Effective Time (as defined below) will be entitled, subject to the terms hereof and other than as set forth herein, the right either (A) to retain a portion of their Common Shares or (B) to receive cash in this Agreement; WHEREAS, the Board of Directors of the Company (the "Company Board") has, in light of and subject to the terms and conditions set forth herein, (i) determined that (A) the consideration to be paid for each Share in the Merger (as hereinafter defined) is fair to the stockholders of the Company, and (B) the Merger is otherwise in the best interests of the Company and its stockholders, and (ii) resolved to approve and adopt this Agreement and the transactions contemplated hereby and to recommend approval and adoption by the stockholders of the Company of this Agreement; WHEREAS, FSI and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger, and also to prescribe various conditions to the Merger; and WHEREAS, it is intended that the Merger be recorded as a recapitalization for financial reporting purposes. NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, FSI and the Company agree as follows: ARTICLE I THE MERGER SECTION 1.1 The Merger. Upon the terms and subject to the satisfaction or waiver of the conditions hereof, and in accordance with the applicable provisions of this Agreement and the DGCL, at the Effective Time FSI shall be merged with and into the Company. Following the Merger, the separate corporate existence of FSI shall cease and the Company shall continue as the surviving corporation (the "Surviving Corporation"). SECTION 1.2 Effective Time. As soon as practicable after the satisfaction or waiver of the conditions set forth in Article VI, the Company shall execute, in the manner required by the DGCL, and deliver to the Secretary of State of the State of Delaware a duly executed and verified certificate of merger, and the parties shall take such other and further actions as may be required by law to make the Merger effective. The time the Merger becomes effective in accordance with applicable law is referred to herein as the "Effective Time." SECTION 1.3 Effects of the Merger. The Merger shall have the effects set forth in the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the properties, rights, privileges, powers and franchises of the Company and FSI shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and FSI shall become the debts, liabilities and duties of the Surviving Corporation. SECTION 1.4 Certificate of Incorporation and By-Laws of the Surviving Corporation. (a) The Restated Certificate of Incorporation of the Company, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation of the Surviving Corporation until thereafter amended in accordance with the provisions thereof and hereof and applicable law. (b) The By-Laws of the Company in effect at the Effective Time shall be the By-Laws of the Surviving Corporation until amended, subject to the provisions of Section 5.06 of this Agreement, in accordance with the provisions thereof and applicable law. SECTION 1.5 Directors. Subject to applicable law, the directors of FSI immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal. SECTION 1.6 Officers. The officers of the Company immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal. ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS 2.1 Effect on Capital Stock. As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any Common Shares or any shares of capital stock of FSI: (a) Common Stock of FSI. All of the shares of Common Stock of FSI issued and outstanding immediately prior to the Effective Time shall be converted into a number of Common Shares following the Merger equal to 6,507,772 Common Shares less the Election Eligible Shares (as defined in Section 2.01(c)). (b) Cancellation of Treasury Stock. Each Common Share that is owned by the Company or by any wholly owned subsidiary of the Company shall automatically be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor. (c) Retention of Common Shares. Except as otherwise provided herein and subject to Sections 2.02 and 2.03, each Common Share issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger, be treated as follows: (i) for each Standard Common Share (as defined in 2.02(a)) with respect to which an election to retain such Common Share has been effectively made and not revoked in accordance with Section 2.02 (the "Potential Election Standard Shares") and which is to be retained in accordance with Section 2.03(b)(ii) or Section 2.03(c), the right to retain such fully paid and nonassessable Common Share (an "Election Standard Share"); (ii) for each Standard Common Share which was not a Potential Election Standard Share, but which is to be retained in accordance with Section 2.03(c)(ii), the right to retain such fully paid and non-assessable Common Share (a "Non-Election Standard Share"); (iii) for each Eligible Common Share (as defined in Section 2.02(a)) which is to be retained in accordance with Section 2.03(d)(i) or 2.03(d)(ii)(B), the right to retain such fully paid and nonassessable Common Share ("Election Eligible Shares" and, together with the Election Standard Shares and the Non-Election Standard Shares, the "Retained Shares"); (iv) for each Common Share (other than Dissenting Shares (as defined in Section 2.01(d)) and Retained Shares) the right to receive in cash from the Company following the Merger an amount equal to $48.25 (the "Cash Price" and, with the Retained Shares, the "Merger Consideration") and each such Common Share shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of a Certificate representing any such Common Shares shall, to the extent such Certificate represents such shares, cease to have any rights with respect thereto, except the right to receive the Cash Price applicable thereto, upon surrender of such Certificate in accordance with Section 2.05. (d) Dissenting Shares. Notwithstanding Section 2.01(c), Common Shares outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of the Merger or consented thereto in writing and who has demanded appraisal for such Common Shares in accordance with the DGCL prior to the Effective Time ("Dissenting Shares") shall not be converted into a right to receive the Merger Consideration, unless such holder fails to perfect or withdraws or otherwise loses such holder's right to appraisal. If after the Effective Time such holder fails to perfect or withdraws or loses such holder's right to appraisal, such Common Shares shall be treated as if they had been converted as of the Effective Time into a right to receive the Merger Consideration. The Company shall give FSI prompt notice of any demands received by the Company for appraisal of Common Shares, and FSI shall have the right to participate in all negotiations and proceedings with respect to such demands. The Company shall not, except with the prior written consent of FSI, make any payment with respect to, or settle or offer to settle, any such demands. SECTION 2.2 Common Share Elections. (a) Each person who, on or prior to the Election Date (as defined in Section 2.02(b) below), is a record holder of Standard Common Shares will be entitled to make an unconditional election on or prior to such Election Date to express a desire to retain such shares, on the basis hereinafter set forth and subject to Section 2.03 hereof. In addition, each person who, on or prior to the Election Date, is a record holder of Eligible Common Shares will be entitled to make an unconditional election on or prior to such Election Date to express a desire to retain such shares, on the basis hereinafter set forth and subject to Section 2.03 hereof. (i) "Standard Common Shares" are Common Shares other than "Eligible Option Shares". (ii) "Eligible Option Shares" are Common Shares which are issued to employees listed on a schedule to be agreed upon by FSI and the Company (an "Eligible Employee") upon exercise of Options (as defined in Section 2.04) following the execution of this Agreement and which continue to be held by such Eligible Employees on the Election Date. (iii) "Eligible Common Shares" are Eligible Option Shares and Common Shares which were held by Eligible Employees upon the execution of this Agreement and which continue to be held by such Eligible Employees on the Election Date. (b) Subject to any required clearance by the Securities and Exchange Commission (the "SEC"), the Company shall prepare and mail a form of election (the "Form of Election"), which form shall be subject to the reasonable approval of FSI, with the Proxy Statement to the record holders of Common Shares as of the record date for the Special Meeting (as hereinafter defined), which Form of Election shall be used by each record holder of Common Shares who elects to express a desire to retain Standard Common Shares or Eligible Common Shares held by such holder. To the extent an Eligible Employee holds a Common Share which is both a Standard Common Share and an Eligible Common Share, such Eligible Employee may elect to retain such Common Share first as a Standard Common Share and, to the extent not so retained, second as an Eligible Common Share. The Company will use its best efforts to make the Form of Election available to all persons who become holders of Common Shares during the period between such record date and the Election Date, with a copy of the Proxy Statement. Any such holder's election shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time on the second business day prior to the date of the Special Meeting (the "Election Date"), a Form of Election properly completed and signed and accompanied by Certificates for the Common Shares to which such Form of Election relates, duly endorsed in blank or otherwise in a form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such certificates as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States, provided such certificates are in fact delivered to the Exchange Agent within three NYSE trading days after the date of execution of such guarantee of delivery). (c) Any Form of Election may be revoked by the holder submitting it to the Exchange Agent only by written notice received by the Exchange Agent (i) prior to 5:00 p.m., New York City time on the Election Date or (ii) after the Election Date, if (and to the extent that) the Exchange Agent is legally required to permit revocations and the Effective Time shall not have occurred prior to such date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by FSI and the Company that the Merger has been abandoned. If a Form of Election is revoked, the Certificate or Certificates (or guarantees of delivery, as appropriate) for the Common Shares to which such Form of Election relates shall be promptly returned to the stockholder submitting the same to the Exchange Agent. (d) The determination of the Exchange Agent shall be binding with respect to whether or not elections have been properly made or revoked pursuant to this Section 2.02 and when elections and revocations were received by it. If the Exchange Agent determines that any election to retain Common Shares was not properly made, such shares shall be treated by the Exchange Agent as shares for which no election was received, and such shares shall be retained or converted in accordance with Sections 2.01 and 2.03. The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 2.03, and any such computation shall be conclusive and binding on the holders of Common Shares. The Exchange Agent may, with the mutual agreement of FSI and the Company, make such rules as are consistent with this Section 2.02 for the implementation of the elections provided for herein as shall be necessary or desirable fully to effect such elections. SECTION 2.3 Proration. (a) Notwithstanding anything in this Agreement to the contrary, the "Standard Retained Share Number" shall equal 746,114 Common Shares. (b) If the number of Potential Election Standard Shares is greater than the Standard Retained Share Number, then each Potential Election Standard Share shall be retained as an Election Standard Share in accordance with the terms of Section 2.01(c)(i) or receive cash in accordance with the terms of Section 2.01(c)(iv) in the following manner: (i) A proration factor (the "Non-Cash Proration Factor") shall be determined by dividing the Standard Retained Share Number by the total number of Potential Election Standard Shares. (ii) The number of Potential Election Standard Shares covered by each election to be retained as Election Standard Shares shall be determined by multiplying the Non-Cash Proration Factor by the total number of Potential Election Standard Shares covered by such election, rounded down to the nearest whole number. (iii) All Potential Election Standard Shares, other than those shares which are retained in accordance with Section 2.03(b)(ii), shall be converted into cash in accordance with the terms of Section 2.01(c)(iv). (c) If the number of Potential Election Standard Shares is less than or equal to the Standard Retained Share Number, then each Potential Election Standard Share shall be retained as an Election Standard Share in accordance with the terms of Section 2.01(c)(i) and each Standard Common Share other than a Potential Election Standard Share or a Dissenting Share (a "Potential Cash Share") shall be retained as a Non-Election Standard Share in accordance with Section 2.01(c)(ii) or converted into cash in accordance with the terms of Section 2.01(c)(iv) in the following manner: (i) A proration factor (the "Cash Proration Factor") shall be determined by dividing (x) the difference between the Standard Retained Share Number and the number of Potential Election Standard Shares, by (y) the number of Potential Cash Shares. (ii) The number of Potential Cash Shares held by each stockholder to be retained as Non-Election Standard Shares in accordance with Section 2.01(c)(ii) shall be determined by multiplying the Cash Proration Factor by the total number of Potential Cash Shares held by such stockholder, rounded down to the nearest whole number. (iii) All Potential Cash Shares, other than those shares retained as Non-Election Standard Shares, shall be converted to cash in accordance with Section 2.01(c)(iv). (d) Eligible Common Shares shall be treated as follows: (i) To the extent the number of Eligible Common Shares with respect to which an election to retain Common Shares has been effectively made and not revoked in accordance with Section 2.02 (the "Potential Election Eligible Shares") is less than or equal to 310,881 Common Shares (the "Eligible Retained Share Number"), such Potential Election Eligible Shares shall be retained in accordance with Section 2.01(c)(iii). (ii) To the extent the number of Potential Election Eligible Shares is greater than the Eligible Retained Share Number, the following shall apply: (A) A proration factor (the "Eligible Proration Factor") shall be determined by dividing the Eligible Retained Share Number by the number of Potential Election Eligible Shares. (B) The number of Potential Election Eligible Shares to be retained by a holder in accordance with Section 2.01(c)(iii) shall be determined by multiplying the Eligible Proration Factor by the total number of Potential Election Eligible Shares held by such holder, rounded down to the nearest whole number. (C) All Potential Election Eligible Shares, other than those shares retained pursuant to Section 2.03(d)(ii)(B), shall be converted into cash in accordance with Section 2.01(c)(iv). SECTION 2.4 Options; Stock Plans. (a) Subject to Section 2.04(c) below, immediately prior to the Effective Time, each holder of a then-outstanding employee stock option, whether or not fully exercisable, to purchase Common Shares (an "Option") granted under any stock option or similar plan of the Company (together with the Restricted Unit Plan and the Equity Option Program) (as such terms are hereinafter defined), the "Stock Plans") will be entitled to receive in settlement of such Option a cash payment from the Company equal to the product of (i) the total number of Common Shares previously subject to such Option and (ii) the excess of the Cash Price over the exercise price per Common Share subject to such Option, subject to any required withholding of taxes. If necessary or appropriate, the Company will, upon the request of FSI, use reasonable efforts to obtain the written acknowledgment of each employee holding an Option that the payment of the amount of cash referred to above will satisfy in full the Company's obligation to such employee pursuant to such Option and take such other action as is necessary to effect the provisions of this Section 2.04. (b) FSI agrees that each holder of Restricted Units (as such term is defined in the Restricted Unit Plan for Non-Employee Directors of Fisher Scientific International Inc. (the "Restricted Unit Plan"), shall be entitled to receive at the Effective Time, and shall pay or cause to be paid to each such holder promptly following the Effective Time, (i) an amount in cash equal to the product of (x) the total number of Restricted Units in such holder's Restricted Unit account (regardless of whether such Restricted Units have vested in accordance with the Restricted Unit Plan) and (y) the Cash Price, and (ii) an amount in cash equal to the Cash Dividend Equivalents (as such term is defined in the Restricted Unit Plan) (and amounts equivalent to interest thereon) in such holder's Restricted Unit account. If necessary or appropriate, the Company will, upon the request of FSI, use reasonable efforts to obtain the written acknowledgment of each director holding Restricted Units that the payment of the amounts referred to above will satisfy in full the Company's obligation to such director pursuant to the Restricted Unit Plan and take such other action as is necessary to effect the provisions of this Section 2.04. (c) Notwithstanding anything to the contrary set forth in Section 2.04(a) above, certain employees of the Company shall receive, with respect to the Options listed on Schedule 2.04(c) hereto (each, an "Electing Option"), in exchange for the cancellation of such Electing Option, (A) the right (the "Deferred Share Right") to receive (in accordance with the provisions of Section 2.04(d) below) the number of Common Shares determined by dividing (X) the product of (1) the number of Common Shares subject to such Option and (2) the excess, if any, of the Cash Price over the per share exercise price of such Option, by (Y) the Cash Price (each a "Converted Option Common Share"), and (B) a single lump sum cash payment in lieu of any fractional shares that would have been issued. FSI and the Company shall agree upon the employees to receive Deferred Share Rights and the number of Converted Option Common Shares to be distributed to such employees upon their exercise of such Deferred ShareRights. Notwithstanding anything herein to the contrary, the Deferred Share Rights may not entitle the holders to receive more than 909,392 Converted Option Common Shares pursuant to this Section 2.04(c). (d) Each holder of a Deferred Share Right shall have the right to receive the number of Converted Option Common Shares set forth on Section 2.04(c) upon his or her termination of employment for any reason. Until the distribution of Converted Option Common Shares following such termination of employment, the holders of Deferred Share Rights will have no rights as stockholders of the Surviving Corporation. Converted Option Common Shares so distributed in satisfaction of the Deferred Share Rights shall be subject to, and the distribution of such Converted Option Common Shares to the holders of Deferred Share Rights shall be conditional on, the execution by the holder of the Deferred Share Rights of a stockholders' agreement with investors in the Surviving Corporation acceptable to the Company and FSI. The number of Converted Option Common Shares (not in excess of 909,392) sufficient to satisfy the Surviving Corporation's obligations with respect to all outstanding Deferred Share Rights shall be deposited, as soon as practicable following the Merger, in a grantor trust in such form as shall be agreed by FSI and the Company. SECTION 2.5 Payment for Common Shares. (a) From and after the Effective Time, such bank or trust company as shall be mutually acceptable to FSI and the Company shall act as exchange agent (the "Exchange Agent"). At or prior to the Effective Time, FSI shall deposit, or FSI shall otherwise take all steps necessary to cause to be deposited, with the Exchange Agent in an account (the "Exchange Fund") the aggregate Merger Consideration to which holders of Common Shares shall be entitled at the Effective Time pursuant to Section 2.01(c). (b) Promptly after the Effective Time, FSI shall cause the Exchange Agent to mail to each record holder of certificates (the "Certificates") that immediately prior to the Effective Time represented Common Shares a form of letter of transmittal which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent and instructions for use in surrendering such Certificates and receiving the Merger Consideration in respect thereof. (c) In effecting the payment of the Cash Price in respect of Common Shares represented by Certificates entitled to payment of the Cash Price pursuant to Section 2.01(c)(iv) (the "Cashed Shares"), upon the surrender of each such Certificate, the Exchange Agent shall pay the holder of such Certificate the Cash Price multiplied by the number of Cashed Shares, in consideration therefor. Upon such payment (and the exchange, if any, of Certificates formerly representing Common Shares for certificates representing Retained Shares) such Certificate shall forthwith be cancelled. (d) In effecting the exchange of Retained Shares in respect of Common Shares represented by Certificates which, at the Effective Time, shall become Retained Shares, upon surrender of each such Certificate, the Exchange Agent shall deliver to the holder of such Certificate a certificate representing that number of whole Retained Shares which such holder has the right to receive pursuant to the provisions of Section 2.01(c), and cash in lieu of fractional Retained Shares. Upon such exchange (and any payment of the Cash Price for Cashed Shares), such Certificate so surrendered shall forthwith be canceled. (e) Until surrendered in accordance with paragraphs (c) or (d) above, each such Certificate (other than Certificates representing Common Shares held by FSI or any of its affiliates, in the treasury of the Company or by any wholly owned subsidiary of the Company or Dissenting Shares) shall represent solely the right to receive the aggregate Merger Consideration relating thereto. No interest or dividends shall be paid or accrued on the Merger Consideration. If the Merger Consideration (or any portion thereof) is to be delivered to any person other than the person in whose name the Certificate formerly representing Common Shares surrendered therefor is registered, it shall be a condition to such right to receive such Merger Consideration that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person surrendering such Common Shares shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. (f) Distributions with Respect to Unexchanged Shares. No dividends or other distributions with respect to Common Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the Common Shares represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.05(g) until the surrender of such Certificates in accordance with this Section 2.05. Subject to the effect of applicable laws, following surrender of any such Certificate, there shall be paid to the holder of the certificate representing whole Common Shares issued in exchange therefor, without interest, at the time of such surrender, the amount of any cash payable in lieu of a fractional Common Share to which such holder is entitled pursuant to Section 2.5(g). (g) No Fractional Shares. (i) No certificates or scrip representing factional Retained Shares shall be issued upon the surrender for exchange of Certificates, and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a stockholder of the Surviving Corporation. (ii) As promptly as practicable following the Effective Time, the Exchange Agent shall determine the excess of (x) the number of Retained Shares delivered to the Exchange Agent by FSI pursuant to Section 2.05(a) over (y) the aggregate number of whole Retained Shares to be distributed to holders of the Certificates (such excess being herein called the "Excess Shares"). As soon as practicable after the Effective Time, the Exchange Agent, as agent for the holders of the Certificates, shall sell the Excess Shares at then prevailing prices on the New York Stock Exchange, Inc. (the "NYSE"), all in the manner provided in paragraph (iii) of this Section 2.05(g). (iii) The sale of the Excess Shares by the Exchange Agent shall be executed on the NYSE through one or more member firms of the NYSE and shall be executed in round lots to the extent practicable. FSI shall bear the cost of all related changes and fees of the Exchange Agent, commissions, transfer taxes and other out-of-pocket transaction costs. Until the proceeds of such sale or sales have been distributed to the holders of the Certificates, the Exchange Agent shall hold such proceeds in trust for the holders of the Certificates (the "Common Shares Trust"). The Exchange Agent shall determine the portion of the Common Shares Trust to which each holder of a certificate shall be entitled, if any, by multiplying the amount of the aggregate proceeds comprising the Common Shares Trust by a fraction, the numerator of which is the amount of the fractional share interests to which such holder of a Certificate is entitled and the denominator of which is the aggregate amount of fractional share interests to which all holders of the Certificates are entitled. (iv) As soon as practicable after the determination of the amount of cash to be paid to holders of Certificates in lieu of any fractional share interests, the Exchange Agent shall make available such amounts, without interest, to such holders of Certificates who have surrendered their Certificates in accordance with this Section 2.05. (h) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent shall deliver to the Surviving Corporation all cash, Certificates and other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of a Certificate formerly representing a Common Share may surrender such Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar laws) receive in consideration therefor the aggregate Merger Consideration relating thereto, without any interest or dividends thereon. (i) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Common Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates formerly representing Common Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be surrendered and cancelled in return for the payment of the aggregate Merger Consideration relating thereto, as provided in this Article II. (j) No Liability. None of FSI, the Company or Exchange Agent shall be liable to any person in respect of any Retained Shares (or dividends or distributions with respect thereto) or cash from the Exchange Fund or the Common Shares Trust delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Certificates shall not have been surrendered prior to seven years after the Effective Time (or immediately prior to such earlier date on which any Retained Shares, any cash in lieu of fractional Retained Shares or any dividends or distributions with respect to Common Shares in respect of such Certificate would otherwise escheat to or become the property of any Governmental Entity) any such shares, cash, dividends or distributions in respect of such Certificate shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to FSI as follows: SECTION 3.1 Organization and Qualification; Subsidiaries. The Company and each of its Significant Subsidiaries (as hereinafter defined) is a corporation duly organized, validly existing and in good standing under the laws of its state or jurisdiction of incorporation and has all requisite corporate power and corporate authority to own, lease and operate its properties and to carry on its business as now being conducted and is in good standing as a foreign corporation in each jurisdiction where the properties owned, leased or operated, or the business conducted, by it require such qualification and where failure to be in good standing or to so qualify would have a Material Adverse Effect on the Company. The term "Material Adverse Effect on the Company," as used in this Agreement, means any change in or effect on the business, financial condition, results of operations or reasonably foreseeable prospects of the Company or any of its subsidiaries that would be materially adverse to the Company and its subsidiaries taken as a whole. The Company has heretofore made available to FSI a complete and correct copy of its Restated Certificate of Incorporation and By-Laws. A "Significant Subsidiary" of any person means any subsidiary or person that constitutes a significant subsidiary of such person within the meaning of Rule 1-02(v) of Regulation S-X. SECTION 3.2 Capitalization; Subsidiaries. The authorized capital stock of the Company consists of 50,000,000 Common Shares and 15,000,000 shares of preferred stock, par value $.01 per share ("Preferred Stock"), of which 500,000 shares are designated Series A Junior Participating Preferred Stock, par value $.01 per share ("Junior Preferred Stock"). As of the close of business on August 6, 1997, 20,325,546 Common Shares were issued and outstanding, all of which are entitled to vote on this Agreement, and no Common Shares were held in treasury. The Company has no shares of Preferred Stock issued and outstanding. As of August 6, 1997, except for (i) 3,632,195 Common Shares reserved for issuance pursuant to outstanding Options and rights granted under the Stock Plans, (ii) 500,000 shares of Junior Preferred Stock reserved for issuance upon exercise of the Rights and (iii) up to 192,270 Options issuable pursuant to the Company's Equity Option Program (the "Equity Option Program"), there are not now, and at the Effective Time there will not be, any existing options, warrants, calls, subscriptions, or other rights, or other agreements or commitments, obligating the Company to issue, transfer or sell any shares of capital stock of the Company or any of its subsidiaries. All issued and outstanding Common Shares are validly issued, fully paid, nonassessable and free of preemptive rights. All of the outstanding shares of capital stock of each of the Company's Significant Subsidiaries have been validly issued and are fully paid and non-assessable and, except as set forth on Section 3.02 of the disclosure schedule delivered to FSI by the Company on the date hereof (the "Company Disclosure Schedule"), are owned by either the Company or another of its Significant Subsidiaries free and clear of all liens, charges, claims or encumbrances. There are no outstanding options, warrants, calls, subscriptions, or other rights, or other agreements or commitments, obligating any Significant Subsidiary of the Company to issue, transfer or sell any shares of its capital stock. SECTION 3.3 Authority Relative to this Agreement. (a) The Company has the requisite corporate power and authority to execute and deliver this Agreement and, except for the approval of this Agreement by the shareholders of the Company, to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Company Board and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions so contemplated (other than the approval of this Agreement by the shareholders of the Company, to the extent required by applicable law). This Agreement has been duly and validly executed and delivered by the Company, and, assuming this Agreement constitutes a valid and binding obligation of FSI, this Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. (b) Except as set forth in Section 3.03 of the Company Disclosure Schedule, the execution and delivery of this Agreement does not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of consent, termination, purchase, cancellation or acceleration of any obligation or to loss of any property, rights or benefits under, or result in the imposition of any additional obligation under, or result in the creation of any Lien upon any of the properties or assets of the Company or any of its subsidiaries under, (i) the organizational documents of the Company or any of its subsidiaries, (ii) any contract, instrument, permit, concession, franchise, license, loan or credit agreement, note, bond, mortgage, indenture, lease or other property agreement, partnership or joint venture agreement or other legally binding agreement, whether oral or written (a "Contract"), applicable to the Company or any of its subsidiaries or their respective properties or assets or (iii) subject to the governmental filings and other matters referred to in the following paragraph, any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its subsidiaries or their respective properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, violations, defaults, rights or Liens that individually or in the aggregate would not have a Material Adverse Effect. (c) Other than in connection with, or in compliance with, the provisions of the DGCL with respect to the transactions contemplated hereby, the Exchange Act, the securities laws of the various states and the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), no authorization, consent or approval of, or filing with, any Governmental Entity (as hereinafter defined) is necessary for the consummation by the Company of the transactions contemplated by this Agreement other than authorizations, consents and approvals the failure to obtain, or filings the failure to make, which would not, in the aggregate, have a Material Adverse Effect on the Company. As used in this Agreement, the term "Governmental Entity" means any government or subdivision thereof, domestic, foreign or supranational or any administrative, governmental or regulatory authority, agency, commission, tribunal or body, domestic, foreign or supranational. SECTION 3.4 No Violation. Neither the execution or delivery of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby will (i) constitute a breach or violation of any provision of the Restated Certificate of Incorporation or By-Laws of the Company or (ii) except as set forth on Section 3.04 of the Company Disclosure Schedule, constitute a breach, violation or default (or any event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in the creation of any lien or encumbrance upon any of the properties or assets of the Company or any of its subsidiaries under, any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument to which the Company or any of its subsidiaries is a party or by which they or any of their respective properties or assets are bound, other than breaches, violations, defaults, terminations, accelerations or creation of liens and encumbrances which, in the aggregate, would not have a Material Adverse Effect on the Company. SECTION 3.5 SEC Reports and Financial Statements. Since January 1, 1995, the Company has filed all forms, reports and documents ("SEC Reports") with the SEC required to be filed by it pursuant to the federal securities laws and the SEC rules and regulations thereunder. Copies of all such SEC Reports have been made available to FSI by the Company. None of such SEC Reports (as of their respective filing dates) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The audited and unaudited consolidated financial statements of the Company included in the SEC Reports have been prepared in accordance with generally accepted accounting principles applied on a consistent basis (except as otherwise stated in such financial statements, including the related notes) and fairly present the financial position of the Company and its consolidated subsidiaries as of the dates thereof and the results of their operations and changes in financial position for the periods then ended, subject, in the case of the unaudited financial statements, to year-end audit adjustments. Except as set forth in the SEC Reports and except as disclosed in Section 3.05 of the Company Disclosure Schedule, at the date of the most recent audited financial statements of the Company included in the SEC Reports, neither the Company nor any of its subsidiaries had, and since such date neither the Company nor any of such subsidiaries has incurred, any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) which, individually or in the aggregate, would be required to be disclosed in a balance sheet prepared in accordance with generally accepted accounted principles and would reasonably be expected to have a Material Adverse Effect with respect to the Company except liabilities incurred in the ordinary and usual course of business and consistent with past practice and liabilities incurred in connection with the transactions contemplated by this Agreement. SECTION 3.6 Compliance with Applicable Laws. Except as set forth on Section 3.06 of the Company Disclosure Schedule and except for matters relating to Environmental Laws (which matters are covered in Section 3.13), (i) the Company and its subsidiaries hold all material permits, licenses and approvals of all Governmental Entities and (ii) the business operations of the Company have been conducted in compliance with all laws, ordinances and regulations of any Governmental Entity, except for possible violations which would not, individually or in the aggregate, have a Material Adverse Effect on the Company. SECTION 3.7 Change of Control. Except as set forth on Section 3.07 of the Company Disclosure Schedule or as provided in Section 2.04, the transactions contemplated by this Agreement will not constitute a "change of control" under, require the consent from or the giving of notice to a third party pursuant to, permit a third party to terminate or accelerate vesting or repurchase rights, or create any other detriment under the terms, conditions or provisions of any note, bond, mortgage, indenture, license, lease, contract, agreement or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which any of them or any of their properties or assets may be bound, except where the adverse consequences resulting from such change of control or where the failure to obtain such consents or provide such notices would not, individually or in the aggregate, have a Material Adverse Effect on the Company. SECTION 3.8 Litigation. Except as set forth on Section 3.08 of the Company Disclosure Schedule, there is no suit, claim, action, proceeding or investigation pending or, to the knowledge of the Company, threatened, against the Company or any of its subsidiaries, individually or in the aggregate, which would have a Material Adverse Effect on the Company and its subsidiaries or could prevent or materially delay the consummation of the transactions contemplated by this Agreement. Except as disclosed in the SEC Reports filed prior to the date of this Agreement, neither the Company nor any of its subsidiaries is subject to any outstanding order, writ, injunction or decree which, individually or in the aggregate, would have a Material Adverse Effect on the Company or could prevent or materially delay the consummation of the transactions contemplated hereby. SECTION 3.9 Information. None of the information supplied by the Company in writing (other than projections of future financial performance) specifically for inclusion or incorporation by reference in (i) Form S-4 or (ii) any other document to be filed with the SEC or any other Governmental Entity in connection with the transactions contemplated by this Agreement (the "Other Filings") will, at the respective times filed with the SEC or other Governmental Entity and, in addition, in the case of the Proxy Statement, at the date it or any amendment or supplement is mailed to stockholders, at the time of the Special Meeting and at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, no representation is made by the Company with respect to (i) any forward-looking information which may have been supplied by the Company, whether or not included by FSI in the Form S-4 or (ii) statements made in any of the foregoing documents based upon information supplied by FSI. SECTION 3.10 Certain Approvals. The Company Board has taken any and all necessary and appropriate action to render inapplicable to the Merger and the transactions contemplated by this Agreement the provisions of Section 203 of the DGCL. SECTION 3.11 Employee Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Schedule includes a complete list of all material employee benefit plans and programs providing benefits to any employee or former employee of the Company and its subsidiaries sponsored or maintained by the Company or any of its subsidiaries or to which the Company or any of its subsidiaries contributes or is obligated to contribute ("Plans"). Without limiting the generality of the foregoing, the term "Plans" includes all employee welfare benefit plans within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder ("ERISA"), and all employee pension benefit plans within the meaning of Section 3(2) of ERISA. (b) With respect to each Plan, the Company has made available to FSI a true, correct and complete copy of: (i) all plan documents, benefit schedules, trust agreements, and insurance contracts and other funding vehicles; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description, if any; (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the United States Internal Revenue Service (the "IRS"), if any. (c) The Company and each of its subsidiaries has complied, and is now in compliance, in all material respects with all provisions of ERISA, the Internal Revenue Code of 1986, as amended, including the Treasury Regulations thereunder (the "Code") and all laws and regulations applicable to the Plans. With respect to each Plan that is intended to be a "qualified plan" within the meaning of Section 401(a) of the Code ("Qualified Plans"), the IRS has issued a favorable determination letter. (d) All contributions required to be made to any Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Plan, for any period through the date hereof have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected in the financial statements of the Company included in the SEC Reports to the extent required under generally accepted accounting principles. (e) Except as set forth on Section 3.11(e) of the Company Disclosure Schedule, no Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. Without limiting the generality of the foregoing, no Plan is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Multiemployer Plan") or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA and which is subject to Title IV of ERISA (a "Multiple Employer Plan"). (f) There does not now exist, nor do any circumstances exist that could result in, any liability under (i) Title IV of ERISA, (ii) section 302 of ERISA, (iii) sections 412 and 4971 of the Code, (iv) the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, or (v) corresponding or similar provisions of foreign laws or regulations, other than a liability that arises solely out of, or relates solely to, the Plans, that would be a liability of the Company or any of its subsidiaries following the Effective Time. Without limiting the generality of the foregoing, none of the Company, its subsidiaries nor any ERISA Affiliate of the Company or any of its subsidiaries has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA. An "ERISA Affiliate" means any entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the Company or any of its subsidiaries, or that is a member of the same "controlled group" as the Company or any of its subsidiaries, pursuant to Section 4001(a)(14) of ERISA. SECTION 3.12 Taxes. (a) The Company, and each of its subsidiaries and each affiliated, combined, consolidated, unitary or aggregate group of which the Company or any of its subsidiaries is a member (a "Company Affiliated Group") has timely filed all federal, state, local and foreign income Tax Returns (as hereinafter defined) required to be filed by it, and all other material Tax Returns required to be filed by it, and has paid or caused to be paid all Taxes (as hereinafter defined) required to be paid in respect of the periods covered by such returns and has made adequate provision in the Company's financial statements for payment of all Taxes that have not been paid, whether or not shown as due and payable on any Tax Return in respect of all taxable periods or portions thereof ending on or before the date hereof, except where the failure to so file or pay or make adequate provision would not, individually or in the aggregate, have a Material Adverse Effect on the Company. There are no outstanding agreements, waivers or requests for waivers extending the statutory period of limitation applicable to any Tax Return of the Company, any of its subsidiaries or any Company Affiliated Group. Except as set forth on Section 3.12 of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries (i) has been a member of a group filing consolidated returns for federal income tax purposes (except for the group of which the Company is the common parent), or (ii) is a party to or has any liability pursuant to a Tax sharing or Tax indemnity agreement or any other agreement of a similar nature that remains in effect. (b) Except to the extent of amounts for which indemnification has been provided to the Company pursuant to Article X of the Purchase Agreement among the Company and Fisons plc and Fisons U.S. Inc. and Fisons Corporation and Fisons U.S. Investment Holdings, Inc., dated August 29, 1995, the Company, each of its subsidiaries and each Company Affiliated Group have complied in all material respects with all rules and regulations relating to the withholding of Taxes except to the extent any such failure to comply would not, individually or in the aggregate, have a Material Adverse Effect on the Company. (c) For purposes of this Agreement, the term "Taxes" means all taxes, charges, fees, levies or other assessments, including, without limitation, income, gross receipts, excise, property, sales, transfer, license, payroll, withholding, capital stock and franchise taxes, imposed by the United States or any state, local or foreign government or subdivision or agency thereof, including any interest, penalties or additions thereto. For purposes of this Agreement, the term "Tax Return" means any report, return or other information or document required to be supplied to a taxing authority in connection with Taxes. SECTION 3.13 Environmental Matters. (a) Except as set forth on Section 3.13 of the Company Disclosure Schedule, the Company and its subsidiaries have been and are in compliance with all applicable Environmental Laws as in effect on the date hereof, except for such violations and defaults as would not, individually or in the aggregate, have a Material Adverse Effect on the Company. (b) Except as set forth on Section 3.13 of the Company Disclosure Schedule, the Company and its subsidiaries possess all Environmental Permits required for the operation of the Business pursuant to Environmental Laws as in effect on the date hereof, all such Environmental Permits are in effect, there are no pending or to the best knowledge of the Company threatened proceedings to revoke such Environmental Permits and the Company and its subsidiaries are, to the best knowledge of the Company, in compliance with all terms and conditions thereof, except for such failures to possess or comply with Environmental Permits as would not, individually or in the aggregate, have a Material Adverse Effect on the Company. (c) Except as set forth on Section 3.13 of the Company Disclosure Schedule, and except for matters which would not, individually or in the aggregate, have a Material Adverse Effect on the Company, neither the Company nor any subsidiary has received any written notification that the Company or any subsidiary as a result of any of the current or past operations of the Business, or any property currently or formerly owned or leased in connection with the Business, is or may be the subject of any proceeding, investigation, claim, lawsuit or order by any Governmental Entity or other person as to whether (i) any Remedial Action is or may be needed to respond to a Release or threat of Release into the environment of Hazardous Substances as defined under Environmental Laws as in effect on or prior to the date hereof; (ii) any Environmental Liabilities and Costs imposed by, under or pursuant to Environmental Laws as in effect on or prior to the date hereof shall be sought, or proceeding commenced, related to or arising from the current or past operations of the Business; or (iii) the Company or any subsidiary is or may be a "potentially responsible party" for a Remedial Action, pursuant to any Environmental Law as in effect on or prior to the date hereof, for the costs of investigating or remediating Releases or threatened Releases into the environment of Hazardous Substances, whether or not such Release or threatened Release has occurred or is occurring at properties currently or formerly owned or operated by the Company and its subsidiaries; (d) Except as set forth on Section 3.13 of the Company Disclosure Schedule, and except for the ACO's and Environmental Permits, none of the Company and its subsidiaries has entered into any written agreement with any Governmental Entity by which the Company or any subsidiary has assumed responsibility, either directly or as a guarantor or surety, for the remediation of any condition arising from or relating to a Release of Hazardous Substances as defined under Environmental Laws as in effect on or prior to the date hereof into the environment in connection with the Business, including for cost recovery with respect to such Releases or threatened Releases; (e) Except as set forth on Section 3.13 of the Company Disclosure Schedule, and except for the matters covered by the ACO's, there is not now and has not been at any time in the past, a Release in connection with the current or former conduct of the Business of substances that would constitute Hazardous Substances as regulated under Environmental Laws as in effect on or prior to the date hereof for which the Company or any subsidiary is required or is reasonably likely to be required to perform a Remedial Action pursuant to Environmental Laws as currently in effect, or will incur Environmental Liabilities and costs that would, individually or in the aggregate, have a Material Adverse Effect on the Company. (f) For purposes of this Section: (i) "ACO" means either of the Administrative Consent orders relating to the Fair Lawn, New Jersey or the Bridgewater, New Jersey properties executed by the New Jersey Department of Environmental Protection ("NJDEP") on August 29, 1985; such ACOs were entered into by the NJDEP and the Fisher Scientific division of Allied-Signal Inc. and titled In the Matter of Fisher Scientific Division and the Administrative Consent order executive by the NJDEP on July 31, 1986 and entered into by the NJDEP and Allied-Signal Inc. titled In the Matter of Allied-Signal Inc., ECRA Case #'s 85820, 85821, 85822, 85823, 85824, 85825, 85826, 86049, 86103. (ii) "Business" means the current and former businesses of the Company and its subsidiaries including, but not limited to, businesses or subsidiaries that have been previously sold by the Company, its subsidiaries or any predecessors thereto. (iii) "Environmental Laws" means all Laws relating to the protection of the environment, or to any emission, discharge, generation, processing, storage, holding, abatement, existence, Release, threatened Release or transportation of any Hazardous Substances, including, but not limited to, (i) CERCLA, the Resource Conservation and Recovery Act, the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, as amended (the "TSCA"), property transfer statutes or requirements and (ii) all other requirements pertaining to reporting, licensing, permitting, investigation or remediation of emissions, discharges, Releases or threatened Releases of Hazardous Substances into the air, surface water, groundwater or land, or relating to the manufacture, processing, distribution, use, sale, treatment, receipt, storage, disposal, transport or handling of Hazardous Substances. (iv) "Environmental Liabilities and Costs" means all damages, natural resource damages, claims, losses, expenses, costs, obligations, and liabilities (collectively, "Losses"), whether direct or indirect, known or unknown, current or potential, past, present or future, imposed by, under or pursuant to Environmental Laws, including, but not limited to, all Losses related to Remedial Actions, and all fees, capital costs, disbursements, penalties, fines and expenses of counsel, experts, contractors, personnel and consultants based on, arising out of or otherwise in respect of (i) the Company, any subsidiary (including predecessors and former subsidiaries) or property owned, used or leased by the Company or any subsidiary in respect of the Business at any time; (ii) conditions existing on, under, around or above any such property; and (iii) expenditures necessary to cause any such property or the Company or any subsidiary to be in compliance with requirements of Environmental Laws. (v) "Environmental Permits" means any federal, state, provincial or local permit, license, registration, consent, order, administrative consent order, certificate, approval or other authorization necessary for the conduct of the Business as currently conducted under any Environmental Law. (vi) "Hazardous Substances" means any substance that (a) is defined, listed or identified or otherwise regulated as a "hazardous waste," "hazardous material" or "hazardous substance" "toxic substance," "hazardous air pollution," "polluted," or "contaminated" or words of similar meaning and regulatory effect under CERCLA, TSCA or the Resource Conservation and Recovery Act or any other Environmental Law or analogous state law (including, without limitation, radioactive substances, polycholorinated- biphenyls, petroleum and petroleum derivatives and products) or (b) requires investigation, removal or remediation under applicable Environmental Law. (vii) "ISRA" means the Industrial Site Recovery Act of New Jersey, N.J.S.A. 13:1K-6 et seq. (viii) "Laws" means all (A) constitutions, treaties, statutes, laws (including, but not limited to, the common law), rules, regulations, ordinances or codes of any Governmental Entity, (B) Environmental Permits, and (C) orders, decisions, injunctions, judgments, awards and decrees of any Governmental Entity. (ix) "Release" means as defined in CERCLA or the Resource Conservation and Recovery Act, without limiting its application to violations or alleged violations of those statutes, but not including any discharge, spill or emission that is the subject of, and in compliance with an Environmental Permit. (x) "Remedial Action" means all actions required by Governmental Entity pursuant to Environmental Law or otherwise taken as necessary to comply with Environmental Law to (i) clean up, remove, treat or in any other way remediate any Hazardous Substances; (ii) prevent the release of Hazardous Substances so that they do not migrate or endanger or threaten to endanger public health or welfare or the environment; or (iii) perform studies, investigations or monitoring in respect of any such matter. SECTION 3.14 Absence of Certain Changes. Except as disclosed in the SEC Reports filed prior to the date of this Agreement or as disclosed in announcements or other information attached in Section 3.14 of the Company Disclosure Schedule, concerning future performance of the Company, since March 31, 1997, (i) the Company has conducted its business only in the ordinary course consistent with past practice and (ii) there has not been any Material Adverse Effect on the Company. SECTION 3.15 Rights Agreement. The Company and the Company Board have authorized all necessary action to amend the Rights Agreement (without redeeming the Rights) so that none of the execution or delivery of this Agreement, the making of the Offer, the acquisition of Shares pursuant to the Offer or the consummation of the Merger will (i) cause any Rights issued pursuant to the Rights Agreement to become exercisable or to separate from the stock certificates to which they are attached, (ii) cause FSI or any of their Affiliates to be an Acquiring Person (as each such term is defined in the Rights Agreement) or (iii) trigger other provisions of the Rights Agreement, including giving rise to a Distribution Date (as such term is defined in the Rights Agreement), and such amendment shall be in full force and effect from and after the date hereof. SECTION 3.16 Brokers. Except for the engagement of the Investment Bankers (as defined in Section 3.17), none of the Company, any of its subsidiaries, or any of their respective officers, directors or employees has employed any broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement. SECTION 3.17 Opinion of Investment Bankers. The Company has received the written opinion of each of Lazard Freres & Co. LLC and Salomon Brothers Inc (the "Investment Bankers") to the effect that, as of September 11, 1997, the consideration to be received by the holders of Common Shares pursuant to the Merger is fair to the Company's stockholders from a financial point of view. SECTION 3.18 Material Contracts. The Company has provided or made available to FSI (i) true and complete copies of all written material contracts and agreements ("Material Contracts"), or (ii) with respect to such Material Contracts that have not been reduced to writing, a written description thereof, each of which is listed on Section 3.18 of the Company Disclosure Schedule. Neither the Company nor any of its subsidiaries is, or has received any notice or has any knowledge that any other party is, in default in any respect under any such Material Contract, except for those defaults which would not reasonably be likely, either individually or in the aggregate, to have a Material Adverse Effect with respect to the Company; and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a material default. SECTION 3.19 Board Recommendation. The Company Board, at a meeting duly called and held, has (a) determined that this Agreement and the transactions contemplated hereby, taken together, are advisable and in the best interests of the Company and its stockholders, and (b) subject to the other provisions hereof, resolved to recommend that the holders of the Common Shares approve this Agreement and the transactions contemplated herby, including the Merger. SECTION 3.20 Required Company Vote. The Company Stockholder Approval, being the affirmative vote of a majority of the Common Shares, is the only vote of the holders of any class or series of the Company's securities necessary to approve this Agreement, the Merger and the other transactions contemplated hereby. SECTION 3.21 Intellectual Property. The Company and its subsidiaries own or have the valid right to use all material Intellectual Property used in or necessary to the business, free and clear of all liens, claims, and encumbrances and, except for the License Agreements set forth on Section 3.21(a) of the Company Disclosure Schedule, free and clear of all material licenses to third parties. As employed herein, the term "Intellectual Property" shall mean: (i) registered and unregistered trademarks, service marks, slogans, trade names, logos and trade dress (collectively, and together with the good will associated with each, "Trademarks"); (ii) patents, patent applications and invention disclosures (collectively, "Patents"); (iii) registered and unregistered copyrights, including, but not limited to, copyrights in software and databases (collectively, "Copyrights"); (iv) software programs and databases (together, "Software"); (v) unpatented or unpatentable methods, devices, technology, trade secrets, proprietary information and know-how (collectively, "Technology"); and (vi) agreements pursuant to which the Company or a subsidiary has obtained or granted the right to use any of the foregoing (collectively, or other agreements to which the Company or any subsidiary is a party relating to the development, acquisition, use, sale or licensure of Intellectual Property "License Agreements"). SECTION 3.22 Related Party Transactions. Except as set forth in Section 3.23 of the Disclosure Schedule hereto, no director, officer, partner, "affiliate" or "associate" (as such terms are defined in Rule 12b-2 under the Exchange Act) of the Company or any of its subsidiaries (or, with respect to clause (i) of this sentence, to the knowledge of the Company, its employees) (i) has borrowed any monies from or has outstanding any indebtedness or other similar obligations to the Company or any of its subsidiaries; (ii) owns any direct or indirect interest of any kind in, or is a director, officer, employee, partner, affiliate or associate of, or consultant or lender to, or borrower from, or has the right to participate in the management, operations or profits of, any person or entity which is (1) a competitor, supplier, customer, distributor, lessor, tenant, creditor or debtor of the Company or any of its subsidiaries, (2) engaged in a business related to the business of the Company or any of its subsidiaries, (3) participating in any transaction to which the Company or any of its subsidiaries is a party or (iii) is otherwise a party to any contract, arrangement or understanding with the Company or any of its subsidiaries. SECTION 3.23 State Takeover Statutes. The Company Board has taken such action so that no statute, takeover statute or similar statute or regulation of the State of Delaware (and, to the knowledge of the Company after due inquiry, of any other state or jurisdiction) applies to this Agreement, the Merger, or any of the other transactions contemplated hereby. Except for the Rights Agreement and except as set forth in Section 3.23 of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries has any rights plan, preferred stock or similar arrangement which have any of the aforementioned consequences in respect of the transactions contemplated hereby. SECTION 3.24 Labor Relations and Employment. (a) Except as set forth on Section 3.24(a) of the Company Disclosure Schedule and except for matters which would not (other than in the case of clause (iii) or (iv) of this sentence) result in a Material Adverse Effect, (i) there is no labor strike, dispute, slowdown, stoppage or lockout actually pending, or, to the best knowledge of the Company, threatened against the Company or any of its subsidiaries, and during the past three years there has not been any such action; (ii) to the best knowledge of the Company, no union claims to represent the employees of the Company or any of its subsidiaries; (iii) neither the Company nor any of its subsidiaries is a party to or bound by any collective bargaining or similar agreement with any labor organization, or work rules or practices agreed to with any labor organization or employee association applicable to employees of the Company or any of its subsidiaries; (iv) none of the employees of the Company or any of its subsidiaries is represented by any labor organization and the Company does not have any knowledge of any current union organizing activities among the employees of the Company or any of its subsidiaries, nor does any question concerning representation exist concerning such employees; (v) the Company and its subsidiaries are, and have at all times been, in material compliance with all applicable laws respecting employment and employment practices, terms and conditions of employment, wages, hours of work and occupational safety and health, and are not engaged in any unfair labor practices as defined in the National Labor Relations Act or other applicable law, ordinance or regulation; (vi) there is no unfair labor practice charge or complaint against the Company or any of its subsidiaries pending or, to the knowledge of the Company, threatened before the National Labor Relations Board or any similar state or foreign agency; (vii) there is no grievance arising out of any collective bargaining agreement or other grievance procedure; (viii) no charges with respect to or relating to the Company or any of its subsidiaries are pending before the Equal Employment Opportunity Commission or any other agency responsible for the prevention of unlawful employment practices; (ix) neither the Company nor any of its subsidiaries has received notice of the intent of any federal, state, local or foreign agency responsible for the enforcement of labor or employment laws to conduct an investigation with respect to or relating to the Company or any of its subsidiaries and no such investigation is in progress; and (x) there are no complaints, lawsuits or other proceedings pending or to the best knowledge of the Company threatened in any forum by or on behalf of any present or former employee of the Company or any of its subsidiaries alleging breach of any express or implied contract of employment, any law or regulation governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with the employment relationship. (b) To the best knowledge of the Company, since the enactment of the Worker Adjustment and Retraining Notification ("WARN") Act, there has not been (i) a "plant closing" (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its subsidiaries; or (ii) a "mass layoff" (as defined in the WARN Act) affecting any site of employment or facility of the Company or any of its subsidiaries; nor has the Company or any of its subsidiaries been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state or local law. Except as set forth in Section 3.24(b) of the Company Disclosure Schedule, to the best knowledge of the Company, none of the employees of the Company or any of its subsidiaries has suffered an "employment loss" (as defined in the WARN Act) since three months prior to the date of this Agreement. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF FSI FSI represents and warrants to the Company as follows: SECTION 4.1 Organization and Qualification. FSI is a corporation duly organized, validly existing and in good standing under the laws of its state or jurisdiction of incorporation and is in good standing as a foreign corporation in each other jurisdiction where the properties owned, leased or operated, or the business conducted, by it require such qualification and where failure to be in good standing or to so qualify would have a Material Adverse Effect on FSI. The term "Material Adverse Effect on FSI", as used in this Agreement, means any change in or effect on the business, financial condition, results of operations or reasonably forseeable prospects of FSI or any of its subsidiaries that would be materially adverse to FSI. SECTION 4.2 Authority Relative to this Agreement. (a) FSI has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of FSI and no other corporate proceedings on the part of FSI are necessary to authorize this Agreement or to consummate the transactions so contemplated. This Agreement has been duly and validly executed and delivered by FSI and, assuming this Agreement constitutes a valid and binding obligation of the Company, this Agreement constitutes a valid and binding agreement of FSI, enforceable against FSI in accordance with its terms. (b) Other than in connection with, or in compliance with, the provisions of the DGCL with respect to the transactions contemplated hereby, the Exchange Act, the securities laws of the various states and the HSR Act, no authorization, consent or approval of, or filing with, any Governmental Entity is necessary for the consummation by the Company of the transactions contemplated by this Agreement other than authorizations, consents and approvals the failure to obtain, or filings the failure to make, which would not, in the aggregate, have a Material Adverse Effect on FSI. SECTION 4.3 No Violation. Neither the execution or delivery of this Agreement by FSI nor the consummation by FSI of the transactions contemplated hereby will (i) constitute a breach or violation of any provision of the Certificate of Incorporation or By-Laws of FSI or (ii) constitute a breach, violation or default (or any event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in the creation of any lien or encumbrance upon any of the properties or assets of FSI under, any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument to which FSI is a party or by which it or any of its properties or assets are bound, other than breaches, violations, defaults, terminations, accelerations or creation of liens and encumbrances which, in the aggregate would not have a Material Adverse Effect on FSI. SECTION 4.4 Information. None of the information supplied by FSI in writing (other than projections of future financial performance) specifically for inclusion or incorporation by reference in (i) the Form S-4 or (ii) the Other Filings will, at the respective times filed with the SEC or other Governmental Entity and, in addition, in the case of the Proxy Statement, at the date it or any amendment or supplement is mailed to stockholders, at the time of the Special Meeting and at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, no representation is made by FSI with respect to statements made in any of the foregoing documents based upon information supplied by the Company. SECTION 4.5 Financing. Schedule 6.02(e) of the disclosure schedule delivered by FSI and attached hereto (the "FSI Disclosure Schedule") sets forth true and complete copies of written documentation from third parties which provides for financing in amounts sufficient to consummate the transactions contemplated hereby as contemplated by Section 6.02(e). SECTION 4.6 Delaware Law. FSI was not immediately prior to the execution of this Agreement, an "interested stockholder" within the meaning of Section 203 of the DGCL. SECTION 4.7 Information. FSI represents and warrants that, as of the date hereof, neither FSI, its representatives nor affiliates has formed an actual belief that any of the representations or warranties of the Company are untrue or incorrect in any material respect. ARTICLE V COVENANTS SECTION 5.1 Conduct of Business of the Company. Except as contemplated by this Agreement or as expressly agreed to in writing by FSI, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of its subsidiaries to, conduct its operations according to its ordinary and usual course of business and consistent with past practice and use its and their respective reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, advertisers, distributors and others having business dealings with them and to preserve goodwill. Without limiting the generality of the foregoing, and except as (x) otherwise expressly provided in this Agreement, (y) required by law, or (z) set forth on Section 5.01 of the Company Disclosure Schedule, prior to the Effective Time, the Company will not, and will cause its subsidiaries not to, without the consent of FSI (which consent shall not be unreasonably withheld): (i) except with respect to annual bonuses made in the ordinary course of business consistent with past practice, adopt or amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any director, officer or employee of the Company or any of its subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of the Company or any of its subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of the Company or any of its subsidiaries (in each case, except with respect to employees and directors in the ordinary course of business consistent with past practice); (ii) incur any indebtedness for borrowed money in excess of $1,000,000, other than indebtedness under existing lines of credit drawn to fund working capital (defined as accounts receivable plus inventory minus accounts payable) up to $25 million; (iii) expend funds for capital expenditures in excess of $1,000,000; (iv) sell, lease, license, mortgage or otherwise encumber or subject to any lien or otherwise dispose of any of its properties or assets other than immaterial properties or assets (or immaterial portions of properties or assets), except in the ordinary course of business consistent with past practice; (v) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock (except (A) as contemplated by the Rights Agreement or the Restricted Unit Plan and (B) for dividends paid by subsidiaries to the Company with respect to capital stock and (C) for regular quarterly dividends in an amount not to exceed the lesser of $0.02 per share per quarter and the amount paid per share in the immediately preceding quarter, (y) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (vi) authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock or the capital stock of any of its subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) (other than issuances upon exercise of Options or pursuant to the Stock Plans or the Rights Agreement); (vii) amend its Restated Certificate of Incorporation, By-Laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any material subsidiary of the Company; (viii) make or agree to make any acquisition of assets which is material to the Company and its subsidiaries, taken as a whole, except for (x) purchases of inventory in the ordinary course of business or (y) pursuant to purchase orders entered into in the ordinary course of business which do not call for payments in excess of $10,000,000 per annum; or (ix) settle or compromise any shareholder derivative suits arising out of the transactions contemplated hereby or any other litigation (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, individually in an amount in excess of $1,000,000, other than in consultation and cooperation with FSI, and, with respect to any such settlement, with the prior written consent of FSI. SECTION 5.2 Access to Information. From the date of this Agreement until the Effective Time, the Company will, and will cause its subsidiaries, and each of their respective officers, directors, employees, counsel, advisors and representatives (collectively, the "Company Representatives") to, give FSI and their respective officers, employees, counsel, advisors, representatives (collectively, the "FSI Representatives") and representatives of financing sources identified by FSI reasonable access, upon reasonable notice and during normal business hours, to the offices and other facilities and to the books and records of the Company and its subsidiaries and will cause the Company Representatives and the Company's subsidiaries to furnish FSI and the FSI Representatives and representatives of financing sources identified by FSI with such financial and operating data and such other information with respect to the business and operations of the Company and its subsidiaries as FSI and representatives of financing sources identified by FSI may from time to time reasonably request. FSI agrees that any information furnished pursuant to this Section 5.02 will be subject to the provisions of the letter agreement dated June 23, 1997 between Thomas H. Lee Company ("THL") and the Company (the "Confidentiality Agreement"). SECTION 5.3 Efforts. (a) Each of the Company and FSI shall, and the Company shall cause each of its subsidiaries to, make all necessary filings with Governmental Entities as promptly as practicable in order to facilitate prompt consummation of the transactions contemplated by this Agreement. In addition, each of FSI and the Company will use its reasonable best efforts (including, without limitation, payment of any required fees) and will cooperate fully with each other to (i) comply as promptly as practicable with all governmental requirements applicable to the transactions contemplated by this Agreement, including the making of all filings necessary or proper under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, but not limited to, cooperation in the preparation and filing of the Form S-4 and any actions or filings related thereto, the Proxy Statement or other foreign filings and any amendments to any thereof and (ii) obtain promptly all consents, waivers, approvals, authorizations or permits of, or registrations or filings with or notifications to (any of the foregoing being a "Consent"), any Governmental Entity necessary for the consummation of the transactions contemplated by this Agreement (except for such Consents the failure of which to obtain would not prevent or materially delay the consummation of the Merger). Subject to the Confidentiality Agreement, FSI and the Company shall furnish to one and other such necessary information and reasonable assistance as FSI or the Company may reasonably request in connection with the foregoing. (b) Without limiting Section 5.03(a), FSI and the Company shall each (i) promptly make or cause to be made the filings required of such party under the HSR Act with respect to the Merger; (ii) use its best efforts to avoid the entry of, or to have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the consummation of the Merger, including without limitation defending through litigation on the merits any claim asserted in any court by any party; and (iii) take any and all steps which, in such party's judgment, are commercially reasonable to avoid or eliminate each and every impediment under any antitrust, competition, or trade regulation law that may be asserted by any Governmental Entity with respect to the Merger so as to enable consummation thereof to occur as soon as reasonably possible. Each party hereto shall promptly notify the other parties of any communication to that party from any Governmental Entity and permit the other parties to review in advance any proposed communication to any Governmental Entity. FSI and the Company shall not (and shall cause their respective affiliates and representatives not to) agree to participate in any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement, each of the parties hereto will coordinate and cooperate fully with the other parties hereto in exchanging such information and providing such assistance as such other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods under the HSR Act or in connection with other Consents. Each of the Company and FSI agrees to respond promptly to and comply fully with any request for additional information or documents under the HSR Act. Subject to the Confidentiality Agreement, the Company will provide FSI, and FSI will provide the Company, with copies of all correspondence, filings or communications (or memoranda setting forth the substance thereof) between such party or any of its representatives, on the one hand, and any Governmental Entity or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated hereby. (c) FSI shall use commercially reasonable efforts to cause the financing necessary for satisfaction of the condition in Section 6.02(e) to be obtained on the terms set forth in the commitment letters attached to Schedule 6.02(e) of the FSI Disclosure Schedule; provided, however, that FSI shall be entitled to (i) enter into commitments for equity and debt financing with other nationally recognized financial institutions, which commitments will have substantially the same terms as those set forth in the commitment letters and which commitments may be substituted for such commitment letters and (ii) modify the capital structure set forth in such commitment letters so long as the total committed common equity equals at least $350 million (including Common Shares to be retained), the aggregate Cash Price paid to all stockholders of the Company is no less than otherwise would have been paid in accordance with this Agreement and such modified financing is no less certain than that set forth in such commitment letter. SECTION 5.4 Public Announcements. The Company, on the one hand, and FSI, on the other hand, agree to consult promptly with each other prior to issuing any press release or otherwise making any public statement with respect to the Merger and the other transactions contemplated hereby, agree to provide to the other party for review a copy of any such press release or statement, and shall not issue any such press release or make any such public statement prior to such consultation and review, unless required by applicable law or any listing agreement with a securities exchange. SECTION 5.5 Employee Benefit Arrangements. (a) FSI agrees that the Company will honor, and, from and after the Effective Time, FSI will cause the Surviving Corporation to honor, in accordance with their respective terms as in effect on the date hereof, the employment, severance and bonus agreements and arrangements to which the Company is a party which are set forth on Sections 3.07 and 5.05 of the Company Disclosure Schedule. (b) FSI agrees that for a period of two years following the Effective Time, the Surviving Corporation shall continue the (i) compensation (including bonus and incentive awards) programs and plans and (ii) employee benefit and welfare plans, programs, contracts, agreements and policies (including insurance and pension plans), fringe benefits and vacation policies which are currently provided by the Company; provided that notwithstanding anything in this Agreement to the contrary the Surviving Corporation shall not be required to maintain any individual plan or program so long as the benefit plan and agreements maintained by the Surviving Corporation are, in the aggregate, not materially less favorable than those provided by the Company immediately prior to the date of this Agreement. SECTION 5.6 Indemnification; Directors' and Officers' Insurance. (a) From and after the Effective Time, FSI shall, and shall cause the Surviving Corporation to, indemnify, defend and hold harmless the present and former officers, directors, employees and agents of the Company and its subsidiaries (the "Indemnified Parties") against all losses, claims, damages, expenses or liabilities arising out of or related to actions or omissions or alleged actions or omissions occurring at or prior to the Effective Time (i) to the full extent permitted by Delaware law or, if the protections afforded thereby to an Indemnified Person are greater, (ii) to the same extent and on the same terms and conditions (including with respect to advancement of expenses) provided for in the Company's Restated Certificate of Incorporation and By-Laws and agreements in effect at the date hereof (to the extent consistent with applicable law), which provisions will survive the Merger and continue in full force and effect after the Effective Time. Without limiting the foregoing, (i) FSI shall, and shall cause the Surviving Corporation to, periodically advance expenses (including attorney's fees) as incurred by an Indemnified Person with respect to the foregoing to the full extent permitted under applicable law, and (ii) any determination required to be made with respect to whether an Indemnified Party shall be entitled to indemnification shall, if requested by such Indemnified Party, be made by independent legal counsel selected by the Surviving Corporation and reasonably satisfactory to such Indemnified Party. (b) FSI agrees that the Company, and, from and after the Effective Time, the Surviving Corporation, shall cause to be maintained in effect for not less than six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company; provided that the Surviving Corporation may substitute therefor other policies of at least the same coverage amounts and which contain terms and conditions not less advantageous to the beneficiaries of the current policies and provided that such substitution shall not result in any gaps or lapses in coverage with respect to matters occurring prior to the Effective Time; and provided, further, that the Surviving Corporation shall not be required to pay an annual premium in excess of 250% of the last annual premium paid by the Company prior to the date hereof and if the Surviving Corporation is unable to obtain the insurance required by this Section 5.06(c) it shall obtain as much comparable insurance as possible for an annual premium equal to such maximum amount. (c) This Section 5.06 shall survive the consummation of the Merger at the Effective Time, is intended to benefit the Company, the Surviving Corporation and the Indemnified Parties, shall be binding on all successors and assigns of FSI and the Surviving Corporation, and shall be enforceable by the Indemnified Parties. SECTION 5.7 Notification of Certain Matters. FSI and the Company shall promptly notify each other of (i) the occurrence or non-occurrence of any fact or event which would be reasonably likely (A) to cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect at any time from the date hereof to the Effective Time or (B) to cause any covenant, condition or agreement under this Agreement not to be complied with or satisfied and (ii) any failure of the Company, or FSI, as the case may be, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that no such notification shall affect the representations or warranties of any party or the conditions to the obligations of any party hereunder. Each of the Company and FSI shall give prompt notice to the other parties hereof of any notice or other communication from any third party alleging that the consent of such third party is or may be required in connection with the transactions contemplated by this Agreement. SECTION 5.8 Rights Agreement. Subject to the provisions of Section 5.15, the Company covenants and agrees that it will not (i) redeem the Rights, (ii) amend the Rights Agreement or (iii) take any action which would allow any Person (as defined in the Rights Agreement) other than FSI to acquire beneficial ownership of 15% or more of the Common Shares without causing a Distribution Date (as such term is defined in the Rights Agreement) to occur. Notwithstanding the foregoing, the Company may take any of the actions described in the preceding sentence, if the Company Board determines in good faith, after consultation with counsel, that failing to take such action could reasonably be expected to result in a breach of fiduciary duties of the Company Board. SECTION 5.9 State Takeover Laws. The Company shall, upon the request of FSI, take all reasonable steps to assist in any challenge by FSI to the validity or applicability to the transactions contemplated by this Agreement, including the Merger, of any state takeover law. SECTION 5.10 No Solicitation. (a) From and after the date hereof until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct their respective officers, directors, employees, agents or other representatives (including, without limitation, any investment banker, attorney or accountant retained by the Company or its subsidiaries) (the "Representatives") not to, (i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving 20% or more of the assets or any securities of, any merger consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its subsidiaries (such transactions being referred to herein as "Acquisition Transactions"), (ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain a proposal for an Acquisition Transaction, (iii) agree to or endorse any proposal for an Acquisition Transaction, or (iv) authorize or permit the Company's or any of its affiliates' Representatives to take any such action; provided, however, that nothing in this Agreement shall prohibit the Company Board from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its subsidiaries pursuant to a merger, consolidation, share exchange, tender offer or other similar transaction, but only to the extent that independent legal counsel (who may be the Company's regularly engaged outside legal counsel) advises the Company Board in good faith that failure to furnish such information or engage in such discussions or negotiations with such person or entity would be a breach of the fiduciary duties of the Company Board, provided, that prior to taking such action, the Company Board notifies FSI of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.14 if the Company Board, after consultation with and based upon the advice of independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that such action is necessary for the Company board to comply with its fiduciary duties to stockholders under applicable law, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and provided further, that the Company's or the Board of Directors' exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement. (b) The Company will promptly notify FSI of the receipt of any proposal for an Acquisition Transaction, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify FSI of any change to or modification of such proposal for an Acquisition Transaction and the terms and conditions thereof. (c) Subject to the provisions of subsection (b), the Company shall immediately cease and cause its affiliates and its and their Representatives to cease any and all existing activities, discussions or negotiations with any parties (other than FSI) conducted heretofore with respect to any of the foregoing, and shall use its reasonable best efforts to cause any such parties in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party (other than FSI) or in the possession of any Representative of any such party. SECTION 5.11 Affiliate Letters. Prior to the Closing Date, the Company shall deliver to FSI a letter identifying all persons who are, at the time this Agreement is submitted for approval to the stockholders of the Company, "affiliates" of the Company for purposes of Rule 145 under the Securities Act. The Company shall use its reasonable best efforts to cause each such person to deliver to FSI on or prior to the Closing Date a written agreement in a form reasonably satisfactory to FSI and the Company. SECTION 5.12 ISRA Requirements. Prior to the Closing Date, the Company shall be responsible for compliance with the requirements of ISRA applicable to this transaction relating to obtaining the necessary approvals for each property subject to ISRA that will allow this transaction to be completed. The Company shall consult with FSI with respect to its ISRA filings and strategy, including allowing FSI to comment on such filing where time permits, and shall provide copies of all correspondence to and from the DEP with respect to ISRA compliance. SECTION 5.13 Reports. The Company shall provide FSI with monthly financial statements, broken out by business segment, no later than the fifth business day following the end of each calendar month following the date of this Agreement. SECTION 5.14 Stockholders' Meeting. (a) The Company, acting through the Company Board, shall, in accordance with applicable law: (i) duly call, give notice of, convene and hold a special meeting of its stockholders (the "Special Meeting") as soon as practicable following the execution of this Agreement for the purpose of considering and taking action upon this Agreement; (ii) prepare and file with the SEC a preliminary proxy statement relating to this Agreement, and use its reasonable efforts (A) to obtain and furnish the information required to be included by the SEC in a definitive proxy statement (the "Proxy Statement") and Form S-4 in which the Proxy Statement will be included (collectively with the Proxy Statement, the "Form S-4") and, after consultation with FSI, to respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause the Proxy Statement to be mailed to its stockholders and (B) to obtain the necessary approvals of the Merger and this Agreement by its stockholders; and (iii) subject to the fiduciary duties of the Company Board as provided in Section 5.10, include in the Proxy Statement the recommendation of the Company Board that stockholders of the Company vote in favor of the approval of this Agreement. (b) The Company represents that the Form S-4 will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by FSI in writing for inclusion in the Form S-4. Each of the Company, on the one hand, and FSI, on the other hand, agree promptly to correct any information provided by either of them for use in the Form S-4 if and to the extent that it shall have become false or misleading, and the Company further agrees to take all steps necessary to cause the Form S-4 as so corrected to be filed with the SEC and to be disseminated to the holders of Shares, in each case, as and to the extent required by applicable federal securities laws. ARTICLE VI CONDITIONS TO CONSUMMATION OF THE MERGER SECTION 6.1 Conditions. The respective obligations of FSI and the Company to consummate the Merger are subject to the satisfaction, at or before the Effective Time, of each of the following conditions: (a) Stockholder Approval. The stockholders of the Company shall have duly approved the transactions contemplated by this Agreement (the "Stockholder Approval"), if required by applicable law. (b) Form S-4. The Form S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order, and any material "blue sky" and other state securities laws applicable to the registration and qualification of Common Shares to be retained in the Merger shall have been complied with. (c) Solvency Letters. Each of the Board of Directors of the Company and FSI shall have received a solvency letter, in form and substance and from an independent evaluation firm reasonably satisfactory to it, as to the solvency of the Company and its subsidiaries on a consolidated basis after giving effect to the transactions contemplated by this Agreement, including all financings contemplated hereby. (d) Orders and Injunctions. An order shall have been entered in any action or proceeding before any United States federal or state court or governmental agency or other United States regulatory or administrative agency or commission (an "Order"), or a preliminary or permanent injunction by a United States court of competent jurisdiction shall have been issued and remain in effect (an "Injunction"), which, in either case, would have the effect of (i) preventing consummation of the Merger, or (ii) imposing material limitations on the ability of FSI effectively to acquire or hold the business of the Company and its subsidiaries taken as a whole or to exercise full rights of ownership of the Shares acquired by it; provided, however, that in order to invoke this condition, FSI shall have used in its judgment, its commercially reasonable best efforts to prevent such Order or Injunction or ameliorate the effects thereof. (e) Illegality. There shall have been any United States federal or state statute, rule or regulation enacted or promulgated after the date of this Agreement that could in the reasonable judgment of FSI result in any of the material adverse consequences referred to in paragraph (c) above. (f) HSR Act. Any waiting period (and any extension thereof) under the HSR Act applicable to the Merger shall have expired or terminated. SECTION 6.2 Conditions to Obligations of FSI. The obligations of FSI to effect the Merger are further subject to the following conditions: (a) Representations and Warranties. The representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date; provided, however, that, with respect to representations and warranties other than Sections 3.02 and 3.03(a) and representations and warranties otherwise qualified by Material Adverse Effect, for purposes of this Section 6.02(a), such representations and warranties and statements shall be deemed to be true and correct in all respects unless the failure or failures of such representations and warranties and statements to be so true and correct, individually or in the aggregate, would result in a Material Adverse Effect with respect to the Company. FSI shall have received a certificate signed on behalf of the Company by the chief executive officer and the chief financial officer of the Company to the effect set forth in this paragraph. (b) Performance of Obligations of the Company. The Company shall have performed the obligations required to be performed by it under this Agreement at or prior to the Closing Date, including but not limited to its obligations pursuant to Section 6.06 hereof, except for such failures to perform as have not had or would not, individually or in the aggregate, have a Material Adverse Effect with respect to the Company or materially adversely affect the ability of the Company to consummate the transactions contemplated hereby. (c) Consents, etc. FSI shall have received evidence, in form and substance reasonably satisfactory to it, that all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and other third parties set forth in Section 3.03 of the Company Disclosure Schedule shall have been obtained. (d) No Litigation. There shall not be pending by any Governmental Entity any suit, action or proceeding (or by any other person any suit, action or proceeding which has a reasonable likelihood of success), (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement or seeking to obtain from FSI or any of their affiliates any damages that are material to any such party (ii) seeing to prohibit or limit the ownership or operation by the Company or any of its subsidiaries of any material portion of the business or assets of the Company or any of its subsidiaries, to dispose of or hold separate any material portion of the business or assets of the Company or any of its subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement or (iii) seeking to impose limitations on the ability of FSI (or any designee of FSI), to acquire or hold, or exercise full rights of ownership of, any Common Shares, including, without limitation, the right to vote Common Shares on all matters properly presented to the stockholders of the Company. (e) Financing. The Company shall have received the proceeds of financing pursuant to the commitment letters set forth on Section 6.02(e) of the FSI Disclosure Schedule on terms and conditions set forth therein (or (as modified in accordance with Section 5.03(c)) on such other terms and conditions, or involving such other financing sources, as FSI and the Company shall reasonably agree and are not materially more onerous) in amounts sufficient to consummate the transactions contemplated by this Agreement, including, without limitation (i) to pay, with respect to all Common Shares in the Merger, the cash portion of the Merger Consideration pursuant to Section 2.01(c)(iv), (ii) to refinance the outstanding indebtedness of the Company, (iii) to pay any fees and expenses in connection with the transactions contemplated by this Agreement or the financing thereof and (iv) to provide for the working capital needs of the Company following the Merger, including, without limitation, if applicable, letters of credit. SECTION 6.3 Conditions to Obligation of the Company. The obligation of the Company to effect the Merger is further subject to the following conditions: (a) Representations and Warranties. The representations and warranties of FSI set forth in this Agreement shall be true and correct in all respects, in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, provided, that, for purposes of this Section 6.03(a), with respect to representations and warranties other than Section 3.02(a) and the representations and warranties otherwise qualified by Material Adverse Effect, such representations and warranties shall be deemed to be true and correct in all respects unless the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would result in a Material Adverse Effect of FSI. The Company shall have received certificates signed on behalf of FSI, respectively, by an authorized officer of FSI, respectively, to the effect set forth in this paragraph. (b) Performance of Obligations of FSI. FSI shall have performed the obligations required to be performed by it under this Agreement at or prior to the Closing Date (except for such failures to perform as have not had or could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect with respect to FSI or adversely affect the ability of FSI to consummate the transactions herein contemplated or perform its obligations hereunder). ARTICLE VII TERMINATION; AMENDMENTS; WAIVER SECTION 7.1 Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval thereof by the stockholders of the Company: (a) by the mutual written consent of FSI and the Company, by action of their respective Boards of Directors; (b) by FSI or the Company if the Merger shall not have been consummated on or before March 31, 1998; provided, however, that neither FSI nor the Company may terminate this Agreement pursuant to this Section 7.01(b) if such party shall have materially breached this Agreement; (c) by FSI or the Company if any court of competent jurisdiction in the United States or other United States Governmental Entity has issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and nonappealable; provided, however, that the party seeking to terminate this Agreement shall have used its reasonable best efforts to remove or lift such order, decree, ruling or other action; (d) by the Company if, prior to the Effective Time, any person has made a bona fide proposal relating to an Acquisition Transaction, or has commenced a tender or exchange offer for the Common Shares, and the Company Board determines in good faith (i) after consultation with its financial advisors, that such transaction constitutes a superior offer from a financial point of view and (ii) after consultation with counsel, that failure to approve such proposal and terminate this Agreement could reasonably be expected to result in a breach of fiduciary duties of the Company Board; provided, however, that, notwithstanding anything in this Agreement to the contrary, the termination of this Agreement by the Company in compliance with this Section 7.01(d) shall not be deemed to violate any other obligations of the Company under this Agreement; (e) by FSI if the Company breaches its covenant in Section 5.08 or takes an action pursuant to the second sentence of Section 5.08; (f) by FSI, if the Company Board shall have (i) failed to recommend to the stockholders of the Company that they give the Stockholder Approval, (ii) withdrawn or modified in a manner adverse to FSI its approval or recommendation of this Agreement or the Merger, (iii) shall have approved or recommended an Acquisition Transaction, (iv) shall have resolved to effect any of the foregoing or (v) shall have otherwise taken steps to impede the Stockholder Approval; or (g) by either FSI or the Company, if the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a vote held at a duly held meeting of stockholders or at any adjournment thereof. SECTION 7.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 7.01, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party or its directors, officers or stockholders, other than the provisions of the last sentence of Section 5.02 and the provisions of this Section 7.02 and Section 7.03, which shall survive any such termination. Nothing contained in this Section 7.02 shall relieve any party from liability for any breach of this Agreement. SECTION 7.3 Fees and Expenses. (a) In addition to any other amounts which may be payable or become payable pursuant to any other paragraph of this Section 7.03, in the event that this Agreement is terminated for any reason other than a material breach by FSI, the Company shall promptly reimburse the THL or FSI, as the case may be, for all out-of-pocket expenses and fees (including, without limitation, fees payable to all banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants, financial printers, experts and consultants to THL and its affiliates), whether incurred prior to, on or after the date hereof, in connection with the Merger and the consummation of all transactions contemplated by this Agreement, and the financing thereof up to $12 million. Except as otherwise specifically provided for herein, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses. (b) In the event that (i) this Agreement is terminated pursuant to Section 7.01(d) or (f), or (ii) any Person (other than THL or any of its affiliates) shall have made, or proposed, communicated or disclosed in a manner which is or otherwise becomes public a proposal for an Acquisition Transaction prior to the Special Meeting, the Stockholder Approval has not been obtained and, thereafter, this Agreement is terminated then the Company shall promptly pay FSI a termination fee of $25 million (the "Termination Fee"), provided that in no event shall more than one Termination Fee be payable by the Company. (c) The prevailing party in any legal action undertaken to enforce this Agreement or any provision hereof shall be entitled to recover from the other party the costs and expenses (including attorneys' and expert witness fees) incurred in connection with such action. SECTION 7.4 Amendment. This Agreement may be amended by the Company and FSI at any time before or after any approval of this Agreement by the stockholders of the Company but, after any such approval, no amendment shall be made which decreases the Merger Consideration or which adversely affects the rights of the Company's stockholders hereunder without the approval of such stockholders. This Agreement may not be amended except by an instrument in writing signed on behalf of all the parties. SECTION 7.5 Extension; Waiver. At any time prior to the Effective Time, FSI, on the one hand, and the Company, on the other hand, may (i) extend the time for the performance of any of the obligations or other acts of the other, (ii) waive any inaccuracies in the representations and warranties contained herein of the other or in any document, certificate or writing delivered pursuant hereto by the other or (iii) waive compliance by the other with any of the agreements or conditions. Any agreement on the part of any party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. ARTICLE VIII MISCELLANEOUS SECTION 8.1 Non-Survival of Representations and Warranties. The representations and warranties made in this Agreement shall not survive beyond the Effective Time. Notwithstanding the foregoing, the agreements set forth in Section 2.04, Section 2.05, the last sentence of Section 5.03(a), Section 5.05 and Section 5.06 shall survive the Effective Time indefinitely (except to the extent a shorter period of time is explicitly specified therein). SECTION 8.2 Entire Agreement; Assignment. (a) This Agreement (including the documents and the instruments referred to herein) and the Confidentiality Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and thereof. (b) Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other party (except that FSI may assign its rights, interest and obligations to any affiliate or direct or indirect subsidiary of FSI without the consent of the Company provided that no such assignment shall relieve FSI of any liability for any breach by such assignee). Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. SECTION 8.3 Validity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, each of which shall remain in full force and effect. SECTION 8.4 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person, by overnight courier or telecopier to the respective parties as follows: If to FSI: Thomas H. Lee Company 75 State Street, Ste. 2600 Boston, Massachusetts 02109 Attention: Scott M. Sperling Anthony J. Di Novi Telecopier Number: (617) 227-3514 with a copy to: Skadden, Arps, Slate, Meager & Flom LLP 919 Third Avenue New York, New York 10022 Attention: Eric L. Cochran, Esq. Telecopier Number: (212) 735-2000 If to the Company: Fisher Scientific International Inc. Liberty Lane Hampton, New Hampshire 03842 Attention: General Counsel Telecopier Number: (603) 929-2703 with a copy to: Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Attention: Barry A. Bryer, Esq. Telecopier Number: (212) 403-2000 or to such other address as the person to whom notice is given may have previously furnished to the other in writing in the manner set forth above; provided that notice of any change of address shall be effective only upon receipt thereof. SECTION 8.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. SECTION 8.6 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. SECTION 8.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. SECTION 8.8 Parties in Interest. Except with respect to Sections 2.04, 5.05 and 5.06 (which are intended to be for the benefit of the persons identified therein, and may be enforced by such persons), this Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement. SECTION 8.9 Certain Definitions. As used in this Agreement: (a) the term "affiliate", as applied to any person, shall mean any other person directly or indirectly controlling, controlled by, or under common control with, that person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as applied to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that person, whether through the ownership of voting securities, by contract or otherwise; (b) the term "Person" or "person" shall include individuals, corporations, partnerships, trusts, other entities and groups (which term shall include a "group" as such term is defined in Section 13(d)(3) of the Exchange Act); and (c) the term "Subsidiary" or "subsidiaries" means, with respect to FSI, the Company or any other person, any corporation, partnership, joint venture or other legal entity of which FSI, the Company or such other person, as the case may be (either alone or through or together with any other subsidiary), owns, directly or indirectly, stock or other equity interests the holders of which are generally entitled to more than 50% of the vote for the election of the board of directors or other governing body of such corporation or other legal entity. SECTION 8.10 Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its respective officer thereunto duly authorized, all as of the day and year first above written. FISHER SCIENTIFIC INTERNATIONAL INC. By: ---------------------------------- Name: Paul M. Meister Title: Senior Vice President and Chief Financial Officer FSI MERGER CORP. By: ---------------------------------- Name: Scott M. Sperling Title: Chairman of the Board -----END PRIVACY-ENHANCED MESSAGE-----