-----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, RbuOODmgCsDBOAYO6Aai5MBi5RBW9cMMShJlA6NMDz1OZv+Fxh+W0/EgeyG6kIad bzIDkTlI+KWskhW1c1ctSw== 0000950103-02-000184.txt : 20020414 0000950103-02-000184.hdr.sgml : 20020414 ACCESSION NUMBER: 0000950103-02-000184 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20020220 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CREDIT SUISSE FIRST BOSTON/ CENTRAL INDEX KEY: 0000824468 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: PO BOX 900 STREET 2: FHLS CITY: ZURICH SWITZERLAND MAIL ADDRESS: STREET 1: PO BOX 900 CITY: ZURICH SWITZERLAND FORMER COMPANY: FORMER CONFORMED NAME: CREDIT SUISSE DATE OF NAME CHANGE: 19921119 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/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-41897 FILM NUMBER: 02554092 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 SC 13D/A 1 feb1902_sc13d.txt ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Amendment No. 2* FISHER SCIENTIFIC INTERNATIONAL INC. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 338032105 - -------------------------------------------------------------------------------- (CUSIP Number) Ulrika Ekman Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 (212) 450-4000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 19, 2002 - -------------------------------------------------------------------------------- (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 that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the following box [ ]. Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. (Continued on following pages) Page 1 of 9 Pages ================================================================================ - -------- * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act, but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 338032105 Page 2 of 9 Pages --------- --- --- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Credit Suisse First Boston, on behalf of the Credit Suisse First Boston business unit - -------------------------------------------------------------------------------- 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 Switzerland - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER See Item 5 ------------------------------------------------------- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON ------------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER See Item 5 ------------------------------------------------------- 10 SHARED DISPOSITIVE POWER See Item 5 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 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) See Item 5 - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* BK, HC, OO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! This Amendment No.2 amends and supplements the Report on the Schedule 13D, originally filed on February 10, 1998 (as heretofore amended and supplemented, the "Schedule 13D") with respect to the shares of common stock, $0.01 par value per share (the "Shares") of Fisher Scientific International Inc., a Delaware corporation ("Fisher"). Unless otherwise indicated, each capitalized term used but not defined herein shall have the meaning assigned to such term in the Schedule 13D. Item 2. Identity and Background. The response set forth in Item 2 of the Schedule 13D is hereby amended and restated in its entirety as follows: "In accordance with Securities and Exchange Commission Release No. 34-39538 (January 12, 1998), this Schedule 13D is being filed by Credit Suisse First Boston (the "Bank"), a Swiss bank, on behalf of itself and its subsidiaries, to the extent that they constitute part of the investment banking business (the "Reporting Person") of the Credit Suisse First Boston business unit (the "CSFB business unit"). The CSFB business unit is also comprised of an asset management business ("Asset Management"). The Reporting Person provides financial advisory and capital raising services, sales and trading for users and suppliers of capital around the world and invests in and manages private equity and venture capital funds. Asset Management provides asset management and investment advisory services to institutional, mutual fund and private investors worldwide. The address of the Bank's principal business and office is Uetlibergstrasse 231, P.O. Box 900, CH 8070 Zurich, Switzerland. The address of the Reporting Person's principal business and office in the United States is Eleven Madison Avenue, New York, New York 10010. The Bank owns directly a majority of the voting stock, and all of the non-voting stock, of Credit Suisse First Boston, Inc. ("CSFBI"), a Delaware corporation. The ultimate parent company of the Bank and CSFBI is Credit Suisse Group ("CSG"), a corporation formed under the laws of Switzerland. CSG is a global financial services company with two distinct business units. In addition to the CSFB business unit, CSG and its consolidated subsidiaries are comprised of the Credit Suisse Financial Services business unit. CSG's business address is Paradeplatz 8, P.O. Box 1, CH 8070 Zurich, Switzerland. CSFBI's business address is 11 Madison Avenue, New York, New York 10010. The principal business of CSG is acting as a holding company for a global financial services group with five distinct specialized business units that are independently operated. In addition to the two business units referred to above, CSG and its subsidiaries (other than the Bank and its subsidiaries) are comprised of (a) the Credit Suisse Private Banking business unit that engages in global private banking business, (b) the Credit Suisse business unit that engages in the Swiss domestic banking business and (c) the Winterthur business unit that engages in the global insurance business. CSG, for purposes of the federal securities laws, may be deemed ultimately to control the Bank and the Reporting Person. CSG, its executive officers and directors, and its direct and indirect subsidiaries (including Asset Management and the Credit Suisse Financial Services business unit) may beneficially own Shares to which this schedule relates and such Shares are not reported in this statement. CSG disclaims beneficial ownership of Shares beneficially owned by its direct and indirect subsidiaries, including the Reporting Person. The Reporting Person disclaims beneficial ownership of Shares beneficially owned by CSG, Asset Management and the Credit Suisse Financial Services business unit. As of November 3, 2000, CSFBI acquired all of the voting stock of Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation, which was renamed Credit Suisse First Boston (USA), Inc. ("CSFB-USA"), and the following entities became indirect subsidiaries of CSFBI: (1) DLJ Merchant Banking Partners II, L.P., a Delaware limited partnership ("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 Page 3 of 9 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) Credit Suisse First Boston Private Equity, Inc., formerly known as DLJ Capital Investors, Inc., a Delaware corporation ("DLJCI"); (18) UK Investment Plan 1997 Partners, a Delaware general partnership ("1997 Partners") and (19) UK Investment Plan 1997, Inc., a Delaware corporation ("Plan 1997" (together with the entities listed in (1) through (18) above, the "DLJ Entities")). 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. Page 4 of 9 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 CSFB-USA. 1997 Partners is a Delaware general partnership which makes investments for long term appreciation generally side-by-side with Partners II. Plan 1997 and CSFB-USA are each general partners of 1997 Partners. Plan 1997 is a Delaware corporation. Plan 1997 is a wholly owned subsidiary of CSFB-USA. CSFB-USA is a publicly held Delaware corporation. CSFB-USA directly owns all of the capital stock of DLJCI and Plan 1997. CSFB-USA, 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. 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 director of the Reporting Person, CSFBI, CSFB-USA, and those DLJ Entities that are corporations are set forth on Schedules A through J attached hereto, each of which is incorporated by reference herein. During the past five (5) five years none of the Reporting Person, CSFBI, SCFB-USA, the DLJ Entities nor, to the best knowledge of the Reporting Person, any of the other persons listed on Schedules A through J 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 4. Purpose of the transaction. The response set forth in Item 4 of the Schedule 13D is hereby amended and supplemented by adding, after the second paragraph, the following: "On January 18, 2002, Fisher filed a registration statement with the Securities and Exchange Commission relating to a secondary public offering of up to 1,093,187 Shares beneficially owned by the Reporting Person (plus up to an additional 163,978 Shares pursuant to an over-allotment option granted to the underwriters). On February 13, 2002, Fisher, pursuant to Rule 462(b) under the Securities Act of 1933, as amended, filed a registration statement Page 5 of 9 increasing the size of the offering to up to 1,202,505 Shares beneficially owned by the Reporting Person (plus up to an additional 180,376 Shares pursuant to an over-allotment option granted to the underwriters). The Reporting Person sold 1,202,505 Shares in such offering on February 19, 2002. This Amendment No. 2 to the Schedule 13D shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state." Item 5. Interest in Securities of the Issuer. The response set forth in (a) and (b) of Item 5 of the Schedule 13D is hereby amended and supplemented by the following information: (i) by deleting the fourth paragraph and the first sentence of the fifth paragraph and replacing them with the following: "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 Amended and Restated Investors' Agreement dated as of March 29, 1999 (filed hereto and made part hereof as Exhibit 7), as amended by Amendment No. 1, dated May 14, 2000, and Amendment No. 2, dated May 2, 2001 (filed hereto and made part hereof as Exhibit 8 and Exhibit 9, respectively) (the "Investors' Agreement"). 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 nine and no more than ten members, of whom three will be nominated by Equity Fund III, one will be nominated by THL FSI, one will be nominated by Partners II, one will be Paul M. Montrone and one will be Paul M. Meister (Montrone and Meister collectively, the "Management Directors".)" (ii) by deleting the twentieth through thirty-third paragraphs and replacing them with the following: "In connection with the sale of 1,202,505 Shares referred to in Item 4, the Reporting Persons entered into an Underwriting Agreement, dated February 12, 2002 (the "Underwriting Agreement", a form of which is filed hereto and made part hereof as Exhibit 10), and a related Custody Agreement and Power of Attorney (filed hereto and made part hereof as Exhibit 11 and Exhibit 12, respectively), among Goldman, Sachs & Co., Credit Suisse First Boston Corporation, J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated (collectively, the "Underwriters"), the Reporting Person and certain other selling stockholders identified therein (collectively, the "Selling Stockholders"). Pursuant to the Underwriting Agreement, the Selling Stockholders granted to the Underwriters an option to purchase up to 1,072,500 Shares to cover over-allotments. If the Underwriters exercise such option, the Reporting Person will sell the additional Shares necessary to exercise the option exercise ratably in proportion to the number of Shares offered by the Selling Stockholders before the option exercise. In addition, the Selling Stockholders agreed that, without the prior consent of Goldman, Sachs & Co., they would not sell or otherwise dispose of any Shares (or securities convertible into or exchangeable for Shares) for a period of 90 days after the sale under the Underwriting Agreement. As of the date of this Amendment No. 2, Partners II directly holds 3,055,406 Shares and Warrants convertible into an additional 313,745 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, Partners II-A directly holds 121,679 Shares and Warrants convertible into an additional 12,495 Shares and has the shared power to vote and direct the disposition of such Shares and Page 6 of 9 Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, Millennium directly holds 49,403 Shares and Warrants convertible into an additional 5,075 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, Millennium-A directly holds 9,636 Shares and Warrants convertible into an additional 990 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, EAB directly holds 13,719 Shares and Warrants convertible into an additional 1,410 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, Offshore II directly holds 150,251 Shares and Warrants convertible into an additional 15,430 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, Diversified directly holds 178,634 Shares and Warrants convertible into an additional 18,345 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, Diversified-A directly holds 66,339 Shares and Warrants convertible into an additional 6,810 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, Funding II directly holds 542,476 Shares and Warrants convertible into an additional 55,700 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, 1997 Partners directly holds 80,838 Shares and Warrants convertible into an additional 8,300 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, ESC directly holds 5,877 Shares and Warrants convertible into an additional 605 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. As of the date of this Amendment No. 2, ESC II directly holds 576,172 Shares and Warrants convertible into an additional 59,165 Shares and has the shared power to vote and direct the disposition of such Shares and Warrants, in accordance with the relationships described in Item 2. In addition, in the ordinary course of the Reporting Person's business, CSFBI directly holds approximately 19,648 Shares in proprietary trading and investment accounts. As a result of the holdings of Fisher's securities described above, the Reporting Person may be deemed to beneficially own indirectly 5,369,784 Shares, representing 9.8% of the outstanding Shares." The response set forth in (c) of Item 5 of the Schedule 13D is hereby deleted and replaced by the following: "Other than the sales of Shares in the secondary public offering described under Item 4 and Item 5(a) and (b), Page 7 of 9 no transaction in the Shares or Warrants has been effected in the last 60 days by the Reporting Person, CSFBC, CSFBI, CSFB-USA or the DLJ Entities, except that CSFBC has effectuated transactions in the Shares as a market maker in the ordinary course of business." Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. The response set forth in Item 6 of the Schedule 13D is hereby amended and supplemented by deleting the second paragraph and replacing it with the following: "A copy of each of the Investor's Subscription Agreement, the Common Stock Warrant Acquisition Agreement, the Merger Agreement, the Investors' Agreement and the form of Underwriting Agreement are attached hereto as Exhibit 3, 4, 6, 7, 8, 9 and 10 and are incorporated herein by reference. The summaries of the terms of the Investor's Subscription Agreement, the Common Stock Warrant Acquisition Agreement, the Merger Agreement, the Investors' Agreement and the Underwriting Agreement, set forth herein, are qualified in their entirety by reference to the respective exhibits." Item 7. Material to be Filed as Exhibits. The response set forth in Item 7 of the Schedule 13D is hereby amended by deleting Exhibit 5 in its entirety and by adding the following: "Exhibit 7: Amended and Restated Investors' Agreement dated as of March 29, 1999 among Fisher Scientific International Inc. and the investors named therein. Exhibit 8: Amendment No. 1, dated May 14, 2000, to the Investors' Agreement dated as of March 29, 1999 among Fisher Scientific International Inc. and the investors named therein. Exhibit 9: Amendment No. 2, dated May 2, 2001, to the Amended and Restated Investors' Agreement dated as of March 29, 1999 among Fisher Scientific International Inc. and the investors named therein. Exhibit 10: Underwriting Agreement, dated February 12, 2002, among Goldman, Sachs & Co., Credit Suisse First Boston Corporation, J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, and the selling stockholders identified therein. Exhibit 11: Form of Custody Agreement, dated February 4, 2002 among Fisher Scientific International Inc. and the selling stockholders identified therein. Exhibit 12: Form of Power of Attorney, dated February 12, 2002, duly executed and delivered to Fisher Scientific International Inc. by the selling stockholders identified therein." Page 8 of 9 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: February 20, 2002 CREDIT SUISSE FIRST BOSTON, acting solely on behalf of the Credit Suisse First Boston business unit By: /s/ Ivy B. Dodes ------------------------------- Name: Ivy B. Dodes Title: Managing Director Page 9 of 9 SCHEDULES Schedules A to J are hereby deleted in their entirety and replaced with the following: SCHEDULE A Executive Officers and Directors of DLJ Merchant Banking II, Inc. The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of DLJ Merchant Banking II, Inc. The business address of DLJ Merchant Banking II, Inc. is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- Nicole Arnaboldi 11 Madison Avenue Managing Director USA New York, NY 10010 Thompson Dean 11 Madison Avenue Managing Director USA New York, NY 10010 Peter T. Grauer 11 Madison Avenue Managing Director USA New York, NY 10010 Hamilton E. James 11 Madison Avenue Chairman; Managing Director, Credit USA New York, NY 10010 Suisse First Boston (USA), Inc. Lawrence M.v.D. Schloss 11 Madison Avenue Managing Director and Chief Operating USA New York, NY 10010 Officer Carlos Garcia 11 Madison Avenue Managing Director USA New York, NY 10010 Stuart S. Flamberg 11 Madison Avenue Vice President and Director of Taxes USA New York, NY 10010 Michael S. Isikow 11 Madison Avenue Vice President USA New York, NY 10010 Mark A. Competiello 11 Madison Avenue Vice President and Tax Manager USA New York, NY 10010 Edward A. Poletti 11 Madison Avenue Senior Vice President and Controller USA New York, NY 10010 George Varughese 11 Madison Avenue Managing Director and Assistant Secretary USA New York, NY 10010
SCHEDULE B Executive Officers and Directors of DLJ Diversified Partners, Inc. The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of DLJ Diversified Partners, Inc. The business address of DLJ Diversified Partners, Inc. is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- Hamilton E. James 11 Madison Avenue Chairman; Managing Director, Credit USA New York, NY 10010 Suisse First Boston (USA), Inc. Lawrence M.v.D. Schloss 11 Madison Avenue Managing Director and Chief Operating USA New York, NY 10010 Officer Nicole Arnaboldi 11 Madison Avenue Managing Director USA New York, NY 10010 Thompson Dean 11 Madison Avenue Managing Director USA New York, NY 10010 Peter T. Grauer 11 Madison Avenue Managing Director USA New York, NY 10010 Susan C. Schnabel 11 Madison Avenue Managing Director USA New York, NY 10010 Barry A. Scholem 11 Madison Avenue Managing Director USA New York, NY 10010 Edward A. Poletti 11 Madison Avenue Vice President and Controller USA New York, NY 10010 Stuart S. Flamberg 11 Madison Avenue Vice President and Director of Taxes USA New York, NY 10010 Ivy B. Dodes 11 Madison Avenue Vice President USA New York, NY 10010 Michael S. Isikow 11 Madison Avenue Vice President USA New York, NY 10010 Mark A. Competiello 11 Madison Avenue Vice President and Tax Manager USA New York, NY 10010
SCHEDULE C Executive Officers and Directors of DLJMB Funding II, Inc. The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of DLJMB Funding II, Inc. The business address of DLJMB Funding II, Inc. is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- Anthony F. Daddino 11 Madison Avenue President; Executive Vice President and USA New York, NY 10010 Chief Financial Officer, Credit Suisse First Boston (USA), Inc. Hamilton E. James 11 Madison Avenue Chairman; Managing Director, Credit USA New York, NY 10010 Suisse First Boston (USA), Inc. Lawrence M.v.D. Schloss 11 Madison Avenue Managing Director and Chief Operating USA New York, NY 10010 Officer Raymond M. Disco 11 Madison Avenue Treasurer USA New York, NY 10010 Stuart S. Flamberg 11 Madison Avenue Vice President and Deputy Director of USA New York, NY 10010 Taxes Edward W. Flynn 11 Madison Avenue Vice President and Director of Taxes USA New York, NY 10010 Ivy B. Dodes 11 Madison Avenue Vice President USA New York, NY 10010 Lori M. Russo 11 Madison Avenue Vice President USA New York, NY 10010 Rhonda G. Matty 11 Madison Avenue Assistant Secretary USA New York, NY 10010 Mark A. Competiello 11 Madison Avenue Vice President and Tax Manager USA New York, NY 10010
SCHEDULE D Executive Officers and Directors of Credit Suisse First Boston Private Equity, Inc. The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of Credit Suisse First Boston Private Equity, Inc. The business address of Credit Suisse First Boston Private Equity, Inc. is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- Hamilton E. James 11 Madison Avenue Chairman; Managing Director, Credit USA New York, NY 10010 Suisse First Boston (USA), Inc. Lawrence M.v.D. Schloss 11 Madison Avenue Managing Director and Chief Executive USA New York, NY 10010 Officer Charles G. Ward, III 11 Madison Avenue Director USA New York, NY 10010 George R. Hornig 11 Madison Avenue Chief Operating Officer USA New York, NY 10010 Kenneth J. Lohsen 11 Madison Avenue Controller USA New York, NY 10010 Stuart S. Flamberg 11 Madison Avenue Vice President and Deputy Director of USA New York, NY 10010 Taxes Laura Raftery 11 Madison Avenue Treasurer USA New York, NY 10010 Lindsay Hollister 11 Madison Avenue Vice President and General Cousel USA New York, NY 10010 Edward A. Poletti 11 Madison Avenue Chief Financial Officer USA New York, NY 10010 Michael Arpey 11 Madison Avenue Vice President USA New York, NY 10010 Ivy B. Dodes 11 Madison Avenue Vice President USA New York, NY 10010 Sean Lammers 11 Madison Avenue Vice President USA New York, NY 10010 Edward S. Nadel 11 Madison Avenue Vice President USA New York, NY 10010 David M. Russell 11 Madison Avenue Vice President USA New York, NY 10010 Peter Song 11 Madison Avenue Vice President USA New York, NY 10010 Mina Yu 11 Madison Avenue Vice President USA New York, NY 10010 Lori M. Russo 11 Madison Avenue Secretary USA New York, NY 10010 Rhonda G. Matty 11 Madison Avenue Assistant Secretary USA New York, NY 10010 Nicole Arnaboldi 11 Madison Avenue Chief Operating Officer - Fund USA New York, NY 10010 Management Mark A. Competiello 11 Madison Avenue Vice President and Tax Manager USA New York, NY 10010
SCHEDULE E Executive Officers and Directors of DLJ LBO Plans Management Corporation The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of DLJ LBO Plans Management Corporation. The business address of DLJ LBO Plans Management Corporation is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- Anthony F. Daddino 11 Madison Avenue Chief Administrative Officer, Credit USA New York, NY 10010 Suisse First Boston business unit Joseph F. Huber 11 Madison Avenue Director USA New York, NY 10010 David C. O'Leary 11 Madison Avenue Director USA New York, NY 10010 Stuart S. Flamberg 11 Madison Avenue Vice President and Deputy Director of USA New York, NY 10010 Taxes Raymond M. Disco 11 Madison Avenue Treasurer USA New York, NY 10010 Ivy B. Dodes 11 Madison Avenue Vice President USA New York, NY 10010 Thomas Prevost 11 Madison Avenue Vice President and Director of Taxes USA New York, NY 10010 Anthony F. Daddino 11 Madison Avenue President USA New York, NY 10010 James D. Allen 11 Madison Avenue Vice President USA New York, NY 10010 Michael Arpey 11 Madison Avenue Vice President USA New York, NY 10010 Gregory W. Burnes 11 Madison Avenue Vice President USA New York, NY 10010 John S. Ficarra 11 Madison Avenue Vice President USA New York, NY 10010 Joseph F. Huber 11 Madison Avenue Vice President USA New York, NY 10010 Matthew C. Kelly 11 Madison Avenue Vice President USA New York, NY 10010 Peter J. Murray 11 Madison Avenue Vice President USA New York, NY 10010 Edward S. Nadel 11 Madison Avenue Vice President USA New York, NY 10010 David C. O'Leary 11 Madison Avenue Vice President USA New York, NY 10010 David M. Russell 11 Madison Avenue Vice President USA New York, NY 10010 Richard A. Scardina 11 Madison Avenue Vice President USA New York, NY 10010 Mina Yu 11 Madison Avenue Vice President USA New York, NY 10010 Lori M. Russo 11 Madison Avenue Secretary USA New York, NY 10010 Rhonda G. Matty 11 Madison Avenue Assistant Secretary USA New York, NY 10010 Mark A. Competiello 11 Madison Avenue Vice President and Tax Manager USA New York, NY 10010 Edward W. Flynn 11 Madison Avenue Vice President and Deputy Director of USA New York, NY 10010 Taxes Edward A. Poletti 11 Madison Avenue Senior Vice President and Controller USA New York, NY 10010
SCHEDULE F Executive Officers and Directors of UK Investment Plan 1997, Inc. The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of UK Investment Plan 1997, Inc. The business address of UK Investment Plan 1997, Inc. is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- Mark A. Competiello 11 Madison Avenue Vice President and Tax Manager; Senior USA New York, NY 10010 Vice President and Tax Manager, Credit Suisse First Boston (USA), Inc. Stuart S. Flamberg 11 Madison Avenue Vice President and Director of Taxes; USA New York, NY 10010 Senior Vice President and Director of Taxes, Credit Suisse First Boston (USA), Inc. Anthony F. Daddino 11 Madison Avenue President USA New York, NY 10010 Ivy B. Dodes 11 Madison Avenue Vice President USA New York, NY 10010 Edward A. Poletti 11 Madison Avenue Senior Vice President and Controller USA New York, NY 10010
SCHEDULE G Executive Officers and Directors of Credit Suisse First Boston Corporation The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of Credit Suisse First Boston Corporation. The business address of Credit Suisse First Boston Corporation is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- Brady W. Dougan 11 Madison Avenue Managing Director; Head of Equities, USA New York, NY 10010 Credit Suisse First Boston business unit Hamilton E. James 11 Madison Avenue Managing Director; Co-Head of USA New York, NY 10010 Investment Banking, Credit Suisse First Boston business unit John J. Mack 11 Madison Avenue President and Chief Executive Officer USA New York, NY 10010 Carlos Onis 11 Madison Avenue Managing Director USA New York, NY 10010 Richard E. Thornburgh 11 Madison Avenue Managing Director; Vice Chairman of the USA New York, NY 10010 Executive Board and Chief Financial Officer, Credit Suisse First Boston business unit and Member of the Executive Board, Credit Suisse Group Charles G. Ward, III 11 Madison Avenue Managing Director; Co-Head of USA New York, NY 10010 Investment Banking, Credit Suisse First Boston business unit Gregory W. Burnes 11 Madison Avenue Bank Account Officer USA New York, NY 10010 William M. Chandler 11 Madison Avenue Deputy General Counsel USA New York, NY 10010 Raymond Dorado 11 Madison Avenue Deputy General Counsel USA New York, NY 10010 Andrew M. Hutcher 11 Madison Avenue Deputy General Counsel USA New York, NY 10010 David Brodsky 11 Madison Avenue General Counsel USA New York, NY 10010 Richard F. Brueckner 11 Madison Avenue Managing Director USA New York, NY 10010 Michael Campbell 11 Madison Avenue Managing Director USA New York, NY 10010 Anthony F. Daddino 11 Madison Avenue Managing Director; Chief Administrative USA New York, NY 10010 Officer, Credit Suisse First Boston business unit D. Wilson Ervin 11 Madison Avenue Managing Director; Head of Strategic Risk USA New York, NY 10010 Management, Credit Suisse First Boston business unit Robert C. O'Brien 11 Madison Avenue Managing Director; Chief Credit Officer, USA New York, NY 10010 Credit Suisse First Boston business unit David C. Fisher 11 Madison Avenue Chief Financial Officer; Chief Accounting USA New York, NY 10010 Officer, Credit Suisse First Boston business unit Frank J. DeCongelio 11 Madison Avenue Head of Operations; Managing Director, USA New York, NY 10010 Credit Suisse First Boston Lori M. Russo 11 Madison Avenue Secretary USA New York, NY 10010 Rhonda G. Matty 11 Madison Avenue Assistant Secretary USA New York, NY 10010 Lewis H. Wirshba 11 Madison Avenue Treasurer; Treasurer, Credit Suisse First USA New York, NY 10010 Boston business unit Zev A. Kindler 11 Madison Avenue Assistant Treasurer USA New York, NY 10010 Rochelle Pullman 11 Madison Avenue Controller USA New York, NY 10010 Thomas A. DeGennaro 11 Madison Avenue Deputy Director of Taxes USA New York, NY 10010 Peter J. Murray 11 Madison Avenue Bank Account Officer USA New York, NY 10010
SCHEDULE H Executive Officers and Directors of Credit Suisse First Boston (USA), Inc. The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of Credit Suisse First Boston (USA), Inc. The business address of Credit Suisse First Boston (USA), Inc. is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- Robert M. Bavlis 11 Madison Avenue Board Member USA New York, NY 10010 Anthony F. Daddino 11 Madison Avenue Chief Financial and Administrative Officer USA New York, NY 10010 and Board Member; Chief Administrative Officer, Credit Suisse First Boston business unit Brady W. Dougan 11 Madison Avenue Head of the Securities Division and Board USA New York, NY 10010 Member; Head of Equities, Credit Suisse First Boston business unit Carol B. Einiger 11 Madison Avenue Board Member USA New York, NY 10010 Hamilton E. James 11 Madison Avenue Co-Head of Investment Banking and USA New York, NY 10010 Board Member; Co-Head of Investment Banking, Credit Suisse First Boston John J. Mack 11 Madison Avenue President and Chief Executive Officer USA New York, NY 10010 Philip K. Ryan 11 Madison Avenue Board Member; Member of the Executive USA New York, NY 10010 Board and Chief Financial Officer, Credit Suisse Group Richard E. Thornburgh 11 Madison Avenue Division Head-Finance, Administration USA New York, NY 10010 and Operations; Vice Chairman of the Executive Board and Chief Financial Officer, Credit Suisse First Boston business unit and Member of the Executive Board, Credit Suisse Group Maynard J. Toll, Jr. 11 Madison Avenue Board Member USA New York, NY 10010 Stephen R. Volk 11 Madison Avenue Board Member USA New York, NY 10010 Charles G. Ward, III 11 Madison Avenue Co-Head of Investment Banking and USA New York, NY 10010 Board Member; Co-Head of Investment Banking, Credit Suisse First Boston business unit Raymond M. Disco 11 Madison Avenue Assistant Treasurer USA New York, NY 10010 David C. Fisher 11 Madison Avenue Chief Accounting Officer USA New York, NY 10010 Robert C. O'Brien 11 Madison Avenue Chief Credit Officer; Head of Private USA New York, NY 10010 Equity, Credit Suisse First Boston business unit Andrew B. Federbusch 11 Madison Avenue Managing Director USA New York, NY 10010 Neil Moskowitz 11 Madison Avenue Managing Director USA New York, NY 10010 Carlos Onis 11 Madison Avenue Managing Director USA New York, NY 10010 Neil Radey 11 Madison Avenue Managing Director USA New York, NY 10010 Charles Stonehill 11 Madison Avenue Managing Director GBR New York, NY 10010 Luther L. Terry, Jr. 11 Madison Avenue Managing Director USA New York, NY 10010 Stephen R. Volk 11 Madison Avenue Managing Director USA New York, NY 10010 Lewis H. Wirshba 11 Madison Avenue Treasurer USA New York, NY 10010 Lori M. Russo 11 Madison Avenue Secretary USA New York, NY 10010 Rhonda G. Matty 11 Madison Avenue Assistant Secretary USA New York, NY 10010 David Brodsky 11 Madison Avenue Managing Director and General Counsel USA New York, NY 10010 Gregory W. Burnes 11 Madison Avenue Bank Account Officer USA New York, NY 10010 D. Wilson Ervin 11 Madison Avenue Head of Strategic Risk Management USA New York, NY 10010 Peter J. Murray 11 Madison Avenue Bank Account Officer USA New York, NY 10010
SCHEDULE I Executive Officers and Directors of Credit Suisse First Boston, Inc. The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of Credit Suisse First Boston, Inc. The business address of Credit Suisse First Boston, Inc. is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- Anthony F. Daddino 11 Madison Avenue Managing Director and Chief USA New York, NY 10010 Administrative Officer; Chief Administrative Officer, Credit Suisse First Boston business unit Brady W. Dougan 11 Madison Avenue Managing Director and Head of Equities, USA New York, NY 10010 Credit Suisse First Boston business unit Hamilton E. James 11 Madison Avenue Managing Director and Division Co-Head USA New York, NY 10010 of Investment Banking John J. Mack 11 Madison Avenue President and Chief Executive Officer USA New York, NY 10010 Richard E. Thornburgh 11 Madison Avenue Chief Financial Officer USA New York, NY 10010 Adrian R. T. Cooper 11 Madison Avenue Vice President USA New York, NY 10010 Neil Moskowitz 11 Madison Avenue Vice President USA New York, NY 10010 David C. O'Leary 11 Madison Avenue Vice President USA New York, NY 10010 Carlos Onis 11 Madison Avenue Vice President USA New York, NY 10010 Neil Radey 11 Madison Avenue Vice President USA New York, NY 10010 Charles Stonehill 11 Madison Avenue Vice President GBR New York, NY 10010 Lori M. Russo 11 Madison Avenue Secretary USA New York, NY 10010 Rhonda G. Matty 11 Madison Avenue Assistant Secretary USA New York, NY 10010 Zev A. Kindler 11 Madison Avenue Assistant Treasurer USA New York, NY 10010 David C. Fisher 11 Madison Avenue Managing Director and Chief Accounting USA New York, NY 10010 Officer Thomas A. DeGennaro 11 Madison Avenue Deputy Director of Taxes USA New York, NY 10010 D. Wilson Ervin 11 Madison Avenue Managing Director and Head of Strategic USA New York, NY 10010 Risk Management Robert C. O'Brien 11 Madison Avenue Managing Director and Chief Credit USA New York, NY 10010 Officer Charles G. Ward, III 11 Madison Avenue Managing Director and Co-Head of USA New York, NY 10010 Investment Banking Lewis H. Wirshba 11 Madison Avenue Managing Director and Treasurer USA New York, NY 10010
SCHEDULE J Executive Officers and Directors of the CSFB business unit The following table sets forth the name, business address, present principal occupation and citizenship of each executive board member and executive officer of the CSFB business unit. The business address of the CSFB business unit is 11 Madison Avenue, New York, NY 10010. Name Business Address Title and Present Principal Occupation Citizenship - ---- ---------------- -------------------------------------- ----------- John J. Mack 11 Madison Avenue Chairman of the Executive Board and USA New York, NY 10010 Chief Executive Officer Christopher Carter 17 Columbus Courtyard Board Member and Head of Equities GBR London, England E14 Derivatives and Convertibles 4DA Brady W. Dougan 11 Madison Avenue Board Member and Head of Securities USA New York, NY 10010 (Fixed Income Division and Equities) Hamilton E. James 11 Madison Avenue Board Member and Co-Head of USA New York, NY 10010 Investment Banking Gary G. Lynch 11 Madison Avenue Board Member and Head of Legal and USA New York, NY 10010 Compliance Thomas R. Nides 11 Madison Avenue Board Member and Chief Administrative USA New York, NY 10010 Officer Joe L. Roby 11 Madison Avenue Chairman Emeritus of the Executive Board USA New York, NY 10010 and Senior Advisor Hector W. Sants 11 Madison Avenue Board Member and Chief Executive of the USA New York, NY 10010 European, Middle East and African Region Richard E. Thornburgh 11 Madison Avenue Vice Chairman of the Executive Board and USA New York, NY 10010 Chief Financial Officer Stephen R. Volk 11 Madison Avenue Board Member and Chairman of Credit USA New York, NY 10010 Suisse First Boston business unit Charles G. Ward III 11 Madison Avenue Board Member and Co-Head of USA New York, NY 10010 Investment Banking and Private Equity
EX-7 3 feb1102_ex07.txt Exhibit 7 AMENDED AND RESTATED INVESTORS' AGREEMENT dated as of March 29, 1999 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 i Page ---- 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 ii 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 iii AMENDED AND RESTATED INVESTORS' AGREEMENT AMENDED AND RESTATED AGREEMENT (this "Agreement") dated as of March 29, 1999 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 Sharehold ers" 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, the parties hereto entered into an investors' agreement, dated as of January 21, 1998 (the "Original Agreement"), to govern certain of their rights, duties and obligations after consummation of the Merger (as defined below); and WHEREAS, the parties hereto desire to amend and restate the Original Agreement in its entirety as set forth below; and WHEREAS, pursuant to the Subscription Agreement (as defined below) the Equity Investors acquired securities of FSI Merger Corp. ("FSI"); and WHEREAS, pursuant to the terms of the Merger Agreement (as defined below), FSI was 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 was converted into stock of the Company; and WHEREAS, pursuant to the Merger, the Management Shareholders retained 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 were issued to the Equity Investors; and WHEREAS, pursuant to the Rabbi Trust and any stock or option plan, Management Shareholders hold shares of stock of the Company; and WHEREAS, the parties hereto may obtain additional shares of stock of the Company in the future; 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 Subsidiar ies. "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 2 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, 3 Derivatives, and any other equity security issued by the Company. In connection with any reference to a class of Equity Securities which does not specify whether such class is voting or non-voting, voting Common Stock and non-voting Common Stock shall be treated as the same class of Equity Securities to the extent that such voting and non-voting Common Stock have identical terms other than with respect to voting rights. "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 Securi- ties, the number of shares of such class of Equity Securities beneficially owned and (without duplication) which such Persons had the right to acquire from any Person as of January 21, 1998, 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 January 21, 1998 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). 4 "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 January 21, 1998; 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 January 21, 1998; (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; and (iv) Equity Securities issued in connection with a THL Exchange. "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 January 21, 1998; 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 January 21, 1998. "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 Share holders (A) the Company, (B) any THL Entity, (C) any general or limited partner or 5 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 Share- 6 holder's economic interest in Equity Securities or reducing a Management Share- holder'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. 7 "Registration Expenses" means (i) all registration and filing fees, (ii) fees and expenses of compliance with securities or blue sky laws (including reason able 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 Stock- holder 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. 8 "Shareholder" means each Person (other than the Company but including the Equity Investors and the Management Shareholders) who is or shall become a party to this Agreement, whether in connection with the execution and delivery of the Original Agreement or this Agreement, 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 January 21, 1998 or acquired thereafter, but excluding any Derivatives. "Subscription Agreement" means each Subscription Agreement dated as of January 21, 1998 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 descen dants. 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. 9 "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) 10 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) THL Exchange 3.3 Threshold Percentage 4.1(a) Transfer 3.1(a) Transfer Notice 3.6(a) Trigger Date 6.4 11 ARTICLE II CORPORATE GOVERNANCE AND MANAGEMENT Section 2.1 Composition of the Board. The Board shall consist of at least nine, but no more than ten, 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 four 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 after the execution of this Agreement 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 12 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 Share holder shall vote its shares of Common Stock, and shall take all other actions reason- 13 ably 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 Agree- ment 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 LIMITA- TIONS OR RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT DATED AS OF JANUARY 21, 1998, COPIES OF WHICH 14 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; Exchanges 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. Any THL Entity may at any time exchange (a "THL Exchange") with the Company any or all of its voting Equity Securities on a share-for-share basis for shares of an equivalent class of non-voting Equity Securities of the Company, which non-voting Equity Securities shall have substantially the rights, preferences and limitations as set forth in the form of certificate of designation attached hereto as Exhibit C. The Company agrees to take all such actions, subject to Applicable Law, as are reasonably requested by any THL Entity to effectuate a THL Exchange. 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: 15 (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; 16 (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 17 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 Share- holder'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, (iii) up to the Threshold Percentage or (iv) in a THL Exchange, 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" 18 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 opportu nity 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 19 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 20 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 21 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. 22 (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 (other than the issuance of Equity Securities in connection with a THL Exchange) at least 10 days prior to the proposed 23 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 Section 4.3(a)(i) or (ii) or otherwise, the THL Entities may elect to purchase any or all of their Preemptive Rights Portion in the form of non-voting New Securities on the same terms and conditions as would have been available to purchase shares of voting New Securities. (iv) 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) 24 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 25 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 (other than Equity Securities acquired in a THL Exchange) 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 26 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 27 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 28 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 Share holder); 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 29 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 30 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 31 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 registra tion) 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 32 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 33 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 under- writers 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 sub- stance 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. 34 (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 Share- 35 holder a prospectus supplemented or amended to conform with the require- ments 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 36 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 supple mented prospectus, as the case may be) 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. 37 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 38 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 39 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 partici pate 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. 40 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 41 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 Share- holder (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 42 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 other- wise 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 Stock- 43 holder 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, 44 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. 45 (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 January 21, 2008 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 46 (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 Agree- ment. 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 47 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. 48 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. 49 (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' Represen- tative 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 50 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 contem plated 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 Representa- tive"), 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) 51 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. 52 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 and General Counsel 53 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: 54 THL FSI EQUITY INVESTORS, L.P. By: THL Equity Advisors III Limited Part nership, 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/ Wendy L. Masler --------------------------------------- Name: Wendy L. Masler Title: Management Shareholders: By: /s/ Paul M. Matrone ---------------------------------------- Name: Paul M. Montrone By: /s/ Paul M. Meister ---------------------------------------- Name: Paul M. Meister 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: 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: 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: DLJ DIVERSIFIED PARTNERS, L.P. By: DLJ Diversified Partners, Inc., By: /s/ Kirk B. Wortman ---------------------------------------- Name: Kirk B. Wortman Title: 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: 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: 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: DLJMB FUNDING II, INC. By: /s/ Kirk B. Wortman ---------------------------------------- Name: Kirk B. Wortman Title: UK INVESTMENT PLAN 1997 PARTNERS By: Donaldson, Lufkin & Jenrette Inc., as general partner By: /s/ Kirk B. Wortman ---------------------------------------- Name: Kirk B. Wortman Title: 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: DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Kirk B. Wortman ---------------------------------------- Name: Kirk B. Wortman Title: DLJ FIRST ESC, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Kirk B. Wortman ---------------------------------------- Name: Kirk B. Wortman 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/ Jonas Steinman ---------------------------------------- Name: Jonas Steinman Title: 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: KECALP INC. By: /s/ Edward J. Higgins ---------------------------------------- Name: Edward J. Higgins Title: MERRILL LYNCH KECALP L.P. 1997 By: KECALP Inc., as general partner By: /s/ Edward J. Higgins ---------------------------------------- Name: Edward J. Higgins Title: 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/ Scott M. Sperling ---------------------------------------- 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/ Wendy L. Masler ---------------------------------------- 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 AMENDED AND RESTATED INVESTORS' AGREEMENT COUNTERPART SIGNATURE PAGE By: /s/ Mellon Bank, as Trustee ---------------------------------------- MELLON BANK, NA, as Trustee Mellon Bank, NA, solely in its capacity as Trustee for FISHER SCIENTIFIC INTERNATIONAL INC. TRUST DATED JANUARY 21, 1998 (as directed by FISHER SCIENTIFIC INTERNATIONAL INC.) and not in its individual capacity 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 Wenty 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. EX-8 4 feb1102_ex08.txt Exhibit 8 AMENDMENT NO. 1 TO THE INVESTORS' AGREEMENT This Amendment No. 1, dated as of May 14, 2000, effective as of January 21, 1998 (this "Amendment No. 1"), to the Investors' Agreement, dated as of January 21, 1998, amended and restated as of March 29, 1999 (the "Investors' Agreement"), 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"). W I T N E S S E T H : WHEREAS, the parties hereto desire to amend the Investors' Agreement to clarify the parties' intention with respect to certain management rights of the THL Entities; WHEREAS, the parties had intended at the time of the execution of the Investors' Agreement that THL/FSI would be entitled to nominate one of the four directors to the Board that THL is entitled to nominate pursuant to Section 2.1 of the Investors' Agreement; WHEREAS, pursuant to Section 7.4(a) of the Investors' Agreement, the Board of Directors and the holders of at least 50% of the shares of Common Stock held by the parties to the Investors' Agreement at the time of this Amendment No. 1 are required to approve this Amendment No. 1; and WHEREAS, terms used herein but not otherwise defined herein shall have the respective meanings given such terms in the Investors' Agreement; NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained and other good and valuable consideration, the receipt of which is hereby acknowledged, it is agreed by and between the parties hereto as follows: 1. The first sentence of Section 2.1 of the Investors' Agreement shall be replaced in its entirety with the follow sentence: The Board shall consist of at least nine, but no more than ten, members (two of which shall be individuals which are not "Affiliates" or "Associates" (as those terms are used within the meaning Rule 12b-2 of the General Rules and Regulations under the Exchange Act) of any Shareholder or its Affiliates), of whom three shall be nominated by THL, one shall be nominated by THL/FSI, one shall be nominated by DLJMB, one shall be Paul M. Montrone and one shall be Paul M. Meister. 2 This Amendment No. 1 may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 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/ Wendy L. Masler -------------------------------------------- Name: Wendy L. Masler 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/ Wendy L. Masler -------------------------------------------- Name: Wendy L. Masler 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/ Wendy L. Masler -------------------------------------------- Name: Wendy L. Masler Title: THL-CCI LIMITED PARTNERSHIP By: THL Investment Management Corp., as General Partner By: /s/ Wendy L. Masler -------------------------------------------- Name: Wendy L. Masler Title: Management Shareholders: By: /s/ Paul M. Montrone -------------------------------------------- Name: Paul M. Montrone By: /s/ Paul M. Meister -------------------------------------------- Name: Paul M. Meister By: /s/ Todd M. DuChene -------------------------------------------- Name: Todd M. DuChene 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: 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: 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: DLJ DIVERSIFIED PARTNERS, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: /s/ Kirk B. Wortman -------------------------------------------- Name: Kirk B. Wortman Title: 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: 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: 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: DLJMB FUNDING II, INC. By: /s/ Kirk B. Wortman -------------------------------------------- Name: Kirk B. Wortman Title: UK INVESTMENT PLAN 1997 PARTNERS By: Donaldson, Lufkin & Jenrette Inc., as general partner By: /s/ Kirk B. Wortman -------------------------------------------- Name: Kirk B. Wortman Title: 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: DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Kirk B. Wortman -------------------------------------------- Name: Kirk B. Wortman Title: DLJ FIRST ESC, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Kirk B. Wortman -------------------------------------------- Name: Kirk B. Wortman 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 Merrill Lynch Entities: ML IBK POSITIONS, INC. By: /s/ Joseph S. Valenti -------------------------------------------- Name: Joseph S. Valenti Title: Vice President KECALP INC., as nominee for Merrill Lynch KECALP International L.P. 1997 By: /s/ Edward J. Higgins -------------------------------------------- Name: Edward J. Higgins Title: Vice President MERRILL LYNCH KECALP L.P. 1997 By: KECALP Inc., as general partner By: /s/ Edward J. Higgins -------------------------------------------- Name: Edward J. Higgins Title: Vice President The address for each of the Merrill Lynch Enti ties 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/ Scott M. Sperling ------------------------------------------- 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/ Wendy L. Masler -------------------------------------------- Name: THL-CCI Limited Partnership By: Wendy L. Master Title: Vice President By: /s/ Andrew D. Flaster ------------------------------------------- Name: Andrew D. Flaster By: ------------------------------------------- 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 EX-9 5 feb1102_ex09.txt Exhibit 9 AMENDMENT NO. 2 TO THE INVESTORS' AGREEMENT This Amendment No. 2, dated as of May 2, 2001 (this "Amendment No. 2"), as amended to the Amended and Restated Investors' Agreement, dated as of March 29, 1999 (the "Investors' Agreement"), 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"). W I T N E S S E T H : WHEREAS, the parties hereto desire to amend the Investors' Agreement to clarify the parties' intention with respect to holdback agreements in connection with firmly Underwritten Public Offerings under Section 5.3 of the Investors' Agreement; WHEREAS, pursuant to Section 7.4(a) of the Investors' Agreement, the Board of Directors and the holders of at least 50% of the shares of Common Stock held by the parties to the Investors' Agreement at the time of this Amendment No. 2 are required to approve this Amendment No. 2; WHEREAS, the Equity Investors collectively are holders of at least 50% of the shares of Common Stock held by the parties to the Investors' Agreement at the time of this Amendment No. 2; and WHEREAS, terms used herein but not otherwise defined herein shall have the respective meanings given such terms in the Investors' Agreement. NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained and other good and valuable consideration, the receipt of which is hereby acknowledged, it is agreed by and between the parties hereto as follows: The following shall be added to Section 5.3 of the Investors' Agreement as the second paragraph thereof: In the event that any or all of the Shareholders executes a lock-up agreement in favor of the underwriter or underwriters for an Underwritten Public Offering substantially consistent with the preceding paragraph (each, a "Lock-Up Agreement"), each Equity Investor that executes a Lock-Up Agreement agrees, and their Permitted Transferees will agree, that if it seeks a waiver of the Lock-Up Agreement (a "Waiver Request"), it will notify the other Shareholders that have executed a Lock-Up Agreement at least five days prior to making such Waiver Request that it intends to make a Waiver Request (the "Waiver Notice"). From the date of the Waiver Notice, each Shareholder shall have the right, exercisable by written notice given to the party making the Waiver Request within two Business Days, to request that the Waiver Request include Shares held by the Shareholder and if such a request is made, the Waiver Request shall include all Shares so requested to be included, provided that the Transfer of the Shares requested to be included in the Waiver Request would otherwise be permitted under this Agreement. If the underwriter or underwriters in whose favor the Lock-Up Agreement is given refuses to grant such Waiver Request for all Shares included therein, then each of the Equity Investors agrees, and their Permitted Transferees will agree, that all Lock-Up Agreements will continue in full force and effect. Notwithstanding the foregoing, a Waiver Request may be sought without seeking a waiver of the Lock-Up Agreement for other Shareholders by (1) any of the THL Entities for a Transfer set forth in Section 4.1(a)(ii) and (iv) hereof and (2) any Institutional Shareholder to Transfer Shares to a Permitted Transferee pursuant to Section 3.3(a) hereof. 2 This Amendment No. 2 may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 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 DuChane ------------------------------------ Name: Todd DuChane Title: 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/ Scott Sperling ------------------------------------------- Name: Scott Sperling 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/ Scott Sperling -------------------------------------------- Name: Scott Sperling 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/ Scott Sperling -------------------------------------------- Name: Scott Sperling Title: THL-CCI LIMITED PARTNERSHIP By: THL Investment Management Corp., as General Partner By: /s/ Scott Sperling -------------------------------------------- Name: Scott Sperling Title: DLJ Entities' Shareholders: DLJ MERCHANT BANKING PARTNERS II, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Michael Isikow -------------------------------------------- Name: Michael Isikow Title: Principal DLJ MERCHANT BANKING PARTNERS II-A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Michael Isikow -------------------------------------------- Name: Michael Isikow Title: Principal DLJ OFFSHORE PARTNERS II, C.V. By: DLJ Merchant Banking II, Inc., as advisory general partner By: /s/ Michael Isikow -------------------------------------------- Name: Michael Isikow Title: Principal DLJ DIVERSIFIED PARTNERS, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: /s/ Michael Isikow -------------------------------------------- Name: Michael Isikow Title: Principal DLJ DIVERSIFIED PARTNERS - A, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: /s/ Michael Isikow -------------------------------------------- Name: Michael Isikow Title: Principal DLJ MILLENNIUM PARTNERS, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Michael Isikow -------------------------------------------- Name: Michael Isikow Title: Principal DLJ MILLENNIUM PARTNERS - A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: /s/ Michael Isikow -------------------------------------------- Name: Michael Isikow Title: Principal DLJMB FUNDING II, INC. By: /s/ Michael Isikow -------------------------------------------- Name: Michael Isikow Title: Principal UK INVESTMENT PLAN 1997 PARTNERS By: Donaldson, Lufkin & Jenrette Inc., as general partner By: /s/ Edward Poletti -------------------------------------------- Name: Edward Poletti Title: Senior Vice President and Controller DLJ EAB PARTNERS, L.P. By: DLJ LBO Plans Management Corporation, as managing general partner By: /s/ Edward Poletti -------------------------------------------- Name: Edward Poletti Title: Senior Vice President and Controller DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Edward Poletti -------------------------------------------- Name: Edward Poletti Title: Senior Vice President and Controller DLJ FIRST ESC, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: /s/ Edward Poletti -------------------------------------------- Name: Edward Poletti Title: Senior Vice President and Controller 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/ -------------------------------------------- Name: Title: Address: 380 Madison Avenue New York, NY 10017 ML IBK POSITIONS, INC. By: /s/ Curits W. Cariddi -------------------------------------------- Name: Curits W. Cariddi Title: KECALP INC. By: /s/ Edward J. Higgins -------------------------------------------- Name: Edward J. Higgins Title: Vice President MERRILL LYNCH KECALP L.P. 1997 By: KECALP Inc., as general partner By: /s/ Edward J. Higgins -------------------------------------------- Name: Edward J. Higgins Title: Vice President The address for each of the Merrill Lynch Entities listed above is: 225 Liberty Street, 31st Floor New York, NY 10080 Fax: (212) 236-3496 Individual Shareholders: By: /s/ David V. Harkins -------------------------------------------- Name: David V. Harkins By: /s/ -------------------------------------------- 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/ Scott M. Sperling 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/ Wendy L. Masler -------------------------------------------- Name: THL-CCI Limited Partnership By: Wendy L. Master Title: Vice President By: /s/ Andrew D. Flaster -------------------------------------------- Name: Andrew D. Flaster By: /s/ -------------------------------------------- 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 EX-10 6 feb1102_ex10.txt Exhibit 10 Fisher Scientific International Inc. Common Stock, par value $0.01 per share -------------- Underwriting Agreement February 12, 2002 Goldman, Sachs & Co., Credit Suisse First Boston Corporation, J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, As representatives of the several Underwriters named in Schedule I hereto, c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004. Ladies and Gentlemen: Certain stockholders named in Schedule II hereto (the "Selling Stockholders") of Fisher Scientific International Inc., a Delaware corporation (the "Company"), propose, subject to the terms and conditions stated herein, to sell to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of 6,500,000 shares (the "Firm Shares") and, at the election of the Underwriters, up to 975,000 additional shares (the "Optional Shares") of Common Stock, par value $0.01 per share ("Stock"), of the Company. The Firm Shares and the Optional Shares that the Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the "Shares". 1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters that: (i) A registration statement on Form S-3 (File No. 333-77046) (the "Initial Registration Statement") in respect of the Shares has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), which became effective upon filing, no other document with respect to the Initial Registration Statement or document incorporated by reference therein has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Act is hereinafter called a "Preliminary Prospectus"; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including (i) the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective and (ii) the documents incorporated by reference in the prospectus contained in the Initial Registration Statement at the time such part of the Initial Registration Statement became effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the "Registration Statement"; such final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus"; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Initial Registration Statement that is incorporated by reference in the Registration Statement; (ii) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein; (iii) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to 2 the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein; (iv) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto, and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein; (v) Neither the Company nor any of its subsidiaries that is a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X (collectively, the "Significant Subsidiaries") has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus; (vi) The Company and its Significant Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of the Company and its subsidiaries considered as one enterprise, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and the Significant Subsidiaries; and any real property and buildings held under lease by the Company and its Significant Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries; (vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; and each Significant Subsidiary has been duly incorporated 3 and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; (viii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description of the Stock contained in the Prospectus; and all of the issued shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors' qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims ("Liens"), except for Liens securing borrowings under the Company's Credit Agreement, dated as of January 21, 1998, as amended, and under the Company's 71/8% Senior Notes; (ix) The compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, except for such conflicts, breaches, violations or defaults that would not reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect (as defined below) or materially and adversely affect the consummation of the transactions contemplated by this Agreement; nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except for such violations of statutes, orders, rules or regulations that would not reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect or materially and adversely affect the consummation of the transactions contemplated by this Agreement; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required by the National Association of Securities Dealers, Inc. or under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters; (x) Neither the Company nor any Significant Subsidiary is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except for such violations and defaults that would not, individually or in the aggregate, result in a Material Adverse Effect or materially and adversely affect the consummation of the transactions contemplated by this Agreement; (xi) The statements set forth in the Prospectus under the caption "Description of Capital Stock", insofar as they purport to constitute a summary of the terms of the Stock, and under the caption "Underwriting", insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair in all material respects; (xii) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any 4 property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries considered as one enterprise (a "Material Adverse Effect"); and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (xiii) The Company is not and, after giving effect to the offering and sale of the Shares, will not be an "investment company", as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"); (xiv) Except as disclosed in the Prospectus, as amended or supplemented, (i) the Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, the "Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies, including, without limitation, the United States Food and Drug Administration (the "FDA") necessary to conduct their respective businesses, except where the failure to obtain such licenses would not, individually or in the aggregate, result in a Material Adverse Effect, (ii) the Company and its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, individually or in the aggregate, result in a Material Adverse Effect, (iii) all the Governmental Licenses are valid and in full force and effect, except where the invalidity or the failure of the Governmental License to be in full force and effect would not result in a Material Adverse Effect, (iv) the Company has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses that, if so revoked, would result in a Material Adverse Effect and (v) the Company and its subsidiaries are conducting their respective businesses in compliance with all applicable published policies and guidelines and orders administered or issued by any governmental or regulatory agency having jurisdiction over the affairs of the Company and its subsidiaries, including, without limitation, the FDA, except for such failures to be so in compliance which would not, individually or in the aggregate, have a Material Adverse Effect; (xv) Except as disclosed in the Prospectus, as amended or supplemented, (i) the Company and its subsidiaries own or possess, or can acquire on reasonable terms, all patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, domain names and trade names, or other intellectual property, used in the conduct of the Company's business as described in the Prospectus and (ii) the Company has not received any notice of any claim of conflicts with any such rights of others, except as would not have a Material Adverse Effect; (xvi) The Company and its subsidiaries are not in violation of any statute, or any rule, regulation, decision or order of any governmental agency or body or any court relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), do not own or operate any real property which to their respective knowledge is contaminated with any substance that is subject to environmental laws except as otherwise disclosed in the Prospectus, as amended or supplemented, are not to their respective knowledge liable for any off-site disposal or contamination pursuant to any environmental laws except as otherwise disclosed in the Prospectus, as amended or supplemented, and are not subject to any claim relating to any environmental laws except as otherwise disclosed in the Prospectus, as amended or supplemented, which violation, contamination, liability or claim would have, individually or in the aggregate, a 5 material adverse effect on the Company's business; and the Company is not aware of any pending investigation which could reasonably be expected to lead to such a claim; (xvii) There are no persons with registration or other similar rights to have any equity or debt securities of the Company registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly compiled with or waived; and (xviii) Deloitte & Touche LLP, who have certified certain consolidated financial statements of the Company and certain combined financial statements of Cole-Parmer Instrument Company and Affiliates (collectively, "Cole-Parmer"), and Warady & Davis LLP, who have certified certain combined financial statements of Cole-Parmer, are each independent public accountants as required by the Act and the rules and regulations of the Commission thereunder. (b) Each of the Selling Stockholders severally represents and warrants to, and agrees with, each of the Underwriters and the Company that: (i) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder of this Agreement and the Power of Attorney and the Custody Agreement hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling Stockholder hereunder, have been obtained, except that such Selling Stockholder makes no representation or warranty with respect to such consents, approvals, authorizations or orders as may be required (i) under the Act or the Exchange Act, (ii) under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, (iii) by the NASD, or (iv) under the federal or provincial laws of Canada or under the laws of any other foreign jurisdiction in which the Shares may be offered and sold; and such Selling Stockholder has full right, power and authority to enter into this Agreement, the Power-of-Attorney and the Custody Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder; (ii) The sale of the Shares to be sold by such Selling Stockholder hereunder and the compliance by such Selling Stockholder with all of the provisions of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict in a material way with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, nor will such action result in any material violation of the provisions of the Certificate of Incorporation or By-laws of such Selling Stockholder (if such Selling Stockholder is a corporation), the Partnership Agreement of such Selling Stockholder (if such Selling Stockholder is a partnership) or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder; (iii) Such Selling Stockholder (or in the case of DLJ Offshore Partners II C.V., its general partners) has, and immediately prior to each Time of Delivery (as defined in Section 4 hereof) such Selling Stockholder (or in the case of DLJ Offshore Partners II C.V., its general partners) will have, valid title to the Shares to be sold by such Selling Stockholder hereunder, free and clear of all liens, encumbrances, equities or claims (other than encumbrances, equities and claims under the Power of Attorney and Custody Agreement); and, upon delivery of such Shares and payment therefor pursuant hereto, valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters; 6 (iv) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, such Selling Stockholder shall not offer, sell contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than pursuant to employee stock options plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of Goldman, Sachs & Co.; provided, however, that such Selling Stockholder may transfer such securities to a Permitted Transferee, as defined in, and pursuant to the terms of, the Amended and Restated Investors' Agreement, as amended, among the Company and certain of its stockholders, so long as such Permitted Transferee agrees in writing to be bound by the provisions of this clause (iv); (v) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (vi) To the extent that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein, such statements as they appeared in such Preliminary Prospectus and the Registration Statement did, and such statements as they appear in the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus, when they become effective or are filed with the Commission, as the case may be, will, conform in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and will not contain any 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; it is understood and agreed that the only written information furnished to the Company by each Selling Stockholder expressly for use in the Registration Statement, any Preliminary Prospectus and the Prospectus is the information relating to such Selling Stockholder set forth under the caption "Principal and Selling Stockholders" therein (but not the percentages set forth therein); (vii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof); (viii) Certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "Custody Agreement"), duly executed and delivered by such Selling Stockholder to the Company, as custodian (the "Custodian"), and such Selling Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the "Power of Attorney"), appointing the persons named therein, and each of them, as such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 2 hereof, to authorize the Attorneys-in-Fact to deliver the Shares to be sold by such Selling Stockholder hereunder, to authorize the Custodian to receive payment for such Shares on behalf of such Selling Stockholder and otherwise to act on behalf of 7 such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement (in each case subject to the conditions contained in the Power of Attorney); and (ix) The Shares represented by the certificates held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters hereunder. 2. Subject to the terms and conditions herein set forth, each of the Selling Stockholders agrees, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from each of the Selling Stockholders, at a purchase price per share of $25.85, the number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by each of the Selling Stockholders as set forth opposite their respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from all of the Selling Stockholders hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, each of the Selling Stockholders agrees, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Selling Stockholders, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder. The Selling Stockholders, as and to the extent indicated in Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters the right to purchase at their election up to 975,000 Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering over-allotments in the sale of the Firm Shares. In connection with any such election to purchase Optional Shares each Selling Stockholder shall sell a number of Optional Shares (subject to adjustment for fractional shares) that bears the same proportion to the total number of Optional Shares being sold at such Time of Delivery as its Firm Shares bear to the total number of Firm Shares. Any such election to purchase Optional Shares may be exercised only by written notice from you to the Company, the Selling Stockholders and the Attorneys-in-Fact, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten business days after the date of such notice. 3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus. 4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in such authorized denominations and registered in such names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior notice to the Company and the Selling Stockholders shall be delivered by or on behalf of the Selling Stockholders to Goldman, Sachs & Co., through the 8 facilities of The Depository Trust Company ("DTC"), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account or accounts specified by the Custodian to Goldman, Sachs & Co. at least forty-eight hours in advance. The Company will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the "Designated Office"). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City time, on February 19, 2002, or such other time and date as Goldman, Sachs & Co., the Company and the Selling Stockholders may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the Underwriters' election to purchase such Optional Shares, or such other time and date as Goldman, Sachs & Co., the Company and the Selling Stockholders may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the "First Time of Delivery", such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the "Second Time of Delivery", and each such time and date for delivery is herein called a "Time of Delivery". (b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices of Hale and Dorr LLP, 300 Park Avenue, New York, N.Y. 10022 (the "Closing Location"), and the Shares will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at 4:00 p.m., New York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. 5. The Company agrees with each of the Underwriters: (a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or Prospectus prior to the last Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order; 9 (b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (c) Prior to 10:00 A.M., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; (d) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); (e) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than (i) pursuant to employee stock option plans existing on the date of this Agreement or (ii) upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement), without the prior written consent of Goldman, Sachs & Co.; (f) To furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; 10 (g) During a period of three years from the effective date of the Registration Statement, to furnish to Goldman, Sachs & Co. on behalf of the Underwriters copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to Goldman, Sachs & Co on behalf of the Underwriters (i) as soon as they are available, copies of any reports and financial statements (other than confidential submissions) furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission); (h) To use its best efforts to list, subject to notice of issuance, the Shares on the New York Stock Exchange (the "Exchange"); (i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and (j) Upon request of any representative, to furnish, or cause to be furnished, to such representative an electronic version of the Company's trademarks, servicemarks and corporate logo for use on the website, if any, operated by such representative for the purpose of facilitating the on-line offering of the Shares (the "License") as contemplated by this Agreement; provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred. 6. The Company and each of the Selling Stockholders covenant and agree with one another and with the several Underwriters that (a) the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Shares under the Act and all other expenses (including filing fees) in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any reasonable compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 5(b) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) all fees and expenses in connection with listing the Shares on the New York Stock Exchange; (v) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, securing any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and charges of any transfer agent or registrar; (viii) all its internal expenses and other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; (ix) all fees and expenses of up to one counsel for the Selling Stockholders; and (x) the Selling Stockholders' fees and expenses of the Custodian and the Attorneys-in-Fact and (b) such Selling Stockholder will pay or cause to be paid all costs and expenses incident to the performance of such Selling Stockholder's obligations hereunder which are not otherwise specifically provided for in this Section, including all expenses and taxes incident to the sale and delivery of the Shares to be 11 sold by such Selling Stockholder to the Underwriters hereunder (except to the extent such costs and expenses constitute Registration Expenses as defined in the Investors' Agreement, in which case the Company shall bear such expenses). In connection with clause (b) of the preceding sentence, Goldman, Sachs & Co. agrees to pay New York State stock transfer tax, and each Selling Stockholder agrees to reimburse Goldman, Sachs & Co. for associated carrying costs if such tax payment is not rebated on the day of payment and for its pro rata share of any portion of such tax payment not rebated. It is understood, however, that the Company shall bear, and the Selling Stockholders shall not be required to pay or to reimburse the Company for, the cost of any other matters not directly relating to the sale and purchase of the Shares pursuant to this Agreement, and that, except as provided in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make. 7. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) Hale and Dorr LLP, counsel for the Underwriters, shall have furnished to you their written opinion, substantially in the form of Annex II(a) hereto, dated such Time of Delivery, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon the matters covered by such opinion; (c) (i) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company, shall have furnished to you their written opinion, substantially in the form of Annex II(b) hereto, dated such Time of Delivery, (ii) Todd M. DuChene, Vice President, General Counsel and Secretary of the Company, shall have furnished to you his written opinion, substantially in the form of Annex II(c) hereto, dated such Time of Delivery; and (iii) the respective counsel for each of the Selling Stockholders, as indicated in Schedule II hereto, each shall have furnished to you their written opinion with respect to each of the Selling Stockholders for whom they are acting as counsel, substantially in the form of Annex II(d) hereto, dated such Time of Delivery; (d) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Deloitte & Touche LLP and Warady & Davis LLP shall have furnished to you letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto (the executed copy of each letter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a draft of the form of each letter to be delivered on the effective date of any 12 post-effective amendment to the Registration Statement and as of each Time of Delivery is attached as Annex I(b) hereto); (e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (f) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities; (g) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company's securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in this clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (h) The Shares to be sold at such Time of Delivery shall have been duly listed, subject to notice of issuance, on the Exchange; (i) The Company shall have obtained and delivered to the Underwriters executed copies of a "lock-up" agreement, in substantially the form of Annex III hereto, from each of its stockholders listed on Schedule III hereto; (j) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and (k) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and each Selling Stockholder, respectively, satisfactory to you as to the accuracy of the representations and warranties of the 13 Company or such Selling Stockholder, as the case may be, herein at and as of such Time of Delivery, as to the performance by the Company or such Selling Stockholder, as the case may be, of all of its obligations hereunder to be performed at or prior to such Time of Delivery, in the case of the Company, as to the matters set forth in subsections (a) and (f) of this Section, and as to such other matters as you may reasonably request. 8. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. expressly for use therein. (b) Each Selling Stockholder, severally and not jointly, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein; and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that such Selling Stockholder shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. expressly for use therein; provided, further, that the liability of a Selling Stockholder pursuant to this subsection (b) shall not exceed the product of the number of Shares sold by such Selling Stockholder and the public offering price of the Shares as set forth in the Prospectus. (c) Each Underwriter will indemnify and hold harmless the Company and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of 14 or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through Goldman, Sachs & Co. expressly for use therein; and will reimburse the Company and each Selling Stockholder for any legal or other expenses reasonably incurred by the Company or such Selling Stockholder in connection with investigating or defending any such action or claim as such expenses are incurred. (d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. (e) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Stockholders on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Stockholders on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in 15 the table on the cover page of the Prospectus. The relative fault 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 or the Selling Stockholders on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, each of the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include 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 subsection (e), (i) no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the 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 (ii) no Selling Stockholder shall be required to contribute any amount in excess of the product of the number of Shares sold by such Selling Stockholder and the public offering price of the Shares as set forth in the Prospectus. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint. (f) The obligations of the Company and the Selling Stockholders under this Section 8 shall be in addition to any liability which the Company and the respective Selling Stockholders may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company and each Selling Stockholder within the meaning of the Act. 9. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Company and the Selling Stockholders shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company and the Selling Stockholders that you have so arranged for the purchase of such Shares, or the Company and the Selling Stockholders notify you that they have so arranged for the purchase of such Shares, you or the Selling Stockholders shall have the right to postpone such Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Shares. 15 (b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you, the Company and the Selling Stockholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the Selling Stockholders shall have the right to require each non-defaulting Underwriter to purchase the number of shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Selling Stockholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, or if the Selling Stockholders shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Selling Stockholders to sell the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter, the Company or the Selling Stockholders, except for the expenses to be borne by the Company, the Selling Stockholders and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 10. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Selling Stockholders and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any Selling Stockholder, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Shares. 11. If this Agreement shall be terminated pursuant to Section 9 hereof, neither the Company nor the Selling Stockholders shall then be under any liability to any Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other reason, any Shares are not delivered by or on behalf of the Selling Stockholders as provided herein, the Company will reimburse the Underwriters through Goldman, Sachs & Co. for all out-of-pocket expenses approved in writing by Goldman, Sachs & Co., including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling Stockholders shall then be under no further liability to any Underwriter in respect of the Shares not so delivered except as provided in Sections 6 and 8 hereof. 12. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly or by Goldman, Sachs & Co. on behalf of you as the representatives and in all dealings with any Selling Stockholder hereunder, you and the Company shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling Stockholder made or given by any or all of the Attorneys-of-Fact for such Selling Stockholder. 17 All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the representatives in care of Goldman, Sachs & Co., 32 Old Slip, 21st Floor, New York, New York 10005, Attention: Registration Department; if to any Selling Stockholder shall be delivered or sent by mail, telex or facsimile transmission to counsel for such Selling Stockholder at its address set forth in Schedule II hereto; and if to the Company shall be delivered or sent by mail to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company or the Selling Stockholders by you upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 13. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Selling Stockholders and, to the extent provided in Sections 8 and 10 hereof, the officers and directors of the Company and each person who controls the Company, any Selling Stockholder or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 14. Time shall be of the essence of this Agreement. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 15. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. 16. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. 17. The Company and the Selling Stockholders are authorized, subject to applicable law, to disclose any and all aspects of this potential transaction that are necessary to support any U.S. federal income tax benefits expected to be claimed with respect to such transaction, without the Underwriters imposing any limitation of any kind. 18 If the foregoing is in accordance with your understanding, please sign and return to us one for the Company and each of the Representatives plus one for each counsel counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement between each of the Underwriters, the Company and each of the Selling Stockholders. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company and the Selling Stockholders for examination upon request, but without warranty on your part as to the authority of the signers thereof. Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such action. Very truly yours, Fisher Scientific International Inc. By: /s/ Todd M. DuChene .................................. Name: Todd M. DuChene Title: As Attorney-in-Fact acting on behalf on each of the Selling Stockholders named in Schedule II to this Agreement. 19 Thomas H. Lee Equity Fund III, L.P. THL FSI Equity Investors L.P. THL Foreign Fund III THL-CCI Limited Partnership David V. Harkins 1995 Harkins Gift Trust Scott M. Sperling Sperling Family Limited Partnership Anthony J. DiNovi Kent R. Weldon Thomas R. Shepherd Money Purchase Pension Plan Scott A. Schoen C. Hunter Boll Thomas M. Hagerty Warren C. Smith, Jr. Seth W. Lawry Joseph J. Incandela Terrence M. Mullen Todd M. Abbrect Charles A. Brizius Wendy L. Masler Andrew D. Flaster First Trust Co. FBO Kristina A. Watts Charles W. Robins James Westra DLJ Merchant Banking Partners II, L.P. DLJMB Funding II, Inc. DLJ ESC II L.P. DLJ Diversified Partners, L.P. DLJ Offshore Partners II, C.V. DLJ Merchant Banking Partners-II-A, L.P. UK Investment Plan 1997 Partners DLJ Millennium Partners, L.P. DLJ Diversified Partners-A, L.P. DLJ EAB Partners, L.P. DLJ Millennium Partners-A, L.P. DLJ First ESC L.P. J.P. Morgan Partners (BHCA), L.P. Merrill Lynch KECALP L.P. 1997 KECALP INC. ML IBK Positions, Inc. Paul M. Montrone Paul M. Meister David T. Della Penta 20 Kevin P. Clark Todd M. DuChene Michael Brown Robert Forte Jeffrey Gleason Kenneth J. Hessler Bradley Mahood Carolyn Miller Paul Patek Neil Perlman Charles Rohlmeier John R. Sasso Carlton G. Stott Albert Strausser II Steven Shulman Michael Toner By /s/ Todd M. DuChene ..................................... Name: Todd M. DuChene Title: As Attorney-in-Fact acting on behalf on each of the Selling Stockholders named in Schedule II to this Agreement. 21 Accepted as of the date hereof: Goldman, Sachs & Co. Credit Suisse First Boston Corporation, J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, By: /s/ Goldman, Sachs & Co. ............................................... (Goldman, Sachs & Co.) On behalf of each of the Underwriters 22 SCHEDULE I Number of Optional Shares to be Total Number of Purchased if Firm Shares Maximum Option Underwriter to be Purchased Exercised ----------- --------------- ------------------ Goldman, Sachs & Co...................... Credit Suisse First Boston Corporation... J.P. Morgan Securities Inc. ............. Merrill Lynch, Pierce, Fenner & Smith Incorporated........................... Morgan Stanley & Co. Incorporated........ --------- ------- Total........ 6,500,000 975,000 ========= ======= I-1 SCHEDULE II Total Number of Total Number of Firm Shares Optional Shares to be Sold to be Sold --------------- --------------- Thomas H. Lee Equity Fund III, L.P.(a)......... 2,175,855 THL FSI Equity Investors L.P.(a)............... 1,093,187 THL Foreign Fund III (a)....................... 134,635 THL-CCI Limited Partnership (a)................ 134,001 David V. Harkins(a)............................ 16,251 1995 Harkins Gift Trust(a)..................... 1,806 Scott M. Sperling(a)........................... 5,418 Sperling Family Limited Partnership(a)......... 3,611 Anthony J. DiNovi(a)........................... 9,029 Kent R. Weldon(a).............................. 1,354 Thomas R. Shepherd Money Purchase Pension Plan(a)...................................... 5,642 Scott A. Schoen(a)............................. 10,834 C. Hunter Boll(a).............................. 10,834 Thomas M. Hagerty(a)........................... 9,029 Warren C. Smith, Jr.(a)........................ 9,029 Seth W. Lawry(a)............................... 2,707 Joseph J. Incandela(a)......................... 2,256 Terrence M. Mullen(a).......................... 677 Todd M. Abbrect(a)............................. 677 Charles A. Brizius(a).......................... 677 Wendy L. Masler(a)............................. 375 Andrew D. Flaster(a)........................... 375 First Trust Co. FBO Kristina A. Watts(a)....... 375 Charles W. Robins(a)........................... 375 James Westra(a)................................ 375 DLJ Merchant Banking Partners II, L.P.(b)...... 688,626 DLJMB Funding II, Inc.(b)...................... 122,263 DLJ ESC II L.P.(b)............................. 129,857 DLJ Diversified Partners, L.P.(b).............. 40,260 DLJ Offshore Partners II, C.V.(b).............. 33,863 DLJ Merchant Banking Partners-II-A, L.P.(b).... 27,424 UK Investment Plan 1997 Partners(b)............ 18,220 DLJ Millennium Partners, L.P.(b)............... 11,134 DLJ Diversified Partners-A, L.P.(b)............ 14,951 DLJ EAB Partners, L.P.(b)...................... 3,092 DLJ Millennium Partners-A, L.P.(b)............. 2,172 DLJ First ESC L.P.(b).......................... 1,325 J.P. Morgan Partners (BHCA), L.P.(c)........... 728,791 Merrill Lynch KECALP L.P. 1997(d).............. 175,795 KECALP INC.(d)................................. 33,485 ML IBK Positions, Inc.(e)...................... 9,358 Paul M. Montrone(a)............................ 370,000 Paul M. Meister(a)............................. 240,000 David T. Della Penta(a)........................ 15,000 II-1 Kevin P. Clark(a).............................. 19,000 Todd M. DuChene(a)............................. 18,783 Michael Brown(a)............................... 6,411 Robert Forte(a)................................ 23,400 Jeffrey Gleason(a)............................. 19,844 Kenneth J. Hessler(a).......................... 2,028 Bradley Mahood(a).............................. 6,005 Carolyn Miller(a).............................. 1,989 Paul Patek(a).................................. 25,135 Neil Perlman(a)................................ 13,737 Charles Rohlmeier(a)........................... 2,477 John R. Sasso(a)............................... 38,664 Carlton G. Stott(a)............................ 1,886 Albert Strausser II(a)......................... 3,013 Steven Shulman(a).............................. 10,000 Michael Toner(a)............................... 12,628 --------- 6,500,000 ========= - ------------- (a) This Selling Stockholder is represented by Skadden, Arps, Slate, Meagher & Flom LLP. (b) This Selling Stockholder is represented by David Polk & Wardwell. (c) This Selling Stockholder is represented by O'Sullivan LLP. (d) This Selling Stockholder is represented by Saurabh Shah, Esq., Senior Counsel in the Office of General Counsel of Merrill Lynch & Co., Inc. (e) This Selling Stockholder is represented by Matthew Hirshfield, Esq., Senior Counsel in the Office of General Counsel of Merrill Lynch & Co., Inc. II-1 SCHEDULE III Persons Subject to Lock-Up -------------------------- Mitchell J. Blutt, M.D. Robert A. Day Michael D. Dingman III-1 ANNEX I Pursuant to Section 7(e) of the Underwriting Agreement, the accountants shall furnish letters to the Underwriters to the effect that: (i) They are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the applicable published rules and regulations thereunder; (ii) In their opinion, the financial statements and any supplementary financial information and schedules (and, if applicable, financial forecasts and/or pro forma financial information) examined by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act or the Exchange Act, as applicable, and the related published rules and regulations thereunder; and, if applicable, they have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the consolidated interim financial statements, selected financial data, pro forma financial information, financial forecasts and/or condensed financial statements derived from audited financial statements of the Company for the periods specified in such letter, as indicated in their reports thereon, copies of which have been separately furnished to the representatives of the Underwriters (the "Representatives"); (iii) They have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus and/or included in the Company's quarterly report on Form 10-Q incorporated by reference into the Prospectus as indicated in their reports thereon copies of which have been separately furnished to the Representative; and on the basis of specified procedures including inquiries of officials of the Company who have responsibility for financial and accounting matters regarding whether the unaudited condensed consolidated financial statements referred to in paragraph (vi)(A)(i) below comply as to form in the related in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations, nothing came to their attention that caused them to believe that the unaudited condensed consolidated financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (iv) The unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included in the Prospectus and included or incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for such five fiscal years which were included or incorporated by reference in the Company's Annual Reports on Form 10-K for such fiscal years; (v) They have compared the information in the Prospectus under selected captions with the disclosure requirements of Regulation S-K and on the basis of limited procedures specified in such letter nothing came to their attention as a result of the foregoing procedures that caused them to believe that this information does not conform in all material respects with A-1 the disclosure requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K; (vi) On the basis of limited procedures, not constituting an examination in accordance with generally accepted auditing standards, consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that: (A) (i) the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus and/or included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations, or (ii) any material modifications should be made to the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus or included in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus, for them to be in conformity with generally accepted accounting principles; (B) any other unaudited income statement data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (C) the unaudited financial statements which were not included in the Prospectus but from which were derived the unaudited condensed financial statements referred to in clause (A) and any unaudited income statement data and balance sheet items included in the Prospectus and referred to in clause (B) were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (D) any unaudited pro forma consolidated condensed financial statements included or incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the published rules and regulations thereunder or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; (E) as of a specified date not more than five days prior to the date of such letter, there have been any changes in the consolidated capital stock (other than A-2 issuances of capital stock upon exercise of options and stock appreciation rights, upon earn-outs of performance shares and upon conversions of convertible securities, in each case which were outstanding on the date of the latest balance sheet included or incorporated by reference in the Prospectus) or any increase in the consolidated long-term debt of the Company and its subsidiaries, or any decreases in consolidated net current assets or stockholders' equity or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (F) for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in clause (E) there were any decreases in consolidated net revenues or operating profit or the total or per share amounts of consolidated net income or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Representatives, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (vii) In addition to the examination referred to in their report(s) included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Representatives which are derived from the general accounting records of the Company and its subsidiaries, which appear in the Prospectus (excluding documents incorporated by reference) or in Part II of, or in exhibits and schedules to, the Registration Statement specified by the Representatives or in documents incorporated by reference in the Prospectus specified by the Representatives, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement. A-3 ANNEX II (a) Pursuant to Section 7(b) of the Underwriting Agreement, attached is the form of legal opinion to be provided by Hale and Dorr LLP. (b) Pursuant to Section 7(c) of the Underwriting Agreement, attached is the form of legal opinion to be provided by Skadden, Arps, Slate, Meagher & Flom LLP. (c) Pursuant to Section 7(c) of the Underwriting Agreement, attached is the form of legal opinion to be provided by Todd M. DuChene, Vice President, General Counsel and Secretary of the Company. A-4 EX-11 7 feb1902_ex11.txt Exhibit 11 Fisher Scientific International Inc. Common Stock, par value $0.01 per share -------------- Custody Agreement ----------------- Fisher Scientific International Inc. One Liberty Lane Hampton, New Hampshire 03842 Ladies and Gentlemen: The undersigned delivers to you as Custodian herewith one or more certificates representing shares of the issued and outstanding common stock, $0.01 par value per share (the "Common Stock"), of Fisher Scientific International Inc. (the "Company") and/or option agreements exercisable for shares of Common Stock described on Schedule I to this Custody Agreement (the certificate and/or option agreements being referred to collectively as the "Common Certificates"). Each certificate representing shares of Common Stock delivered herewith shall be delivered in negotiable deliverable form (a) with signatures guaranteed by an Eligible Guarantor Institution which is a member of a Medallion Signature Guarantee Program recognized by the Stock Transfer Association or (b) accompanied by a duly executed stock power or powers attached as Schedule II, in blank, bearing the signature of the undersigned so guaranteed. Each option agreement delivered herewith shall be delivered with a notice of exercise (the "Notice of Exercise"), executed in blank, in the form attached as Schedule III. The Common Certificates delivered herewith will represent at least as many shares of Common Stock as the number of shares of Common Stock indicated below the signature of the undersigned at the end of this letter, such number of shares of Common Stock so indicated being the maximum aggregate number of shares of Common Stock (the "Maximum Number") that the undersigned will agree to sell to the Underwriters (as defined below) pursuant to the Underwriting Agreement (as defined below) (including pursuant to any over-allotment option). The Common Certificates are to be held by you as Custodian for the account of the undersigned and are to be disposed of by you in accordance with this Custody Agreement. Concurrently with the execution and delivery of this Custody Agreement, the undersigned has executed an irrevocable power of attorney ("Power of Attorney") to Todd M. DuChene and Kevin P. Clark, or their duly designated substitutes (individually, an "Attorney" and, collectively, the "Attorneys"), authorizing the Attorneys, or any one of them, inter alia, to sell at the applicable Time of Delivery (as defined in the Underwriting Agreement) from the number of shares of Common Stock held by you hereunder, that number of shares of Common Stock specified to you in writing by an Attorney (but not in excess of the Maximum Number) and for that purpose to enter into and perform an Underwriting Agreement (the "Underwriting Agreement"), among the Company, the Selling Stockholders (as defined in the Underwriting Agreement) and the underwriters (the "Underwriters") for whom Goldman, Sachs & Co., Credit Suisse First Boston Corporation, J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. Incorporated, are acting as representatives (the "Representatives"). The undersigned has received and carefully reviewed a draft dated January 31, 2002 of the Underwriting Agreement and understands that the draft of the Underwriting Agreement is subject to completion and further revision before execution, subject to the limits set forth in the Power of Attorney. The undersigned agrees to deliver to the Attorneys, or to you, such additional documentation as the Attorneys, or any one of them, or the Company, or the Representatives, or you, or any of their respective counsel may reasonably request to effectuate or confirm compliance with any of the provisions hereof or of the Underwriting Agreement, all of the foregoing to be in form and substance satisfactory in all respects to the Attorneys and you. You are authorized and directed (a) to hold the Common Certificates deposited with you hereunder in your custody, (b) to deliver to the Company the Notice of Exercise, if any, on behalf of the undersigned when directed to do so by the Attorneys and (c) on the applicable Time of Delivery specified in the Underwriting Agreement and as notified to you by the Company, to take all necessary action (i) to cause the transfer agent and registrar for the Common Stock to cause the number of shares of Common Stock to be sold by the undersigned to be transferred on the books of the Company into such names as the Attorneys, or any one of them, or the Representatives shall have instructed you and to exchange the Common Certificates representing such shares for new certificates for such shares registered in such names and in such denominations as the Attorneys, or any one of them, or the Representatives shall have instructed you, (ii) to deliver such new certificates to the Underwriters against payment for such shares, and give receipt for such payment, and (iii) when instructed by an Attorney to do so, to remit to the undersigned in accordance with the payment instructions set forth in Schedule IV hereto the amount received by you as payment for such shares (net of underwriting discounts and commissions and expenses payable by the undersigned to the Company). Promptly after (a) the First Time of Delivery, you shall deliver or cause to be delivered to the undersigned new certificates (which shall bear appropriate legends) representing the number of shares of Common Stock (if any) represented by the Common Certificates deposited herewith that are in excess of the maximum number of shares (the "Excess Shares") of Common Stock that could be sold by the undersigned to the Underwriters pursuant to the Underwriting Agreement, including as a result of the exercise of the over-allotment option, and (b) the earlier of (i) the Time of Delivery at which all remaining shares of Common Stock subject to the Underwriting Agreement are purchased by the Underwriters and (ii) the last time at which the Underwriters are permitted to exercise their over-allotment option passes, you shall deliver or cause to be delivered to the undersigned new certificates (which shall bear appropriate legends) representing the number of shares of Common Stock (if any) represented by the Common Certificates deposited herewith that are Excess Shares, in the case of clause (a), or in excess of the number of shares of Common Stock sold by the undersigned to the Underwriters pursuant to the Underwriting Agreement, in the case of clause (b). If the Underwriting Agreement shall not be executed and delivered and the transactions contemplated thereby consummated on or prior to March 31, 2002, then, upon the written request of the undersigned to you on or after that date, you are to return to the undersigned or as the undersigned may otherwise direct the Common Certificates deposited with you hereunder, and this Custody Agreement shall forthwith terminate. -2- Under the terms of the Power of Attorney, the authority conferred thereby is granted, made and conferred subject to and in consideration of the interests of the Underwriters and the other Selling Stockholders and, except as set forth in the preceding paragraph, is coupled with an interest and is irrevocable and, except as set forth herein or in the Power of Attorney, is not subject to termination by the undersigned or by operation of law, and the obligations of the undersigned as a Selling Stockholder under the Underwriting Agreement similarly are not subject to termination and shall remain in full force and effect until such date. Accordingly, the Common Certificates deposited with you hereunder and this Custody Agreement and your authority hereunder are subject to the interests of the Underwriters, and this Custody Agreement and your authority hereunder are irrevocable and are not subject to termination by the undersigned (except as set forth in the preceding paragraph) or by operation of law, whether by the death or incapacity of the undersigned (if the undersigned is an individual), the death of any trustee or executor or the termination of any trust or estate (if the undersigned is a trust or estate), the dissolution or liquidation of any corporation or partnership (if the undersigned is a corporation or partnership), or the occurrence of any other event. If any event referred to in the preceding sentence should occur before the delivery of the shares of Common Stock to be sold by the undersigned under the Underwriting Agreement, certificates for such Common Stock shall be delivered by you on behalf of the undersigned in accordance with the terms and conditions of the Underwriting Agreement, as specified to you by the Attorneys, and this Custody Agreement, and action taken by you pursuant to this Custody Agreement shall be as valid as if such event had not occurred, whether or not you or the Attorneys, or any one of them, shall have received notice of such event. Until payment of the purchase price (net of the underwriting discount to the Underwriters) for the shares of Common Stock to be sold by the undersigned to the Underwriters pursuant to the Underwriting Agreement has been made to you by or for the account of the Underwriters, the undersigned shall (i) remain the owner of such shares and shall have (to the full extent the undersigned would otherwise have) the right to vote such shares and all other shares of Common Stock represented by the Common Certificates deposited with you hereunder and to receive all dividends and distributions thereon and (ii) remain entitled to the rights set forth in any option agreement deposited with you hereunder. Upon payment of the purchase price by the Underwriters, you shall pay to the undersigned the net proceeds of the sale (net of any expenses payable by the undersigned to the Company, which expenses you shall pay to the Company), except that with respect to any option agreement that is being exercised in connection with this Custody Agreement, you shall pay to the Company that portion of the purchase price that represents the aggregate exercise price relating to the shares of Common Stock being sold, plus any amounts required to satisfy any tax withholding amounts, with the balance of the proceeds being delivered to the undersigned in accordance with the instructions in Schedule IV. The Attorneys and the Company will be responsible for the calculation of any amounts to be delivered to the Company and will deliver to you a schedule upon which you will be entitled to rely conclusively. You shall be entitled to act and rely upon any statement, request, notice or instructions respecting this Custody Agreement given to you by the Attorneys, or any one of them or the Representatives; provided, however, that you shall not be entitled to act on any statement or notice to you with respect to any Time of Delivery under the Underwriting Agreement, or with respect to the termination of the Underwriting Agreement, or advising that the Underwriting Agreement has not been executed and delivered, unless such statement or notice shall have been confirmed in writing to you by the Representatives. -3- It is understood that you assume no responsibility or liability to any person other than to administer the Common Certificates deposited with you hereunder and the proceeds from the sale of the shares of Common Stock represented thereby in accordance with the provisions of this Custody Agreement. It is understood that you shall serve without compensation. The undersigned has carefully reviewed the representations, warranties, statements and agreements to be made by the undersigned as a Selling Stockholder in the Underwriting Agreement and this Custody Agreement and does hereby represent, warrant and agree that (a) such representations, warranties, statements and agreements insofar as they relate to the undersigned, are and will be true and correct as of the date hereof and as of the date of the Underwriting Agreement and will be true and correct at all times through the applicable Time of Delivery specified in the Underwriting Agreement at which the undersigned is selling shares of Common Stock and (b) such agreements, insofar as they relate to the undersigned, have (where applicable) been and will be complied with as of the date hereof and as of the date of the Underwriting Agreement and will be complied with on and after the applicable Time of Delivery. The foregoing representations, warranties and agreements and those contained in the Underwriting Agreement are made for the benefit of, and may be relied upon by, the Underwriters, the Custodian (in its capacity as such), and agents and counsel of each of the foregoing. No party may assign any of its rights or obligations under this Custody Agreement without the written consent of all the other parties, which consent may be withheld in the reasonable discretion of the party whose consent is sought. This Custody Agreement may be modified only by a written amendment signed by all the parties hereto, and no waiver of any provision hereof shall be effective unless expressed in a writing signed by the party to be charged. All notices, instructions, reports and other communications to be given or made under this Custody Agreement shall be deemed given or made upon receipt and shall be sent by first-class mail, postage prepaid or, if given by telephone or facsimile, shall immediately be confirmed by first-class mail, postage prepaid: (a) to the Custodian at: One Liberty Lane Hampton, NH 03842 Attn: Todd M. DuChene Telephone: (603) 926-5911 Facsimile: (603) 926-5661 (b) to the undersigned at the address set forth on the signature page hereto. (c) to the Attorneys at: Fisher Scientific International Inc. One Liberty Lane Hampton, NH 03842 -4- Telephone: (603) 926-5911 Facsimile: (603) 926-5661 The Custodian undertakes to perform only such duties as are expressly set forth herein. The Custodian may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Custodian shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. The Custodian shall have no duty to solicit any payments which may be due it hereunder. The Custodian shall not be liable for any action taken or omitted by it in good faith unless it is the result of the Custodian's gross negligence or willful misconduct. The Custodian may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or omitted by it hereunder in good faith and in accordance with the written opinion of such counsel. The Custodian may voluntarily resign and be discharged from its duties or obligations hereunder by giving seven days' notice in writing of such resignation. The Custodian may resign and be discharged from its duties or obligations hereunder, if such resignation and discharge is required by law or court order, by giving notice in writing of such resignation specifying a date when such resignation shall take effect. The undersigned each hereby agrees to indemnify the Custodian for, and hold it harmless against any loss, liability or expense arising out of or in connection with this Custody Agreement and carrying out its duties hereunder, including the costs and expenses of defending itself against any claim of liability, except in those cases where the Custodian has been guilty of gross negligence or willful misconduct. Anything in this Custody Agreement to the contrary notwithstanding, in no event shall the Custodian be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action. The liability of the undersigned pursuant to this paragraph shall not exceed the product of the number of shares of Common Stock sold by the undersigned and the public offering price for the Common Stock. The duties and responsibilities of the Custodian hereunder shall be determined solely by the express provisions of this Custody Agreement and no other or further duties or responsibilities shall be implied. The Custodian shall not have any liability under, nor duty to inquire into the terms and provisions of any agreement or instructions, other than outlined in this Custody Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. THIS CUSTODY AGREEMENT SHALL BE DEEMED UNDER SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. -5- Please acknowledge your acceptance hereof as Custodian and receipt of the Common Certificates deposited with you hereunder by executing and returning to the undersigned the enclosed copy hereof. Dated: February 4, 2002 Very truly yours, ---------------------------------------- [Print Full Name of Selling Stockholder] A. If Selling Stockholder is an individual: ---------------------------------------- (Signature) Address: --------------------------- --------------------------- --------------------------- --------------------------- The maximum number of shares of Common Stock to be sold pursuant to the Underwriting Agreement: ____________ shares The number of shares of Common Stock delivered herewith: ____________ shares -6- Schedule I Please complete each column as to certificates and option agreements deposited with the Custodian CERTIFICATES DEPOSITED Number of Shares of Common Stock to be sold from each Certificate Number of Shares or Option Agreement of Common Stock (if less than all Option Represented by Shares represented Stock Certificate Agreement Each Certificate or thereby are to be Number Date Option Agreement sold)1 - ------------------ ------------ ------------------- ----------------------- - ------------------ ------------ ------------------- ----------------------- - ------------------ ------------ ------------------- ----------------------- - ------------------ ------------ ------------------- ----------------------- - ------------------ ------------ ------------------- ----------------------- TOTAL: ______________ ____________
- ------------ 1 If no indication is made as to the certificates from which shares to be sold shall be allocated, then selection will be made at the Custodian's discretion. -7- Schedule II Instruction: Date, execute and have your signature guaranteed.* DO NOT fill in the Transferee or the number of Shares. STOCK POWER FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- ________________(______________)Common Shares, $0.01 par value per share, of Fisher Scientific International Inc., a corporation organized under the laws of the State of Delaware, and does hereby irrevocably constitute and appoint Todd M. DuChene and Kevin P. Clark, and each of them, his Attorneys-in-Fact to transfer said shares on the books of said shares on the books of said corporation, each with full power to act alone, including full power of substitution in the premises. Dated: February 4, 2002 Signature: ---------------------------- Name: Signature guaranteed by*: - -------------------------- * The signature must be guaranteed by a bank, broker, dealer or other eligible guarantor institution that is a member of a signature guarantee medallion program. -8- Schedule III NOTICE OF EXERCISE In connection with the public offering of the shares of Common Stock of Fisher Scientific International Inc., the undersigned hereby elects to exercise an option to purchase ________ shares of Common Stock, $0.01 par value per share, of the Company at a price of $______ per share of Common Stock, which shares of Common Stock shall be sold in the public offering subject to the terms of the Power of Attorney and Custody Agreement of which this Schedule III is a part and the Underwriting Agreement. This notice is given in accordance with the terms of my Stock Option Agreement dated ______________, a signed copy of which is attached. In payment of the aggregate exercise price, the undersigned has instructed the Representatives of the Underwriters to irrevocably to pay the exercise price with the proceeds from the sale of shares of Common Stock subject to the Option Agreement. In the event that not all of the shares of Common Stock pursuant to the stock option being exercised herewith are being sold in the public offering, please issue the certificate or certificates for such remaining shares in: ______ my name __________________________________ (please print clearly) OR ______ my name and __________________________________ as joint tenants (please print clearly) (Check and complete applicable line) Sincerely, ------------------------------ - -- Name: ------------------------------ - -- ------------------------------ - -- Mailing Address ------------------------------ - -- Social Security Number, if applicable (Note: The signature must be guaranteed by a bank, broker, dealer or other eligible guarantor institution that is a member of a signature guarantee medallion program.) Signature guaranteed by: - -------------------- Name: -9- Schedule IV Instruction: Indicate how you wish to receive payment for the shares of Common Stock sold MANNER OF PAYMENT The undersigned requests that payment for the shares of Common Stock to be sold by the undersigned pursuant to the Underwriting Agreement be made in the following manner (CHECK ONE): [ ] CHECK made payable to the order of: --------------------------------------- to be sent to the following address: --------------------------------------- --------------------------------------- Telephone: ----------------------------- [ ] WIRE TRANSFER to the following account: Account No. ---------------------------- Bank Name: ----------------------------- Bank Address: -------------------------- --------------------------------------- Contact at Bank: ----------------------- Telephone: ----------------------------- [ ] OTHER (please specify): --------------------------------------- --------------------------------------- --------------------------------------- -10- CUSTODIAN'S ACKNOWLEDGMENT AND RECEIPT Fisher Scientific International Inc., as Custodian, acknowledges acceptance of the duties of the Custodian under the foregoing Custody Agreement and receipt of the following Common Certificates and Option Agreements: Cert. No. of Shares of Common Stock - ----- ----------------------------- - ------ ----------------------------------------- - ------ ----------------------------------------- - ------ ----------------------------------------- Option Agreements (list each one with dates) - ----------------- Dated: February 4, 2002 Fisher Scientific International Inc., as Custodian -------------------------------- Name: Title: EX-12 8 feb1902_ex12.txt Exhibit 12 Fisher Scientific International Inc. Common Stock, par value $0.01 per share ------ Irrevocable Power of Attorney of Selling Stockholder ---------------------------------------------------- The undersigned understands that Fisher Scientific International Inc., a Delaware corporation (the "Company"), has authorized a public offering of shares of its common stock, $0.01 par value per share (the "Common Stock"), whereby the undersigned and certain other persons (the undersigned and such other persons being hereinafter referred to as the "Selling Stockholders") propose to sell certain shares of Common Stock to the underwriters (the "Underwriters"), for whom Goldman, Sachs & Co., Credit Suisse First Boston Corporation, J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. Incorporated are acting as representatives, and that the Underwriters propose to offer such shares to the public. The undersigned also understands that, in connection with the public offering pursuant to the Underwriting Agreement (as defined below), the Company has filed a Registration Statement (the "Registration Statement") with the Securities and Exchange Commission (the "Commission"), receipt of a copy of which the undersigned acknowledges, to register under the Securities Act of 1933, as amended (the "1933 Act"), the offering of the shares to be sold by the Company and the Selling Stockholders. Concurrently with the execution and delivery of this Power of Attorney, the undersigned is also executing and delivering a Custody Agreement (the "Custody Agreement") pursuant to which stock certificates and/or option agreements representing shares of Common Stock or the right to purchase shares of Common Stock are being deposited with the Company, which will hold such certificates and/or option agreements as custodian (the "Custodian"). The number of shares of Common Stock represented by such stock certificates and/or option agreements immediately prior to the consummation of the offer by the Underwriters to the public is at least equal to the number of shares of Common Stock set forth opposite the undersigned's name at the end of this instrument. 1. In consideration of the undertakings of the Company with respect to the preparation and filing of the Registration Statement, the completion of the registration of the shares (the "Shares") of Common Stock to be registered for sale by the Selling Stockholders under the 1933 Act, the execution and delivery of the Underwriting Agreement, the execution and delivery by other Selling Stockholders of Powers of Attorney in substantially the same form herewith, the interest of the Underwriters in this transaction prior to the execution and delivery of the Underwriting Agreement and the rights and obligations of the Underwriters under the Underwriting Agreement after execution and delivery, other good and valuable consideration, and the interest of the Company, the other Selling Stockholders and the Underwriters in the matters above referred to and in connection with the foregoing, the undersigned hereby appoints Todd M. DuChene and Kevin P. Clark, and either of them acting alone, the attorneys- in-fact (collectively the "Attorneys-in-Fact" and, individually, an "Attorney-in-Fact") of the undersigned, and agrees that the Attorneys-in-Fact, or either of them acting alone, may also act as attorneys-in-fact for any other Selling Stockholder, with full power and authority in the name of, and for and on behalf of, the undersigned: (a) to sell to the Underwriters up to the number (the "Maximum Number") of Shares of Common Stock as set forth opposite the name of the undersigned at the end of this instrument; provided that (i) the price per share at which the Shares subject hereto are sold to the Underwriters is the same as the price per share at which the other Selling Stockholders sell their Shares to the Underwriters and (ii) Thomas H. Lee Equity Fund III, L.P. and related parties ("THL") collectively sell Shares representing the same percentage of their total ownership interest in the Company (subject to adjustment for fractional shares) as the percentage to be sold by the undersigned and related parties; if THL does not sell such amount, the Attorneys-in-Fact agree to immediately notify the undersigned, at which time the undersigned may, in its sole discretion, determine whether to nonetheless sell its Shares, and, if it decides to sell the Shares, shall provide written notice to the Attorneys-in-Fact authorizing them to proceed with the sale of the Shares and exercise all rights hereunder in connection with such sale; (b) for the purpose of effecting such sale, to execute and deliver an underwriting agreement (the "Underwriting Agreement"), among the Company, the Selling Stockholders and the Underwriters, in substantially the form thereof attached hereto as Exhibit A-1, together with such additions thereto, deletions therefrom and changes thereto (including (i) the purchase price per Share to be paid by the Underwriters (subject to the provisos set forth in (a)(i) above) and (ii) the number (or method of determining the number) of Shares (not to exceed the Maximum Number in the aggregate) to be sold by the undersigned) as may be approved in the sole discretion of the Attorneys-in-Fact, or either of them acting alone, such approval to be conclusively evidenced by the execution and delivery of the Underwriting Agreement by the Attorneys-in-Fact or either of them acting alone; provided, however, that no changes agreed to by the Attorneys-in-Fact will materially increase or expand the obligations of the undersigned (including, without limitation, representations and warranties, expense reimbursement and indemnity and contribution obligations) above or beyond those set forth in the Underwriting Agreement; (c) to execute and deliver any amendments, modifications or supplements to the Underwriting Agreement to amend, modify or supplement any of the terms thereof including, without limitation, the terms of the offering (subject to the proviso set forth in (a)(i) and (a)(ii) above); provided, however, that no such amendment shall increase the number of the Shares to be sold by the undersigned to more than the Maximum Number in the aggregate; and provided further, however, that no changes agreed to by the Attorneys-in-Fact will materially increase or expand the obligations of the undersigned above or beyond those set forth in the Underwriting Agreement; (d) to give such orders and instruments to the Company, the Custodian or any other person as the Attorneys-in-Fact, or either of them acting alone, may determine, in order to effectuate the foregoing, including, without limitation, orders or instructions for the following: (i) the exercise under the option agreements in accordance with the Notice of Exercise delivered with the Custody Agreement for the number of shares of Common Stock to be sold by the undersigned from such option agreements and the payment to the Company of the aggregate exercise price therefor; (ii) the -2- transfer on the books of the Company of the Shares in order to effect their sale (including the names in which new certificates for the Shares are to be issued and the denominations thereof), (iii) the purchase of any transfer tax stamps necessary in connection with the transfer of the Shares, (iv) the delivery to or for the account of the Underwriters of the certificates for the Shares against receipt by the Custodian of the purchase price therefor, (v) the payment by the Custodian out of the proceeds of any sale of the Shares to the Underwriters of all expenses as are to be borne by the undersigned, (vi) the remittance by the Custodian of the net balance of the proceeds from any sale of the Shares to be sold in accordance with the payment instructions set forth in the Custody Agreement or such other instructions as the Attorneys-in-Fact, or either of them acting alone, may, upon the instructions of the undersigned, have given to the Custodian in accordance with the Custody Agreement, and (vii) the return to the undersigned of new certificates representing the number of shares of Common Stock represented by certificates deposited with the Custodian that are in excess of the number of Shares sold by the undersigned to the Underwriters as specified in the Underwriting Agreement; provided, however, that the Attorneys-in-Fact shall obey any instructions of the undersigned with respect to any denominations of the new certificates for the Shares to be issued; (e) to join the Company in withdrawing the Registration Statement if the Company should desire to withdraw such registration statement; (f) to retain legal counsel in connection with any and all matters referred to herein (which counsel may, but need not be, counsel for the Company); (g) to arrange payment therefor of those expenses of the public offering, if any, payable by the undersigned; (h) to endorse (in blank or otherwise) on behalf of the undersigned the certificate or certificates representing the shares of Common Stock to be sold by the undersigned, or a stock power or powers attached to such certificate or certificates; and (i) to make, execute, acknowledge and deliver all other contracts, orders, receipts, notices, requests, instructions, certificates, letters and other writings, including communications to the Commission (including a request or requests for acceleration of the effective date of the Registration Statement) and state securities law authorities, any amendments to the Underwriting Agreement, the Custody Agreement or any agreement with the Company with regard to expenses, and certificates and other documents required to be delivered by or on behalf of the undersigned pursuant to the Underwriting Agreement or the Custody Agreement, and specifically to execute on behalf of the undersigned stock powers and transfer instructions relating to the Shares to be sold by the undersigned, and in general to do all things and to take all action which the Attorneys-in-Fact, or either of them acting alone, may consider necessary and proper in connection with, or to carry out and comply with, all terms and conditions of the Underwriting Agreement and the Custody Agreement and the aforesaid sale of Shares to the several Underwriters; provided, however, that no such actions by the Attorneys-in-Fact shall violate the limits in the provisos in (a)(i), (a)(ii) and (b) above. Notwithstanding the foregoing, the Attorneys-in-Fact shall not have any power of authorization to execute any agreement or instrument on behalf of the -3- undersigned that constitutes a waiver or amendment of the Amended and Restated Investors' Agreement dated as of March 29, 1999, as amended heretofore. 2. (a) The undersigned hereby (i) confirms the accuracy of the information concerning the undersigned and the undersigned's beneficial interests in the Company (but not the percentages therein) as set forth in the Registration Statement under the caption "Principal and Selling Stockholders" and will notify the Company immediately in writing if such information changes and (ii) makes, at and as of the date of this Power of Attorney, with and to the Underwriters each of the representations, warranties and agreements of such Selling Stockholder set forth in Section 1(b) of the form of the Underwriting Agreement attached hereto as Exhibit A-1, and all such representations, warranties and agreements are incorporated by reference herein in their entirety, the representations, warranties and agreements being subject, however, to the exception that orders or authorizations that may be required under the 1933 Act, the Securities Exchange Act of 1934, as amended, the rules and regulations of the National Association of Securities Dealers and state securities or Blue Sky laws and the laws of foreign jurisdictions in connection with the purchase and distribution by the Underwriters of the Shares to be sold by the undersigned have not yet been obtained. The undersigned further agrees with the Company and the Underwriters that for all purposes of the representations, warranties and agreements incorporated by reference herein from subsection (vi) of Section 1(b) of the form of the Underwriting Agreement attached hereto as Exhibit A-1, delivery of this Power of Attorney and the statements contained herein or incorporated herein constitute and will constitute on a continuing basis written information furnished by the undersigned to the Company for use in the Registration Statement and any such prospectus, amendment or supplement. (b) The undersigned further represents and warrants to, and agrees with, you and the several Underwriters that this Power of Attorney and the Custody Agreement has been, and the Underwriting Agreement when duly executed by you will be, duly executed and delivered by or on behalf of the undersigned and this Power of Attorney constitutes the valid and binding agreement of the undersigned enforceable against the undersigned in accordance with its terms. 3. This Power of Attorney and all authority conferred hereby are granted and conferred subject to the interests of the Underwriters and the other Selling Stockholders; and, in consideration of those interests and for the purpose of completing the transactions contemplated by the Underwriting Agreement and this Power of Attorney, this Power of Attorney and all authority conferred hereby, to the extent enforceable by law, shall be deemed coupled with an interest and be irrevocable and, except as set forth herein or in the Custody Agreement, not subject to termination by the undersigned or by operation of law, whether by the death or incapacity of the undersigned (if the undersigned is an individual) or by the death or incapacity of any executor or trustee (if the undersigned is an estate or trust) or the termination of such estate or trust or by the dissolution of the undersigned (if the undersigned is a partnership or corporation), or by the occurrence of any other event, and the obligations of the undersigned as a Selling Stockholder under the Underwriting Agreement similarly are not to be subject to termination and shall remain in full force and effect until the termination date described below. If any such individual or any such executor or trustee should die or become incapacitated or if any such estate or trust should be terminated or if any such partnership or corporation should be dissolved or if any other such event should occur before the delivery of the Shares to be sold by the undersigned under the Underwriting Agreement, certificates representing such Shares shall be delivered by or on behalf of the undersigned in accordance with the terms and conditions of the Underwriting Agreement and of the Custody Agreement, and actions taken by the Attorneys-in-Fact, or either of them acting alone, pursuant to this Power of Attorney and by the Custodian -4- under the Custody Agreement shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or either of them acting alone, shall have received notice of such death, incapacity, termination, dissolution or other event. Notwithstanding the foregoing, if the Underwriting Agreement is not executed and delivered and the transactions contemplated thereby consummated on or prior to March 31, 2002, then this Power of Attorney shall thereupon terminate, subject, however, to all lawful action done or permitted by the Attorneys-in-Fact, or any of them, pursuant to this Power of Attorney on or prior to such date and subject to the power of the undersigned to extend this Power of Attorney and, with the consent of the Custodian, the Custody Agreement by giving written notice thereof to the Attorneys-in-Fact, or either of them, and to the Custodian. 4. The undersigned will immediately notify the Attorneys-in-Fact, the Company and the Representatives of the occurrence of any event which shall cause the representations and warranties contained herein not to be true and correct during the period of the public offering of the Shares or at any applicable Time of Delivery for Shares pursuant to the Underwriting Agreement. 5. The undersigned ratifies all that the Attorneys-in-Fact shall do by virtue of their Power of Attorney in compliance with the terms hereof. All actions may be taken by either of the Attorneys-in-Fact alone. In the event that any statement, request, notice or instruction given by one Attorney-in-Fact shall be inconsistent with that given by another, any such statement, request, notice or instruction from Todd M. DuChene shall prevail. 6. It is understood that, other than in their capacities as Attorneys-in-Fact, the Attorneys-in-Fact make no representations with respect to and shall have, except as required by the 1933 Act in respect of their capacities as officers or directors who sign the Registration Statement, no responsibility for the Registration Statement or Prospectus. The undersigned agrees to hold the Attorneys-in-Fact, jointly and severally, free and harmless from any and all loss, damage, liability or expense incurred in connection herewith, including reasonable attorney's fees and costs, which they, or either of them acting alone, may sustain as a result of any action taken hereunder except to the extent that the loss, damage, liability or expense incurred is attributable to the gross negligence or willful misconduct of the Attorneys-in-Fact. The liability of the undersigned pursuant to this paragraph shall not exceed the product of the number of shares of Common Stock sold by the undersigned and the public offering price for the Common Stock. It is understood that the Attorneys-in-Fact shall serve without compensation. 7. If any provision of this Power of Attorney is found to be unenforceable as applied in any particular case or circumstances in any applicable jurisdiction because it conflicts with any other provision of this Power of Attorney, or any constitution, statute or rule of public policy, or for any other reason, such finding shall not render the provision unenforceable in any other case or circumstances, or render any other provision of this Power of Attorney unenforceable to any extent whatsoever. 8. This Power of Attorney is made under, and shall be governed pursuant to, the laws of the State of New York and shall be deemed to be an instrument under seal. -5- 9. This Power of Attorney may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. -6- Dated: February 12, 2002 Maximum Number of Shares of Common Stock To Be Sold: Shares - ---------------- Signature of Selling Stockholder: ------------------------------------------- [Signature] ------------------------------------------- [Insert Full Name of Selling Stockholder] NOTE: ALL SIGNATURE(S) ON THIS POWER OF ATTORNEY MUST BE EITHER GUARANTEED BY ONE OF THE INSTITUTIONS REFERRED TO IN THE FIRST PARAGRAPH OF THE CUSTODY AGREEMENT OR ELSE MUST BE NOTARIZED; SEE BELOW. -7- STATE OF ) ------------------- ss.: COUNTY OF ) On the day of _______, 2002 before me personally came _____________ ________________________________________ to me known and known to me to be the individual described in, and who executed the foregoing instrument, and (s)he acknowledged to me that (s)he executed the same. -------------------------- Notary Public My term expires: ---------------------- -8- ACKNOWLEDGED AND ACCEPTED: - ---------------------------------- Todd M. DuChene - ---------------------------------- Kevin P. Clark -9- Schedule I Instruction: Indicate how you wish to receive payment for the shares of Common Stock sold MANNER OF PAYMENT The undersigned requests that payment for the shares of Common Stock to be sold by the undersigned pursuant to the Underwriting Agreement be made in the following manner (CHECK ONE): [ ] CHECK made payable to the order of: --------------------------------------- to be sent to the following address: --------------------------------------- --------------------------------------- Telephone: ----------------------------- [ ] WIRE TRANSFER to the following account: Account No. ---------------------------- Bank Name: ----------------------------- Bank Address: -------------------------- --------------------------------------- Contact at Bank: ----------------------- Telephone: ----------------------------- [ ] OTHER (please specify): --------------------------------------- --------------------------------------- --------------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----