-----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, Lz3t/Z+LEVLKl+lnlaC8h/wc61xKXurgWdJVUFzRfCWtUkoThzyo1C6w3y2icXrn /a2F6p3LZsMdVQbREvqWtQ== 0000950123-04-009745.txt : 20040813 0000950123-04-009745.hdr.sgml : 20040813 20040813170514 ACCESSION NUMBER: 0000950123-04-009745 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20040813 EFFECTIVENESS DATE: 20040813 FILER: 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: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-118239 FILM NUMBER: 04975179 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 S-8 1 y99585sv8.txt FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 2004 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ FISHER SCIENTIFIC INTERNATIONAL INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 02-0451017 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) -------------- ONE LIBERTY LANE HAMPTON, NEW HAMPSHIRE 03842 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) SYBRON ACQUISITION COMPANY 1990 STOCK OPTION PLAN SYBRON CORPORATION 1993 LONG-TERM INCENTIVE PLAN, AS AMENDED AND RESTATED THROUGH JANUARY 30, 1998 SYBRON INTERNATIONAL CORPORATION AMENDED AND RESTATED 1994 OUTSIDE DIRECTORS' STOCK OPTION PLAN SYBRON INTERNATIONAL CORPORATION 1999 OUTSIDE DIRECTORS' STOCK OPTION PLAN APOGENT TECHNOLOGIES INC. 2001 EQUITY INCENTIVE PLAN (FULL TITLE OF THE PLANS) -------------- TODD M. DUCHENE, ESQ. VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY FISHER SCIENTIFIC INTERNATIONAL INC. ONE LIBERTY LANE HAMPTON, NEW HAMPSHIRE 03842 (603) 926-5911 (NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) -------------- CALCULATION OF REGISTRATION FEE - --------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE - ------------------------------------------------------------ ------------- ---------------- ---------------- ------------ Common stock, par value $0.01 per share Shares subject to 1,369 $34.12(2) $ 46,710.28 $ 5.92 outstanding options under the Sybron Acquisition Company 1990 Stock Option Plan Common stock, par value $0.01 per share Shares subject to 3,403,758 $34.61(3) $117,804,064.40 $14,925.77 outstanding options under the Sybron Corporation 1993 Long-Term Incentive Plan, as amended and restated through January 30, 1998 Common stock, par value $0.01 per share Shares subject to 100,524 $23.00(4) $ 2,312,052 $ 292.94 outstanding options under the Sybron International Corporation Amended and Restated 1994 Outside Directors' Stock Option Plan Common stock, par value $0.01 per share Shares subject to 107,336 $36.70(5) $ 3,939,231.20 $ 499.10 outstanding options under the Sybron International Corporation 1999 Outside Directors' Stock Option Plan Common stock, par value $0.01 per share Shares subject to 2,792,216 $36.40(6) $101,636,662.40 $12,877.37 outstanding options under the Apogent Technologies Inc. 2001 Equity Incentive Plan
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement also covers additional shares that may become issuable under the Plans by reason of certain corporate transactions or events, including any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant's outstanding shares of common stock. (2) Computed in accordance with Rule 457(h) under the Securities Act, such computation is based on the weighted average exercise price of $34.12 per share covering 1,372 outstanding options. (3) Computed in accordance with Rule 457(h) under the Securities Act, such computation is based on the weighted average exercise price of $34.61 per share covering 3,404,518 outstanding options. (4) Computed in accordance with Rule 457(h) under the Securities Act, such computation is based on the weighted average exercise price of $23.00 per share covering 100,525 outstanding options. (5) Computed in accordance with Rule 457(h) under the Securities Act, such computation is based on the weighted average exercise price of $36.70 per share covering 107,337 outstanding options. (6) Computed in accordance with Rule 457(h) under the Securities Act, such computation is based on the weighted average exercise price of $36.40 per share covering 2,794,508 outstanding options. EXPLANATORY NOTE This registration statement registers shares of common stock, par value $0.01 per share (the "Common Stock"), of Fisher Scientific International Inc. (the "Company") that may be issued and sold under the Sybron Acquisition Company 1990 Stock Option Plan, Sybron Corporation 1993 Long-Term Incentive Plan, as amended and restated through January 30, 1998, Sybron International Corporation Amended and Restated 1994 Outside Directors' Stock Option Plan, Sybron International Corporation 1999 Outside Directors' Stock Option Plan and Apogent Technologies Inc. 2001 Equity Incentive Plan (the "Plans"). PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION.* ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.* * The documents containing the information specified in Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such documents need not be filed with the Securities and Exchange Commission (the "SEC") either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. Upon written or oral request, the Company will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b). Requests for the above-mentioned information should be directed to Todd M. DuChene, Esq. at the address and telephone number on the cover of this Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents previously filed with the SEC are incorporated by reference in this registration statement: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2003, filed with the SEC on March 12, 2004 and as amended on May 13, 2004 (File No. 001-10920) (the "Form 10-K"), that contains audited consolidated financial statements of Fisher Scientific International Inc. and its subsidiaries for the fiscal year ended December 31, 2003; (b) The Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2004, filed with the SEC on August 9, 2004 (File No. 001-10920); (c) The Company's Current Reports on Form 8-K filed with the Commission on January 20, 2004, February 4, 2004, February 11, 2004, March 5, 2004, March 17, 2004, April 16, 2004, April 29, 2004, July 26, 2004 and August 3, 2004; and (d) The information contained under Item 5 of the Current Report on Form 8-K filed on July 29, 2004; (e) The description of the Common Stock contained in the Registration Statement on Form 8-A dated November 7, 1991 filed with the SEC by the Company to register such securities under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference in this registration statement shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this registration statement, modifies or supersedes such prior statement. Any statement contained in this registration statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this registration statement modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The following summary is qualified in its entirety by reference to the complete copy of the Delaware General Corporation Law and Fisher's Restated Certificate of Incorporation, as amended through June 6, 2001. Section 145 of the Delaware General Corporation Law generally provides that all directors and officers (as well as other employees and individuals) may be indemnified (must be indemnified, in the case of a successful defense) against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with certain specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation, or a derivative action), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard of care is applicable in the case of derivative actions, except that indemnification extends only to expenses (including attorneys' fees) incurred in connection with defense or settlement of an action, and the Delaware General Corporation Law requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. Section 145 of the Delaware General Corporation Law also provides that the rights conferred thereby are not exclusive of any other right to which any person may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, and permits a corporation to advance expenses to or on behalf of a person entitled to be indemnified upon receipt of an undertaking to repay the amounts advanced if it is determined that the person is not entitled to be indemnified. As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Restated Certificate of Incorporation of Fisher, as amended through June 6, 2001, provides that no director shall be personally liable to Fisher or its stockholders for monetary damages for breach of fiduciary duty as a director other than (i) for any breach of the director's duty of loyalty to Fisher and its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, and (iv) for any transaction from which the director derived an improper personal benefit. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.1 Specimen Certificate of Common Stock, $0.01 par value per share of the Company. Incorporated by reference from the Company's Annual Report on Form 10-K for year ended December 31, 1998, filed on March 31, 1999. 4.2 Amended and Restated Certificate of Incorporation of the registrant, as amended. Incorporated by reference to Exhibit 3.1 to the registrant's Quarterly Report on Form 10-Q filed on May 15, 2002. 4.3 Bylaws of the registrant. Incorporated by reference to Exhibit 3.2 to the registrant's Registration Statement on Form S-4 (Registration No. 333-44400) filed on August 24, 2000. 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page). 99.1 Sybron Acquisition Company 1990 Stock Option Plan. 99.2 Sybron Corporation 1993 Long-Term Incentive Plan, as amended and restated through January 30, 1998. 99.3 Sybron International Corporation Amended and Restated 1994 Outside Directors' Stock Option Plan. 99.4 Sybron International Corporation 1999 Outside Directors' Stock Option Plan. 99.5 Apogent Technologies Inc. 2001 Equity Incentive Plan.
ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Hampton, State of New Hampshire, on August 13, 2004. FISHER SCIENTIFIC INTERNATIONAL INC. By: /s/ Todd M. DuChene ------------------------------------------- Name: Todd M. DuChene Title: Vice President General Counsel and Secretary POWER OF ATTORNEY Each of the undersigned officers and directors of Fisher Scientific International Inc., a Delaware corporation, hereby constitutes and appoints Paul M. Meister, Kevin P. Clark and Todd M. DuChene and each of them, severally, as his or her attorney-in-fact and agent, with full power of substitution and resubstitution, in his or her name and on his or her behalf, to sign in any and all capacities this Registration Statement and any and all amendments (including post-effective amendments) and exhibits to this Registration Statement and any and all applications and other documents relating thereto, with the Securities and Exchange Commission, with full power and authority to perform and do any and all acts and things whatsoever which any such attorney or substitute may deem necessary or advisable to be performed or done in connection with any or all of the above-described matters, as fully as each of the undersigned could do if personally present and acting, hereby ratifying and approving all acts of any such attorney or substitute. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Paul M. Montrone - --------------------------------- Chairman of the Board and August 13, 2004 Paul M. Montrone Chief Executive Officer (Principal Executive Officer) /s/ Paul M. Meister - --------------------------------- Vice Chairman of the Board August 13, 2004 Paul M. Meister /s/ Kevin P. Clark - --------------------------------- Vice President and Chief August 13, 2004 Kevin P. Clark Financial Officer (Principal Financial and Accounting Officer)
SIGNATURE TITLE DATE --------- ----- ---- /s/ Michael D. Dingman - --------------------------------- Director August 13, 2004 Michael D. Dingman /s/ Christopher L. Doerr - --------------------------------- Director August 13, 2004 Christopher L. Doerr /s/ Frank H. Jellinek, Jr. - --------------------------------- Director August 13, 2004 Frank H. Jellinek, Jr. /s/ Simon B. Rich - --------------------------------- Director August 13, 2004 Simon B. Rich /s/ Charles A. Sanders - --------------------------------- Director August 13, 2004 Charles A. Sanders /s/ Scott M. Sperling - --------------------------------- Director August 13, 2004 Scott M. Sperling /s/ W. Clayton Stephens - --------------------------------- Director August 13, 2004 W. Clayton Stephens /s/ Richard W. Vieser - --------------------------------- Director August 13, 2004 Richard W. Vieser
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.1 Specimen Certificate of Common Stock, $0.01 par value per share of the Company. Incorporated by reference from the Company's Annual Report on Form 10-K for year ended December 31, 1998, filed on March 31, 1999. 4.2 Amended and Restated Certificate of Incorporation of the registrant, as amended. Incorporated by reference to Exhibit 3.1 to the registrant's Quarterly Report on Form 10-Q filed on May 15, 2002. 4.3 Bylaws of the registrant. Incorporated by reference to Exhibit 3.2 to the registrant's Registration Statement on Form S-4 (Registration No. 333-44400) filed on August 24, 2000. 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). 24.1 Power of Attorney (included on signature page). 99.1 Sybron Acquisition Company 1990 Stock Option Plan. 99.2 Sybron Corporation 1993 Long-Term Incentive Plan, as amended and restated through January 30, 1998. 99.3 Sybron International Corporation Amended and Restated 1994 Outside Directors' Stock Option Plan. 99.4 Sybron International Corporation 1999 Outside Directors' Stock Option Plan. 99.5 Apogent Technologies Inc. 2001 Equity Incentive Plan.
EX-5.1 2 y99585exv5w1.txt OPINION OF SKADDEN, ARPS, SLATE, MEAHGER & FLOM LLP Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036-6522 August 13, 2004 Fisher Scientific International Inc. One Liberty Lane Hampton, New Hampshire 03842 Ladies and Gentlemen: We have acted as special counsel to Fisher Scientific International Inc., a Delaware corporation (the "Company"), and are delivering this opinion in connection with the Registration Statement on Form S-8 of the Company (the "Registration Statement") being filed with the Securities and Exchange Commission (the "Commission") on the date hereof, relating to the registration by the Company of 6,408,260 shares (the "Plan Shares") of common stock, par value $0.01 per share (the "Common Stock"), of the Company authorized for issuance pursuant to the Company's Sybron Acquisition Company 1999 Stock Option Plan, Sybron Corporation 1993 Long-Term Incentive Plan, as amended and restated through January 30, 1998, Sybron International Corporation Amended and Restated 1994 Outside Directors' Stock Option Plan, Sybron International Corporation 1999 Outside Directors' Stock Plan and Apogent Technologies Inc. 2001 Equity Incentive Plan (collectively, the "Plans"). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Securities Act"). In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Plans; (ii) the Registration Statement; (iii) certain resolutions of the Board of Directors of the Company, dated June 8, 2004; (iv) the Company's Amended and Restated Certificate of Incorporation, as amended on June 6, 2001; (v) the Company's Bylaws; and (vi) specimen certificates representing the Common Stock. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, or photostatic copies and the authenticity of the originals of such copies. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto other than the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials. In rendering the opinion set forth below, we have assumed that the certificates evidencing the Plan Shares in the form examined by us will be manually signed by an authorized officer of the transfer agent and registrar for the Common Stock and registered by such transfer agent and registrar. Members of our firm are admitted to the bar in the State of New York, and we do not express any opinion as to laws of any other jurisdiction other than the General Corporation Law of the State of Delaware. Based on and subject to the foregoing, we are of the opinion that the Plan Shares authorized for issuance pursuant to the Plans have been duly authorized by the Company and, when the Plan Shares are issued and paid for by the plan participants at a price per share not less than the per share par value of the Common Stock as contemplated by the Plans and in accordance with the terms and conditions of the Plans and the applicable stock option agreements, will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ Skadden, Arps, Slate, Meagher & Flom LLP 2 EX-23.1 3 y99585exv23w1.txt CONSENT OF DELOITTE & TOUCHE LLP Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement of Fisher Scientific International Inc. on Form S-8 of our report dated March 2, 2004 (which report expresses an unqualified opinion and includes an explanatory paragraph relating to a change in method of accounting for goodwill and other intangible assets in 2002), appearing in the Annual Report on Form 10-K of Fisher Scientific International Inc. for the year ended December 31, 2003. /s/ DELOITTE & TOUCHE LLP August 13, 2004 New York, New York EX-99.1 4 y99585exv99w1.txt SYBRON ACQUISITION COMPANY 1990 STOCK OPTION PLAN EXHIBIT 99.1 SYBRON ACQUISITION COMPANY 1990 STOCK OPTION PLAN Approved By Board of Directors: December 1, 1990 Approved By Shareholders: November 26, 1991 As Amended: April 7, 1992 SYBRON ACQUISITION COMPANY 1990 STOCK OPTION PLAN TABLE OF CONTENTS
Page ---- Scope and Purpose of Plan................................................................ 1 SECTION 1. Definitions............................................................... 1 SECTION 2. Stock and Maximum Number of Shares Subject to the Plan.................... 3 2.1. Description of Stock and Maximum Shares Allocated............................ 3 2.2. Restoration of Unpurchased Shares............................................ 3 2.3. Maximum Number of Shares that may be Granted to Committee Members............ 3 SECTION 3. Administration of the Plan................................................ 3 3.1. Stock Option Grants and Plan Administration.................................. 3 3.2. Duration, Removal, Etc....................................................... 4 3.3. Meetings and Actions of Committee............................................ 4 3.4. Committee's Powers........................................................... 4 SECTION 4. Eligibility and Participation............................................. 5 4.1. Eligible Individuals......................................................... 5 4.2. No Right to Option........................................................... 5 SECTION 5. Grant of Options and Certain Terms of the Agreements...................... 5 SECTION 6. Terms and Conditions of Options........................................... 6 6.1. Number of Shares............................................................. 6 6.2. Exercise Price............................................................... 6 6.3. Medium and Time of Payment, Method of Exercise, and Withholding Taxes........ 6 6.4. Term, Time of Exercise, and Transferability of Options....................... 7 6.5. Limitation on Aggregate Value of Shares That Max Become First Exercisable During Any Calendar Year Under an Incentive Option........................... 10 6.6. Adjustments Upon Changes in Capitalization, Merger, Etc...................... 10 6.7. Rights as a Shareholder...................................................... 12 6.8. Modification, Extension and Renewal of Options............................... 12 6.9. Furnish Information.......................................................... 13
ii 6.10. Obligation to Exercise; Termination of Employment............................ 13 6.11. Agreement Provisions......................................................... 13 6.12. Non-Transferability of Option................................................ 13 SECTION 7. Remedies and Legend....................................................... 13 7.1. Remedies..................................................................... 13 7.2. Specific Performance......................................................... 13 7.3. Legend....................................................................... 14 SECTION 8. Duration of Plan.......................................................... 14 SECTION 9. Amendment of Plan......................................................... 14 SECTION 10. General................................................................... 14 10.1. Implication of Funds......................................................... 14 10.2. Right of the Corporation and Affiliates to Terminate Employment.............. 14 10.3. No Liability for Good Faith Determinations................................... 15 10.4. Information Confidential..................................................... 15 10.5. Other Benefits............................................................... 15 10.6. Execution of Receipts and Releases........................................... 15 10.7. No Guarantee of Interests.................................................... 15 10.8. Payment of Expenses.......................................................... 15 10.9. Corporation Records.......................................................... 16 10.10. Information.................................................................. 16 10.11. No Liability of Corporation.................................................. 16 10.12. Corporation Action........................................................... 16 10.13. Severability................................................................. 16 10.14. Notices...................................................................... 16 10.15. Waiver of Notice............................................................. 16 10.16. Successors................................................................... 16 10.17. Headings..................................................................... 16 10.18. Governing Law................................................................ 17 10.19. Word Usage................................................................... 17 SECTION 11. Approval of Shareholders.................................................. 17
iii SYBRON ACQUISITION COMPANY 1990 STOCK OPTION PLAN Scope and Purpose of Plan This Sybron Acquisition Company 1990 Stock Option Plan (the "Plan") provides for the granting of: (a) Incentive Options to certain key employees of and the Corporation or of its Affiliates, and (b) Nonstatutory Options to certain key employees of the Corporation or of its Affiliates. The purpose of the Plan is to provide an incentive for key employees of the Corporation or its Affiliates to remain in the service of the Corporation or its Affiliates, to extend to them the opportunity to acquire a proprietary interest in the Corporation so that they will apply their best efforts for the benefit of the Corporation, and to aid the Corporation in attracting able persons to enter the service of the Corporation and its Affiliates. SECTION 1. Definitions. 1.1. "Affiliates" means any corporation, other than the Corporation, in an unbroken chain of corporations beginning with the Corporation if each of the corporations, other than the last corporation in the unbroken chain, owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. For purposes of determining periods of exercisability of an Incentive Option after termination of employment, or any other matter related to sections 422A or 425 of the Code, Affiliates shall also include any corporation, other than the Corporation, in an unbroken chain of corporations ending with the Corporation if each of the corporations, other than the Corporation, owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 1.2. "Agreement" means the written agreement between the Corporation and a Holder evidencing the Option granted by the Corporation and the understanding of the parties with respect thereto. 1.3. "Board" means the board of directors of the Corporation. 1.4. "Code" means the Internal Revenue Code of 1986, as amended. 1.5. "Committee" means the committee appointed pursuant to Section 3 hereof by the Board to administer this Plan. 1 1.6. "Corporation" means the Sybron Acquisition Company, its successors and assigns. 1.7. "Eligible Individuals" means key employees, including officers and directors who are also employees of the Corporation or of any of its Affiliates. Notwithstanding the foregoing provisions of this Section 1.7, to ensure that the requirements of Section 3.1 are satisfied, the Board may at any time specify individuals who shall not be eligible for the grant of Options or options or stock appreciation rights or allocations of stock under any plan of the Corporation or its affiliates (as such terms are used in Rule 16b-3(d)(3) or any successor rule). The Board may at any time determine that an individual who has been so excluded from eligibility shall become an Eligible Individual hereunder or eligible under any other plan. 1.8. "Exchange Act" means the Securities Exchange Act of 1934, as amended. 1.9. "Fair Market Value" means: (a) If shares of Stock of the same class are listed or admitted to unlisted trading privileges on any national or regional securities exchange at the date of determining the Fair Market Value, the last reported sale price on such exchange on the last business day prior to the date in question; or (b) If shares of Stock of the same class shall not be listed or admitted to unlisted trading privileges as provided in Section 1.9(a) and sales prices therefor in the over-the-counter market shall be reported by the National Association of Securities Dealers, Inc. Automated Quotations, Inc. ("NASDAQ") National Market System at the date of determining the Fair Market Value, the last reported sale price so reported on the last business day prior to the date in question; or (c) If shares of Stock of the same class shall not be listed or admitted to unlisted trading privileges as provided in Section 1.9(a) and sales prices therefor shall not be reported by the NASDAQ National Market System as provided in Section 1.9(b), and bid and asked prices therefor in the over-the-counter market shall be reported by NASDAQ (or, if not so reported, by the National Quotation Bureau Incorporated) at the date of determining the Fair Market Value, the average of the closing bid and asked prices on the last business day prior to the date in question; and (d) If shares of Stock of the same class shall not be listed or admitted to unlisted trading privileges as provided in Section 1.9(a) and sales prices or bid and asked prices therefor shall not be reported by NASDAQ (or the National Quotation Bureau Incorporated) as provided in Section 1.9(b) or Section 1.9(c) at the date of determining the Fair Market Value, the value determined in good faith by the Board. For purposes of valuing Incentive Options, the Fair Market Value of Stock shall be determined without regard to any restriction other than one which, by its terms, will never lapse. 1.10. "Holder" means an Eligible Individual to whom an Option has been granted. 2 1.11. "Incentive Options" means stock options that are intended to satisfy the requirements of section 422A of the Code. 1.12. "Nonstatutory Options" means stock options that do not satisfy the requirements of section 422A of the Code. 1.13. "Options" means either Incentive Options or Nonstatutory Options, or both. 1.14. "Rule" means a rule promulgated under the Exchange Act. 1.15. "Securities Act" means the Securities Act of 1933, as amended. 1.16. "Stock" means the Corporation's authorized $0.01 par value common stock together with any other securities with respect to which Options granted hereunder may become exercisable. SECTION 2. Stock and Maximum Number of Shares Subject to the Plan. 2.1. Description of Stock and Maximum Shares Allocated. The Stock which Options granted hereunder give a Holder the right to purchase may be unissued or reacquired shares of Stock, as the Board may, in its sole and absolute discretion, from time to time determine. Subject to the adjustments provided for in Section 6.6 hereof, the aggregate number of shares of Stock to be issued pursuant to the exercise of all Options granted hereunder may equal but shall not exceed 100,000 shares. 2.2. Restoration of Unpurchased Shares. If an Option granted hereunder expires or terminates for any reason during the term of this Plan and prior to the completion of the Restriction Period or exercise of the Option in full, the shares of Stock subject to but not issued under such Option shall again be available for Options granted hereunder subsequent thereto. 2.3. Maximum Number of Shares that may be Granted to Committee Members. The provisions of this Section 2.3 will apply only in the event that the Stock is registered under section 12 of the Exchange Act. Except as provided in Section 3.1(a) concerning "disinterested persons," the maximum number of shares that may be acquired hereunder by or subject to an Option in favor of any Committee member who is not a disinterested person (as defined in Section 3) is 10,000 shares. In addition, the maximum period that may be specified in the Agreement of a Committee member who is not a disinterested person within which an Option granted hereunder may be exercised is 10 years. SECTION 3. Administration of the Plan. 3.1. Stock Option Grants and Plan Administration. The Plan shall be administered by the Committee and shall consist of at least three members of the Board. Unless the Stock is registered under section 12 of the Exchange Act, the Board will have exclusive power to grant 3 Options and the Committee will make recommendations to the Board concerning the granting of Options. In the event the Stock is registered under section 12 of the Exchange Act, the authority of the Board to grant Options will be deemed delegated to the Committee and all members of the Committee shall be either: (a) "disinterested persons," as defined in Rule 16b-3(d)(3) or any successor rule; and in such event members of the Committee shall not be eligible to receive Options, stock options, stock appreciation rights, or an allocation of stock under any plan of the Corporation or its affiliates (as such terms are used in Rule 16b-3(d)(3) or any successor rule) while they are serving as members of the Committee and must not have been eligible to receive Options or such options, stock appreciation rights, or an allocation of stock under any plan of the Corporation or its Affiliates within one year prior to their appointment to the Committee; or (b) directors or officers of the Corporation subject to the limitations of Section 2.3. 3.2. Duration, Removal, Etc. The members of the Committee shall serve at the pleasure of the Board, which shall have the power, at any time and from time to time, to remove members from the Committee or to add members thereto. Vacancies on the Committee, however caused, shall be filled by action of the Board. 3.3. Meetings and Actions of Committee. The Committee shall elect one of its members as its Chairman and shall hold its meetings at such times and places as it may determine. All decisions and determinations of the Committee shall be made by the majority vote or decision of all of its members present at a meeting; provided, however, that any decision or determination reduced to writing and signed by all of the members of the Committee shall be as fully effective as if it had been made at a meeting duly called and held. The Committee may make any rules and regulations for the conduct of its business that are not inconsistent with the provisions hereof and with the bylaws of the Corporation as it may deem advisable. 3.4. Committee's Powers. Subject to the express provisions hereof, the Committee shall have the authority in its sole and absolute discretion: (a) to adopt, amend, and rescind administrative and interpretive rules and regulations relating to the Plan; (b) to determine the terms and provisions of the respective Agreements (which need not be identical), including provisions defining or otherwise relating to (i) subject to Section 6 of the Plan, the term and the period or periods and extent of exercisability of the Options, (ii) the extent to which the transferability of shares of Stock issued upon exercise of Options is restricted, (iii) the effect of termination of employment upon the exercisability of the Options, and (iv) the effect of approved leaves of absence (consistent with any applicable regulations of the Internal Revenue Service); (c) to accelerate the time of exercisability of any Option that has been granted; 4 (d) to construe the respective Option Agreements and the Plan; and (e) to make all other determinations and perform all other acts necessary or advisable for administering the Plan, including the delegation of such ministerial acts and responsibilities as the Committee deems appropriate. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Agreement in the manner and to the extent it shall deem expedient to carry it into effect, and it shall be the sole and final judge of such expediency. The Committee shall have full discretion to make all determinations on the matters referred to in this Section 3.4; such determinations shall be final, binding and conclusive. SECTION 4. Eligibility and Participation. 4.1. Eligible Individuals. Options may be granted hereunder only to persons who are Eligible Individuals at the time of the grant thereof. Notwithstanding any provision contained herein to the contrary, a person shall not be eligible to receive an Incentive Option hereunder unless he is an employee of the Corporation or an Affiliate, nor shall a person be eligible to receive an Incentive Option hereunder if he, at the time such Option is granted, would own (within the meaning of sections 422A and 425 of the Code) stock possessing more than 10% of the total combined voting power or value of all classes of stock of the Corporation or of an Affiliate unless at the time such Incentive Option is granted the exercise price per share of Stock is at least 110% of the Fair Market Value of each share of Stock to which the Incentive Option relates and the Incentive Option is not exercisable after the expiration of five years from the date it is granted. 4.2. No Right to Option. The adoption of the Plan shall not be deemed to give any person a right to be granted an Option. SECTION 5. Grant of Options and Certain Terms of the Agreements. Except as provided in Section 3.1, the Board shall determine which Eligible Individuals shall be granted Options hereunder from time to time, subject to the express provisions hereof. In making grants, the Board may take into consideration the contribution the potential Holder has made or may make to the success of the Corporation or its Affiliates and such other considerations as the Board may from time to time specify. The Board shall also determine the number of shares subject to each of such Options, and shall authorize and cause the Corporation to grant Options in accordance with such determinations. The date on which the Board completes all action constituting an offer of an Option to an individual, including the specification of the number of shares of Stock to be subject to the Option, shall be the date on which the Option covered by an Agreement is granted, even though certain terms of the Agreement may not be at such time determined and even though the Agreement may not be executed until a later time. For purposes of the preceding sentence, an offer shall be deemed made if the Board has completed all such action except communication of 5 the grant of the Option to the potential Holder. In no event, however, shall a Holder gain any rights in addition to those specified by the Board in its grant, regardless of the time that may pass between the grant of the Option and the actual execution of the Agreement by the Corporation and the Holder. Each Option granted hereunder shall be evidenced by an Agreement, executed by the Corporation and the Eligible Individual to whom the Option is granted, incorporating such terms as the Board shall deem necessary or desirable. More than one Option may be granted and concurrently outstanding hereunder to the same Eligible Individual. Incentive Options and Nonstatutory Options granted to the same Eligible Individual shall be evidenced by separate Incentive Option and Nonstatutory Option Agreements. Each Agreement may provide for conditions giving rise to the forfeiture of the Stock or restrictions on the transferability of the Stock acquired pursuant to an Option granted hereunder or otherwise as the Board in its sole and absolute discretion shall deem proper or advisable. Conditions giving rise to forfeiture may include, but need not be limited to, the requirement that the Holder render substantial services to the Corporation or its Affiliates for a specified period of time. Restrictions on transferability may include, but need not be limited to, options and rights of first refusal in favor of the Corporation and any other shareholder of the Corporation who is a party to the particular Agreement. In addition, the Board may grant cash awards payable in connection with the exercise of an Option, the terms and conditions of such awards to be such as the Board in its sole discretion deems appropriate; provided, however, that no such cash award shall be effective unless it can and does comply with any applicable requirements for exemption from liability pursuant to Rule 16b-3 or any successor rule. SECTION 6. Terms and Conditions of Options. All Options granted hereunder shall comply with, be deemed to include, and shall be subject to the following terms and conditions: 6.1. Number of Shares. Each Agreement shall state the number of shares of Stock to which it relates. 6.2. Exercise Price. Each Agreement shall state the exercise price per share of Stock. Subject to the provisions of Section 4.1, the exercise price per share of Stock subject to an Incentive Option shall not be less than the greater of (a) the par value per share of the Stock or (b) 100% of the Fair Market Value per share of the Stock on the date of the grant of the Option. 6.3. Medium and Time of Payment, Method of Exercise, and Withholding Taxes. The exercise price of an Option shall be payable upon the exercise of the Option in cash or by certified or cashier's check payable to the order of the Corporation, or, if required by the Board, with shares of Stock to be issued to the Holder on exercise of the Option or that are otherwise owned by the Holder, including a multiple series of exchanges of such Stock, or with the consent 6 of the Board, by a combination of cash and such shares. Exercise of an Option shall not be effective until the Corporation has received written notice of exercise. Such notice must specify the number of whole shares to be purchased and be accompanied by payment in full of the aggregate exercise price of the number of shares purchased. The Corporation shall not in any case be required to sell, issue, or deliver a fractional share of Stock with respect to any Option. Within a reasonable time or such time as may be permitted by law after the Corporation receives notice of the Holder's election to exercise any part of an Option, the Corporation shall deliver a certificate representing the shares acquired in consequence of the exercise and any other amounts payable in consequence of such exercise. In the event that a Holder exercises any portion of both an Incentive Option and a Nonstatutory Stock Option, separate Stock certificates shall be issued, one for the Stock subject to the Incentive Option and one for the Stock subject to the Nonstatutory Stock Option. The number of the shares of Stock transferable due to an exercise of an Option under this Plan shall not be increased due to the passage of time, except as may be provided in an Agreement or pursuant to Section 6.6. The Corporation may, in its discretion, require a Holder to pay to the Corporation at the time of exercise of an Option or portion thereof the amount that the Corporation deems necessary to satisfy its obligation to withhold taxes incurred by reason of the exercise. Upon the exercise of an Option requiring tax withholding, a Holder may make a written request to have shares of Stock withheld by the Corporation from the shares otherwise received. The number of shares so withheld shall have an aggregate Fair Market Value on the date of exercise sufficient to satisfy the applicable withholding taxes. The acceptance of any such request by the Holder shall be at the sole discretion of the Corporation. Where the exercise of an Option does not give rise to an obligation to withhold taxes on the date of exercise, the Corporation may, in its discretion, require a Holder to place shares of Stock purchased under the Option in escrow for the benefit of the Corporation until such time as tax withholding is no longer required with respect to such shares or until such withholding is required on amounts included in the gross income of the Holder as a result of the exercise of an Option or the disposition of shares of Stock acquired pursuant thereto. At such later time, the Corporation, in its discretion, may require a Holder to pay to the Corporation the amount that the Corporation deems necessary to satisfy its obligation to withhold taxes incurred by reason of the exercise of the Option or the disposition of shares of Stock, in which case the shares of Stock shall be released from escrow to the Holder. Alternatively, subject to acceptance by the Corporation in its sole discretion, a Holder may make a written request to have shares of Stock held in escrow applied toward the Corporation's obligation to withhold taxes incurred by reason of the exercise of the Option or disposition of shares of Stock, based on the Fair Market Value of the shares on the date of the termination of the escrow arrangement. Upon application of such shares toward the Corporation's withholding obligation, any shares of Stock held in escrow and not, in the judgment of the Corporation, necessary to satisfy such obligation shall be released from escrow to the Holder. 6.4. Term, Time of Exercise, and Transferability of Options. In addition to such other terms and conditions as may be included in a particular Agreement granting an Option, an Option shall be exercisable during a Holder's lifetime only by him or by his guardian or legal 7 representative. An Option shall not be transferable other than by will or the laws of descent and distribution. Each Option shall also be subject to the following terms and conditions: (a) Termination of Employment or Directorship. The provisions of this Section 6.4(a) shall apply to the extent a Holder's Agreement does not expressly provide otherwise. If a Holder ceases to be employed by at least one of the employers in the group of employers consisting of the Corporation and its Affiliates because the Holder voluntarily terminates employment with such group of employers and the Holder does not remain or thereupon become a director of the Corporation or one or more of its Affiliates, or if a Holder ceases to be a director of at least one of the corporations in the group of corporations consisting of the Corporation and its Affiliates and the Holder does not remain or thereupon become an employee of the Corporation or one or more of it's Affiliates, the portion, if any, of an Option that remains unexercised, including that portion, if any, that pursuant to the Agreement is not yet exercisable, on the date of the Holder's termination of employment or ceasing to be a director, whichever occurs latest, shall terminate and cease to be exercisable as of such date. If a Holder ceases to be employed by at least one of the employers in the group of employers consisting of the Corporation and its Affiliates because any of such entities terminates the Holder's employment for cause, the portion, if any, of an Option that remains unexercised, including that portion, if any, that pursuant to the Agreement is not yet exercisable, on the date of the Holder's termination of employment, shall terminate and cease to be exercisable as of such date. "Cause" means, without regard to any similar determination of cause under any agreement with the individual other than an Agreement hereunder, a termination of employment for the breach by the Holder of any employment, nondisclosure, noncompetition, or other agreement to which the Holder and the Corporation or any Affiliate are parties, the participation by the Holder in any fraud, dishonesty, competition with the Corporation or an Affiliate, unauthorized use of the Corporation's or an Affiliate's trade secrets or confidential information, or continued gross neglect by the Holder of the duties assigned to him by the Corporation's or an Affiliate's board of directors (if such neglect continues for 30 days after notice by such board to the Holder specifying the duties being neglected by the Holder). Whether cause exists shall be determined by the Board or such board of directors in its sole discretion and in good faith. If a Holder ceases to be employed by at least one of the employers in the group of employers consisting of the Corporation and its Affiliates because one or more of such entities terminates the employment of the Holder, but not for cause, and the Holder does not remain or thereupon become a director of the Corporation or one or more of its Affiliates, the Holder shall have the right for 30 days after such termination or cessation to exercise the Option with respect to that portion thereof that has become exercisable pursuant to Holder's Agreement as of the date of the Holder's termination of employment or cessation of directorship, whichever occurs latest, and thereafter that portion of the Option shall terminate and cease to be exercisable. 8 That portion of the Option which is not exercisable on the date of termination of employment or cessation of directorship shall terminate and be forfeited to the Corporation on the date of such termination or cessation (b) Disability. The provisions of this Section 6.4(b) shall apply to the extent a Holder's Agreement does not expressly provide otherwise. "Disability" hereunder means the inability of a Holder to perform his duties with the Corporation or an Affiliate due to mental or physical incapacity for a period of six months. If a Holder ceases to be employed by at least one of the employers in the group of employers consisting of the Corporation and its Affiliates by reason of Disability and does not remain or thereupon become a director of the Corporation or one or more of its Affiliates, or if the Holder is only a director and ceases by reason of such Disability to be a director of at least one of the corporations in the group of corporations consisting of the Corporation and its Affiliates, the Holder shall have the right for 90 days after the date of termination of employment with or cessation of directorship of such group of employers by reason of Disability, whichever occurs latest, to exercise an Option to the extent such Option is exercisable on the date of his termination of employment or cessation of directorship, and thereafter the Option shall terminate and cease to be exercisable. (c) Death. The provisions of this Section 6.4(c) shall apply to the extent a Holder's Agreement does not expressly provide otherwise. If a Holder dies while in the employ of the Corporation or an Affiliate or dies while a director of the Corporation or an Affiliate, an Option shall be exercisable by the Holder's legal representatives, heirs, legatees, or distributees for 90 days following the date of the Holder's death to the extent such Option is exercisable on the Holder's date of death, and thereafter the Option shall terminate and cease to be exercisable. Subject to the requirements of Section 4.1, no Incentive Option shall be exercisable after the expiration of ten years from the date it is granted. The Board shall have authority to prescribe in any Agreement that the Option evidenced thereby may be exercised in full or in part as to any number of shares subject thereto at any time during the term of the Option, or in such installments at such times during said term as the Board may prescribe. Except as provided above and unless otherwise provided in any Agreement, an Option may be exercised at any time during the term of the Option. Such exercise may be as to any whole (but no fractional) shares which have become purchasable under the Option Agreement. Nothing herein or in any Option granted hereunder shall require the Corporation to issue any shares upon exercise of any Option if such issuance would, in the opinion of counsel for the Corporation, constitute a violation of the Securities Act or any similar or superseding statute, or any other applicable statute or regulation, as then in effect. At the time of any exercise of an Option, the Corporation may, as a condition precedent to the exercise of such Option, require from the Holder of the Option (or in the event of his death, his legal representatives, heirs, legatees, or distributees) such written representations, if any, concerning his intentions with regard to the retention or disposition of the shares being acquired by exercise of such Option and 9 such written covenants and agreements, if any, as to the manner of disposal of such shares as, in the opinion of counsel to the Corporation, may be necessary to ensure that any disposition by such Holder (or in the event of his death, his legal representatives, heirs, legatees, or distributees), will not involve a violation of the Securities Act or any similar or superseding statute or statutes, or any other applicable state or federal statute or regulation, as then in effect. Certificates for shares of Stock, when issued, may have the following or similar legend, or statements of other applicable restrictions, endorsed thereon, and may not be immediately transferable: The shares of Stock evidenced by this certificate have been issued to the registered owner in reliance upon written representations that these shares have been purchased for investment. These shares have not been registered under the Securities Act of 1933, as amended, or any applicable state securities laws, in reliance upon an exception from registration. Without such registration, these shares may not be sold, transferred, assigned or otherwise disposed of unless, in the opinion of the Corporation and its legal counsel, such sale, transfer, assignment or disposition will not be in violation of the Securities Act applicable rules and regulations of the Securities and Exchange Commission, and any applicable state securities laws. 6.5. Limitation on Aggregate Value of Shares That Max Become First Exercisable During Any Calendar Year Under an Incentive Option. Except as is otherwise provided in Section 6.6, with respect to any Incentive Option granted under this Plan, the sum of: (a) the aggregate Fair Market Value of shares of Stock subject to such Incentive Option that first become purchasable in a calendar year under such Incentive Option, and (b) the aggregate Fair Market Value of shares of Stock or stock of any Affiliate (or a predecessor of the Corporation or an Affiliate) subject to any other incentive stock option (within the meaning of section 422A of the Code) of the Corporation or its Affiliates (or a predecessor corporation of any such corporation), that first become purchasable in a calendar year under such incentive stock option may not (with respect to any Holder) exceed $100,000, with such Fair Market Value to be determined as of the date the Incentive Option or such other incentive stock option is granted. For purposes of this Section 6.5, "predecessor corporation" means (i) a corporation that was a party to a transaction described in section 425(a) of the Code (or which would be so described if a substitution or assumption under such section had been effected) with the Corporation, (ii) a corporation which, at the time the new incentive stock option (within the meaning of section 422A of the Code) is granted, is an Affiliate of the Corporation or a predecessor corporation of any such corporations, or (iii) a predecessor corporation of any such corporations. 6.6. Adjustments Upon Changes in Capitalization, Merger, Etc. In the event of any change in the number of outstanding shares of Stock that is: 10 (a) effected without receipt of consideration therefor by the Corporation, by reason of a stock dividend, or split, combination, exchange of shares or other recapitalization, merger, or otherwise, in which the Corporation is the surviving corporation, (b) by reason of the exercise of an Option, or (c) by reason of a spin-off of a part of the Corporation into a separate entity, or assumptions and conversions of outstanding grants due to an acquisition by the Corporation of a separate entity, the aggregate number and class of the reserved shares, the number and class of shares subject to each outstanding Option and the exercise price of each outstanding Option shall be automatically adjusted to accurately and equitably reflect the effect thereon of such change (provided, however, that any fractional share resulting from such adjustment may be eliminated) so that the total number of outstanding shares subject to an Option shall be the amount specified in Section 2.1 of the Plan. In the event of a dispute concerning such adjustment, the Committee has full discretion to determine the resolution of the dispute. Such determination shall be final, binding and conclusive. The number of reserved shares or the number of shares subject to any outstanding Option shall be automatically reduced by any fraction included therein which results from any adjustment made pursuant to this Section 6.6. The following provisions of this Section 6.6 shall apply unless a Holder's Agreement provides otherwise. In the event of: (a) a dissolution or liquidation of the Corporation, (b) a merger or consolidation (other than a merger effecting a re-incorporation of the Corporation in another state or any other merger or a consolidation in which the shareholders of the surviving corporation and their proportionate interests therein immediately after the merger or consolidation are substantially identical to the shareholders of the Corporation and their proportionate interests therein immediately prior to the merger or consolidation) in which the Corporation is not the surviving corporation (or survives only as a subsidiary of another corporation in a transaction in which the shareholders of the parent of the Corporation and their proportionate interests therein immediately after the transaction are not substantially identical to the shareholders of the Corporation and their proportionate interests therein immediately prior to the transaction; provided, however, that the Board may at any time prior to such a merger or consolidation provide by resolution that the foregoing provisions of this parenthetical shall not apply if a majority of the board of directors of such parent immediately after the transaction consists of individuals who constituted a majority of the Board immediately prior to the transaction), or (c) a transaction in which any person (other than a shareholder of the Corporation on the date of the Holder's Agreement) becomes the owner of 50% or more of the total combined voting power of all classes of stock of the Corporation (provided, however, that the Board 11 may at any time prior to such transaction provide by resolution that this provision shall not apply if such acquiring person is a corporation and a majority of the board of directors of the acquiring corporation immediately after the transaction consists of individuals who constituted a majority of the Board immediately prior to the acquisition of such 50% or more total combined voting power), the Board may, at its election, as of the effective time of such transaction, either (1) change the number and kind of shares of stock (including substitution of shares of another corporation) and exercise price of the effected Options in the manner it deems appropriate, provided, however, that the change must conform to the requirements for adjustment in the preceding paragraph of this Section 6.6, and in no event may any change be made under this Section 6.6 which would constitute a "modification" within the meaning of section 425(h)(3) of the Code; or (2) permit every Option then outstanding to terminate, but the Holders of each such then outstanding Options shall, in any event, have the right, immediately prior to such dissolution, liquidation, merger, consolidation, or transaction, to exercise such Options, to the extent not theretofore exercised, without regard to the determination as to the periods and installments of exercisability made pursuant to a Holder's Agreement if (and only if) such Options have not at that time expired or been terminated. In the event that the limitation set forth in Section 6.5 would be exceeded with respect to an Incentive Option, due to acceleration of exercisability under the events described in this Section the Options that become first exercisable that would cause the Section 6.5 limitation to be exceeded shall be deemed to be Nonstatutory Options. Such acceleration of exercisability shall not apply to a given Option if any surviving or acquiring corporation agrees to assume such Option in connection with the merger, consolidation, or transaction. 6.7. Rights as a Shareholder. A Holder shall have no right as a shareholder with respect to any shares covered by his Option until a certificate representing such shares is issued to him. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash or other property) or distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 6.6 hereof. 6.8. Modification, Extension and Renewal of Options. Subject to the terms and conditions of and within the limitations of the Plan, the Committee may modify, extend or renew outstanding Options granted hereunder, or accept the surrender of Options outstanding hereunder (to the extent not theretofore exercised) and authorize the granting of new Options hereunder in substitution therefor (to the extent not theretofore exercised). The Committee may not, however, without the consent of the Holder, modify any outstanding Options so as to specify a higher or lower exercise price or base amount or accept the surrender of outstanding Incentive Options and authorize the granting of new Options in substitution therefor specifying a higher or lower exercise price. In addition, no modification of an Option granted hereunder shall, without the consent of the Holder, alter or impair any rights or obligations under any Option theretofore granted hereunder to such Holder under the Plan, except as may be necessary, with respect to Incentive Options, to satisfy the requirements of section 422A of the Code. 12 6.9. Furnish Information. Each Holder shall furnish to the Corporation all information requested by the Corporation to enable it to comply with any reporting or other requirement imposed upon the Corporation by or under any applicable statute or regulation. 6.10. Obligation to Exercise; Termination of Employment. The granting of an Option hereunder shall impose no obligation upon the Holder to exercise the same or any part thereof. In the event of a Holder's termination of employment with the Corporation or an Affiliate, the unexercised portion of an Option granted hereunder shall terminate in accordance with Section 6.4 hereof. 6.11. Agreement Provisions. The Agreements authorized hereunder shall contain such provisions in addition to those required by the Plan (including, without limitation, restrictions or the removal of restrictions upon the exercise of the Option and the retention or transfer of shares thereby acquired) as the Committee shall deem advisable. Each Option Agreement shall identify the Option evidenced thereby as an Incentive Option or a Nonstatutory Option, as the case may be, and no Agreement shall cover both an Incentive Option and a Nonstatutory Option. Each Agreement relating to an Incentive Option granted hereunder shall contain such limitations and restrictions upon the exercise of the Incentive Option to which it relates as shall be necessary for the Incentive Option to which such Agreement relates to constitute an incentive stock option, as defined in section 422A of the Code. 6.12. Non-Transferability of Option. An Option granted under this Plan shall not be transferable except by will or by the laws of descent and distribution. During the Holder's lifetime, an Option may be exercised only by the Holder. The Holder may not make any disposition of an Option or any interest therein. As used in this Plan, "disposition" means any sale, transfer, encumbrance, gift, donation, assignment, pledge, hypothecation, or other disposition, whether similar or dissimilar to those previously enumerated, whether voluntary or involuntary, and whether during the Holder's lifetime or upon or after his or her death, including, but not limited to, any disposition by operation of law, by court order, by judicial process, or by foreclosure, levy, or attachment, except a transfer by will or by the laws of descent or distribution. Any attempted disposition in violation of this Section 6.12 shall be void and ineffective for all purposes. SECTION 7. Remedies and Legend. 7.1. Remedies. The Corporation shall be entitled to recover from a Holder reasonable attorneys' fees incurred in connection with the enforcement of the terms and provisions of the Plan and any Agreement whether by an action to enforce specific performance or for damages for its breach or otherwise. 7.2. Specific Performance. The Corporation shall be entitled to enforce the terms and provisions of this Plan and any Agreement, including the remedy of specific performance, in Milwaukee, Milwaukee County, Wisconsin. 13 7.3. Legend. Each certificate representing shares issued to a Holder upon exercise of an Option granted under the Plan shall, if such share is subject to any transfer restriction, including a right of first refusal, provided for under this Plan or an Agreement, bear a legend that complies with applicable law with respect to the restrictions on transferability contained in this Section 7.3, such as: The shares represented by this certificate are subject to restrictions on transferability imposed by that certain instrument entitled "Sybron Acquisition Company 1990 Stock Option Plan" dated November 30, 1990, and an agreement thereunder between Sybron Acquisition Company and [Holder] dated __________, 19__, which grants to the Corporation an option to purchase such shares in certain instances. A copy of such plan and agreement is on file at the principal office of the Corporation, and is subject to the same right of examination by a shareholder of the Corporation (in person or by agent, attorney, or accountant) as are the books and records of the Corporation. SECTION 8. Duration of Plan. No Options may be granted hereunder after the date that is ten years from the earlier of (i) the date the Plan is adopted by the Board or (ii) the date the Plan is approved by the shareholders of the Corporation. SECTION 9. Amendment of Plan. The Board may, insofar as permitted by law, with respect to any shares that at the time are not subject to Options, suspend or discontinue the Plan or revise or amend it in any respect whatsoever. However, the Plan shall not, without approval of the shareholders holding the majority of the outstanding shares of all classes of voting stock of the Corporation, be amended in any manner that will: (1) cause Incentive Options issued under it to fail to satisfy the applicable requirements of section 422A of the Code (the consent of the effected Holder is also required); (2) change the number of shares of Stock subject to the Plan; (3) change the designation of the class of employees eligible to receive Options; (4) decrease the price at which Incentive Options may be granted; (5) remove the administration of the Plan from the Committee; or (6) materially increase any benefits available under the Plan. In the event that the Plan is registered under section 12 of the Exchange Act, no revision or amendment of the Plan shall cause it to no longer comply with the requirements of section 16(b) of the Exchange Act, any Rule, any successor statute or rule or other regulatory requirements. SECTION 10. General. 10.1. Implication of Funds. The proceeds received by the Corporation from the sale of shares pursuant to Options shall be used for general corporate purposes. 10.2. Right of the Corporation and Affiliates to Terminate Employment. Nothing contained in the Plan, or in any Agreement, shall confer upon any Holder the right to continue in 14 the employ of the Corporation or any Affiliate, or interfere in any way with the rights of the Corporation or any Affiliate to terminate his employment any time. 10.3. No Liability for Good Faith Determinations. Neither the members of the Board nor the Committee shall be liable for any act, omission, or determination taken or made in good faith with respect to the Plan or any Option granted under it. Members of the Board and the Committee will be indemnified and reimbursed by the Corporation with respect to any claim, loss, damage, or expense (including attorneys' fees, the costs of settling any suit, provided such settlement is approved by independent legal counsel selected by the Corporation, and amounts paid in satisfaction of a judgment, except a judgment based on a finding of bad faith) arising therefrom to the full extent permitted by law and under any directors and officers liability or similar insurance coverage that may from time to time be in effect. 10.4. Information Confidential. As partial consideration for the granting of each Option hereunder, the Holder shall agree with the Corporation that he will keep confidential all information and knowledge that he has relating to the manner and amount of his participation in the Plan; provided, however, that such information may be disclosed as required by law and may be given in confidence to the Holder's spouse and tax and financial advisors, or to a financial institution to the extent that such information is necessary to secure a loan. In the event any breach of this promise comes to the attention of the Committee, it shall take into consideration such breach, in determining whether to recommend the grant of any future Option to such Holder, as a factor militating against the advisability of granting any such future Option to such individual. 10.5. Other Benefits. Participation in the Plan shall not preclude the Holder from eligibility in any other stock option plan of the Corporation or any Affiliate or any old age benefit, insurance, pension, profit sharing, retirement, bonus, or other extra compensation plans which the Corporation or any Affiliate has adopted, or may, at any time, adopt for the benefit of its employees. 10.6. Execution of Receipts and Releases. Any payment of cash or any issuance or transfer of shares of Stock to the Holder, or to his legal representative, heir, legatee, or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full satisfaction of all claims of such persons hereunder. The Committee may require any Holder, legal representative, heir, legatee, or distributee, as a condition precedent to such payment, to execute a release and receipt therefor in such form as it shall determine. 10.7. No Guarantee of Interests. There is no guarantee or representation as to the present or future value of the Stock. 10.8. Payment of Expenses. All expenses incident to the administration, termination, or protection of the Plan, including, but not limited to, legal and accounting fees, shall be paid by the Corporation or its Affiliates; provided, however, the Corporation or an Affiliate may recover any and all damages, fees, expenses, or costs arising out of any actions taken by the Corporation to enforce its rights hereunder. 15 10.9. Corporation Records. Records of the Corporation or its Affiliates regarding the Holder's period of employment, termination of employment and the reason therefor, leaves of absence, re-employment, and other matters shall be conclusive for all purposes hereunder, unless determined by the Committee to be incorrect. 10.10. Information. The Corporation and its Affiliates shall, upon request or as may be specifically required hereunder, furnish or cause to be furnished, all of the information or documentation which is necessary or required by the Committee to perform its duties and functions under the Plan. 10.11. No Liability of Corporation. The Corporation assumes no obligation or responsibility to the Holder or his legal representatives, heirs, legatees, or distributees for any act of, or failure to act on the part of, the Committee. 10.12. Corporation Action. Any action required of the Corporation shall be by resolution of its Board or by a person authorized to act by resolution of the Board or bylaw of the Corporation. 10.13. Severability. If any provision of this Plan is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such provision shall be fully severable and the Plan shall be construed and enforced as if the illegal or invalid provision had never been included herein. 10.14. Notices. Whenever any notice is required or permitted hereunder, such notice must be in writing and personally delivered or sent by mail or by a nationally recognized courier service. Any notice required or permitted to be delivered hereunder shall be deemed to be delivered on the date on which it is personally delivered, or, if mailed, whether actually received or not, on the third business day after it is deposited in the United States mail, certified or registered, postage prepaid, addressed to the person who is to receive it at the address which such person has previously specified by written notice delivered in accordance herewith or, if by courier, 24 hours after it is sent, addressed as described in this Section. The Corporation or a Holder may change, at any time and from time to time, by written notice to the other, the address which it or he had previously specified for receiving notices. Until changed in accordance herewith, the Corporation and each Holder shall specify as its and his address for receiving notices the address set forth in the Agreement pertaining to the shares to which such notice relates. 10.15. Waiver of Notice. Any person entitled to notice hereunder may waive such notice. 10.16. Successors. The Plan shall be binding upon the Holder, his legal representatives, heirs, legatees and distributees upon the Corporation, its successors, and assigns, and upon the Committee, and its successors. 10.17. Headings. The titles and headings of Sections are included for convenience of reference only and are not to be considered in construction of the provisions hereof. 16 10.18. Governing Law. All questions arising with respect to the provisions of the Plan shall be determined by application of the laws of the State of Delaware except to the extent Delaware law is preempted by federal law. Questions arising with respect to the provisions of an Agreement that are matters of contract law shall be governed by the laws of the state specified in the Agreement, except to the extent preempted by federal law and except to the extent that Delaware corporate law conflicts with the contract law of such state, in which event Delaware corporate law shall govern. The obligation of the Corporation to sell and deliver Stock hereunder is subject to applicable laws and to the approval of any governmental authority required in connection with the authorization, issuance, sale, or delivery of such Stock. 10.19. Word Usage. Words used in the masculine shall apply to the feminine where applicable, and wherever the context of this Plan dictates, the plural shall be read as the singular and the singular as the plural. SECTION 11. Approval of Shareholders. The Plan shall take effect on the date it is adopted by the Board. However, if this Plan is not approved by the holders of a majority of the outstanding shares of equity securities of the Corporation having voting rights within the period beginning on the date the Board adopts the Plan and ending 12 months after the date the Plan is adopted by the Board none of the Options granted hereunder shall constitute Incentive Options. In the event that the Plan is not so approved on or before the first annual meeting of stockholders of the Corporation following the date the Board adopts the Plan, if any Options are granted under the Plan before the date such stockholders do approve the Plan to individuals subject to suit under section 16(b) of the Exchange Act at the time of grant, such Options shall be null, void, and of no force and effect as of their grant date. 17 EXHIBIT A (Amendment to Section 3.1 Adopted by the Board 4/7/92) RESOLVED, that Section 3.1 of the Corporation's 1990 Stock Option Plan, adopted by the Corporation's Board of Directors on December 1, 1990 and approved by the Corporation's Stockholders on November 27, 1991, be and hereby is amended and restated to read in its entirety as follows: "3.1 Stock Option Committee. The 1990 Plan shall be administered by the Committee, which shall have all powers attendant thereto, including the power to grant Options hereunder. The Committee shall consist of not less than two (2) members of the Board of Directors who shall be disinterested persons as defined in Rule 16b-3(c)(2)(i) promulgated under the Act." 18 EX-99.2 5 y99585exv99w2.txt SYBRON CORPORATION 1993 LONG-TERM INCENTIVE PLAN Exhibit 99.2 SYBRON INTERNATIONAL CORPORATION AMENDED AND RESTATED 1993 LONG-TERM INCENTIVE PLAN (AS AMENDED AND RESTATED THROUGH JANUARY 30, 1998) A-i TABLE OF CONTENTS PAGE ARTICLE 1 ESTABLISHMENT, PURPOSE AND DURATION................................1 1.1 Establishment of the Plan..................................1 1.2 Purpose of the Plan........................................1 1.3 Duration of the Plan.......................................1 ARTICLE 2 DEFINITIONS........................................................1 ARTICLE 3 ADMINISTRATION.....................................................4 3.1 The Committee..............................................4 3.2 Authority of the Committee.................................4 3.3 Decisions Binding..........................................5 ARTICLE 4 SHARES SUBJECT TO THE PLAN.........................................5 4.1 Number of Shares...........................................5 4.2 Lapsed Awards..............................................5 4.3 Adjustments in Authorized Shares...........................5 ARTICLE 5 ELIGIBILITY AND PARTICIPATION......................................5 5.1 Eligibility................................................5 5.2 Actual Participation.......................................5 ARTICLE 6 STOCK OPTIONS......................................................6 6.1 Grant of Options...........................................6 6.2 Award Agreement............................................6 6.3 Option Price...............................................6 6.4 Duration of Options........................................6 6.5 Exercise of Options........................................6 6.6 Payment....................................................6 6.7 Restrictions on Share Transferability......................7 6.8 Termination of Employment..................................7 6.9 Termination for Cause......................................7 6.10 Nontransferability of Options..............................7 ARTICLE 7 CHANGE IN CONTROL................................................... ARTICLE 8 AMENDMENT, MODIFICATION, AND TERMINATION...........................8 8.1 Amendment, Modification and Termination....................8 8.2 Awards Previously Granted..................................8 ARTICLE 9 WITHHOLDING........................................................8 9.1 Tax Withholding............................................8 9.2 Share Withholding..........................................8 A-ii ARTICLE 10 BENEFICIARY DESIGNATION...........................................8 ARTICLE 11 MISCELLANEOUS.....................................................9 11.1 Employment.................................................9 11.2 Participation..............................................9 11.3 Indemnification............................................9 11.4 Successors.................................................9 11.5 Gender and Number..........................................9 11.6 Severability...............................................9 11.7 Requirements of Law.......................................10 11.8 Securities Law Compliance.................................10 11.9 Governing Law.............................................10 A-iii SYBRON INTERNATIONAL CORPORATION AMENDED AND RESTATED 1993 LONG-TERM INCENTIVE PLAN ARTICLE 1 ESTABLISHMENT, PURPOSE AND DURATION 1.1 ESTABLISHMENT OF THE PLAN. Sybron International Corporation, a Wisconsin corporation and successor by merger to Sybron Corporation, a Delaware corporation (the "Company"), hereby amends and restates its Amended and Restated 1993 Long-Term Incentive Plan, such amended and restated plan to be continued to be known as the "Sybron International Corporation Amended and Restated 1993 Long-Term Incentive Plan" (the "Plan"). The Plan permits the granting of Incentive Stock Options and Nonqualified Stock Options to Employees of the Company. The Plan first became effective as of October 1, 1992 (the "Effective Date") and was amended at the 1995 Annual Meeting of Shareholders. Upon approval by the Company's shareholders at the Company's 1998 Annual Meeting of Shareholders, the amendments to the Plan described in the Company's 1998 Annual Meeting Proxy Statement shall become effective and the Plan shall remain in effect as provided in Section 1.3 herein. 1.2 PURPOSE OF THE PLAN. The purpose of the Plan is to promote the success, and enhance the value, of the Company by linking the personal interests of Participants to those of Company shareholders, and by providing Participants with an incentive for outstanding performance. The Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of Participants upon whose judgment, interest, and special effort the successful conduct of its operation largely is dependent. 1.3 DURATION OF THE PLAN. The Plan commenced on the Effective Date, as described in Section 1.1 herein, and shall remain in effect, subject to the right of the Board of Directors to terminate the Plan at any time pursuant to Article 8 herein, until all Shares subject to it shall have been purchased or acquired according to the Plan's provisions. However, in no event may an Award be granted under the Plan on or after the tenth (10th) anniversary of the Plan's Effective Date. ARTICLE 2 DEFINITIONS Whenever used in the Plan, the following terms shall have the meanings set forth below and, when the meaning is intended, the initial letter of the word is capitalized: 1 (a) "Award" means, individually or collectively, a grant under this Plan of Nonqualified Stock Options or Incentive Stock Options. (b) "Award Agreement" means an agreement entered into by the Company and each Participant, as described in Section 6.2 herein. (c) "Beneficial Owner" shall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act. (d) "Board" or "Board of Directors" means the Board of Directors of the Company. (e) "Cause" means fraud, dishonesty, competition with the Company, unauthorized use of the Company's trade secrets or confidential information, or continued gross neglect by the Employee of the duties assigned to him or her by the Board (if such neglect continues for thirty (30) days after notice by the Board to the Employee specifying the duties being neglected by Employee). (f) "Change in Control" of the Company shall be deemed to have occurred if (A) other than as a result of a transaction described in (C) (x) below, any Person, other than DLJ Capital Corporation (which for this purpose includes any trustee of a voting trust for the benefit of DLJ Capital Corporation with respect to the securities held by such voting trustee for the benefit of DLJ Capital Corporation), Thomas O. Hicks, Robert B. Haas or their respective affiliates (collectively, the "Designated Holders"), shall become the Beneficial Owner, directly or indirectly, of securities of the Company representing 25% or more the combined voting power of the Company's then outstanding securities; (B) during any period of two consecutive years (not including any period prior to the execution of the Plan), individuals who at the beginning of such period constituted the Board and any new Director whose election to the Board or nomination for election to the Board by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the Directors then still in office who either were Directors at the beginning of the period or whose election or nomination for election was previously so approved. shall cease for any reason to constitute a majority of the Board; (C) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (x) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 66 2/3% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (y) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person (other than a Designated Holder) acquires more than 25% of the combined voting power of the voting securities of the Company or the surviving entity outstanding immediately after such merger or consolidation; or (D) the stockholders of the Company approve a plan of complete liquidation of the 2 Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. (g) "Code" means the Internal Revenue Code of 1986, as amended. (h) "Committee" means the committee, as specified in Article 3, appointed by the Board to administer the Plan. (i) "Company" means Sybron International Corporation, a Wisconsin corporation and successor by merger to Sybron Corporation, a Delaware corporation, and. with respect to Participants or Employees. any and all Subsidiaries, or any successor thereto as provided in Section 11.4 herein. (j) "Director" means any individual who is a member of the Board of Directors of the Company. (k) "Disability" means a permanent and total disability, within the meaning of Code Section 22(e)(3), as determined by the Committee in good faith, upon receipt of sufficient competent medical advice from one or more individuals, selected by the Committee, who are qualified to give professional medical advice. (l) "Employee" means any full-time, nonunion employee of the Company. Directors who are not otherwise employed by the Company shall not be considered Employees under this Plan. (m) "Exchange Act" means the Securities Exchange Act of 1934, as amended. (n) "Fair Market Value" means the average of the highest and lowest quoted selling prices for Shares on the relevant date, or (if there were no sales on such date) the weighted average of the means between the highest and lowest quoted selling prices on the nearest day before and the nearest day after the relevant date, as reported in The Wall Street Journal or a similar publication selected by the Committee. (o) "Incentive Stock Option" or "ISO" means an option to purchase Shares, granted under Article 6 herein. which is designated as an Incentive Stock Option and is intended to meet the requirements of Section 422 of the Code. (p) "Nonqualified Stock Option" or "NQSO" means an option to purchase Shares, granted under Article 6 herein, which is not intended to be an Incentive Stock Option. (q) "Option" means an incentive Stock Option or a Nonqualified Stock Option. (r) "Option Price" means the price at which a Share may be purchased by a Participant pursuant to an Option, as determined by the Committee. 3 (s) "Participant" means an Employee of the Company who has outstanding an Option granted under the Plan. (t) "Person" shall have the meaning ascribed to such term in Section 3(a) (9) of the Exchange Act and used in Section 13(d) and 14(d) thereof, including a "group" as defined in Section 13(d). (u) "Retirement" shall have the meaning ascribed to such term in the tax-qualified retirement plan of the Company. (v) "Shares" means the shares of common stock of the Company. (w) "Subsidiary" means any corporation in which the Company owns directly, or indirectly through subsidiaries, at least 50 percent of the total combined voting power of all classes of stock, or any other entity (including, but not limited to, partnerships and joint ventures) in which the Company owns at least 50 percent of the combined equity thereof. ARTICLE 3 ADMINISTRATION 3.1 THE COMMITTEE. The Plan shall be administered by the Compensation/Stock Option Committee of the Board, or by any other Committee appointed by the Board consisting of not less than two (2) Directors who are not Employees. The members of the Committee shall be appointed from time to time by, and-shall serve at the discretion of, the Board of Directors. It is intended that the Committee members shall, at all times, qualify as "non-employee directors" pursuant to Rule 16b-3 under the Exchange Act and as "outside directors" pursuant to the requirements of Section 162(m) of the Code. However, the failure to so qualify shall not affect the validity of any Awards made or other actions taken by the Committee in accordance with the provisions of the Plan. If for any reason the Committee does not qualify to administer the Plan, as contemplated by Rule 16b-3 under the Exchange Act or Section 162(m) of the Code, the Board of Directors may appoint a new Committee so as to comply with Rule 16b-3 and Section 162(m). 3.2 AUTHORITY OF THE COMMITTEE. The Committee shall have full power, except as limited by law or by the Articles of Incorporation or Bylaws of the Company, and subject to the provisions herein, to determine the size of grants of Awards; to determine the terms and conditions of such Award grants in a manner consistent with the Plan; to construe and interpret the Plan and any agreement or instrument entered into under the Plan; to establish, amend, or waive rules and regulations for the Plan's administration; and (subject to the provisions of Article 8 herein) to amend the terms and conditions of any outstanding Award to the extent such terms and conditions are within the discretion of the Committee as provided in the Plan. Further, the Committee shall make all other determinations which may be necessary or advisable for the administration of the Plan. As permitted by law, the Committee may delegate its authorities as identified hereunder. 4 3.3 DECISIONS BINDING. All determinations and decisions made by the Committee pursuant to the provisions of the Plan, and all related orders and resolutions of the Board of Directors, shall be final, conclusive, and binding on all persons, including the Company, its stockholders, Employees, Participants, and their estates and beneficiaries. ARTICLE 4 SHARES SUBJECT TO THE PLAN 4.1 NUMBER OF SHARES. Subject to adjustment as provided in Section 4.3 herein, the total number of Shares available for issuance under the Plan is 7,400,000 (as adjusted to reflect the 1995 two-for-one stock split and the addition of 2.400,000 authorized shares in 1998). These Shares may be either authorized but unissued or reacquired Shares. The maximum number of Shares which may be covered by Awards issued to any Employee may not exceed 1,000,000 Shares during any fiscal year. 4.2 LAPSED AWARDS. If any Award granted under the Plan is canceled, terminates, expires, or lapses for any reason, then, subject to such rules and regulations as may be promulgated by the Committee with respect thereto, any Shares subject to such Award may again be available for the grant of any Award under the Plan. 4.3 ADJUSTMENTS IN AUTHORIZED SHARES. In the event of any merger, reorganization, consolidation, recapitalization, separation, liquidation, stock dividend, split-up, share combination, or other change in the corporate structure of the Company affecting the Shares, such adjustment shall be made in the number and class of Shares which may be delivered under the Plan, and in the number and class of and/or price of Shares subject to outstanding Awards under the Plan, as may be determined to be appropriate and equitable by the Committee, in its sole discretion, to prevent dilution or enlargement of rights; and provided that the number of Shares subject to any Award granted shall always be a whole number. ARTICLE 5 ELIGIBILITY AND PARTICIPATION 5.1 ELIGIBILITY. Persons eligible to participate in the Plan include all Employees of the Company, as determined by the Committee, including Employees who are members of the Board, but excluding Directors who are not Employees. 5.2 ACTUAL PARTICIPATION. Subject to the provisions of the Plan, the Committee may, from time to time, select from all eligible Employees, those to whom Awards shall be granted, and shall determine the nature and amount of each Award grant. 5 ARTICLE 6 STOCK OPTIONS 6.1 GRANT OF OPTIONS. Subject to the terms and provisions of the Plan, Options may be granted to Employees at any time and from time to time, as shall be determined by the Committee. The Committee shall have discretion in determining the number of Shares subject to Options granted to each Participant. The Committee may grant ISOs, NQSOs, or a combination thereof. 6.2 AWARD AGREEMENT. Each Option grant shall be evidenced by an Award Agreement that shall specify . the Option Price, the duration of the Option, the number of Shares to which the Option pertains, and such other provisions as the Committee shall determine. The Award Agreement also shall specify whether the Option is intended to be an ISO within the meaning of Section 422 of the Code, or an NQSO whose grant is intended not to fall under the Code provisions of Section 422. 6.3 OPTION PRICE. The Option Price for each grant of an Option shall be determined by the Committee; provided that the Option Price shall not be less than 100 percent of the Fair Market Value of the Shares on the date the Option is granted. 6.4 DURATION OF OPTIONS. Each Option shall expire at such time as the Committee shall determine at the time of grant; provided, however, that no Option shall be exercisable later than the tenth (10th) anniversary date of its grant. 6.5 EXERCISE OF OPTIONS. Options granted under the Plan shall be exercisable at such times and be subject to such restrictions and conditions as the Committee shall in each instance approve, which need not be the same for each grant or for each Participant. However, in no event may any Option granted under this Plan become exercisable prior to six (6) months following the date of its grant. 6.6 PAYMENT. Options shall be exercised by the delivery of a written notice of exercise to the Secretary of the Company, setting forth the number of Shares with respect to which the Option is to be exercised, accompanied by payment in full of the Option Price. The Option Price upon exercise of any Option shall be payable to the Company in full either: (a) in cash or its equivalent, or (b) with the Committee's consent, by tendering previously acquired Shares having a Fair Market Value at the time of exercise equal to the total Option Price (provided that the Shares which are tendered must have been held by the Participant for at least six (6) months prior to their tender to satisfy the Option Price), or (c) with the Committee's consent, by a combination of (a) and (b). The Committee also may allow cashless exercise as permitted under Federal Reserve Board's Regulation T, subject to applicable securities law restrictions, or by any other means which the Committee determines to be consistent with the Plan's purpose and applicable law. The proceeds from such a payment shall be added to the general funds of the Company and shall be used for general corporate purposes. 6 As soon as practicable after receipt of a written notification of exercise and full payment, the Company shall deliver to the Participant, in the Participant's name, Share certificates in an appropriate amount based upon the number of Shares purchased under the Option(s). 6.7 RESTRICTIONS ON SHARE TRANSFERABILITY. The Committee shall impose such restrictions on any Shares acquired pursuant to the exercise of an Option under the Plan as it may deem advisable, including, without limitation, restrictions under applicable Federal securities laws, under the requirements of any stock exchange or market upon which such Shares are then listed and/or traded, and under any blue sky or state securities laws applicable to such Shares. 6.8 TERMINATION OF EMPLOYMENT. If the employment of a Participant shall terminate for any reason other than Cause, all Options held by the Participant which are not vested as of the effective date of employment termination immediately shall be forfeited to the Company (and shall once again become available for grant under the Plan). However, the Committee, in its sole discretion, shall have the right to immediately vest all or any portion of such Options, subject to such terms as the Committee, in its sole discretion, deems appropriate; and provided that the maximum exercise period which may be permitted following employment termination is the shorter of: (i) one (1) year, or (ii) the scheduled expiration date of the Option. Options which are vested as of the effective date of employment termination may be exercised by the Participant within the period beginning on the effective date of employment termination, and ending (a) one (1) year following such date in the case of termination by reason of Death, Disability, or Retirement; or (b) three (3) months following such date in the case of termination for any other reason (and other than for Cause). 6.9 TERMINATION FOR CAUSE. If the employment of a Participant shall terminate for Cause, all outstanding Options held by the Participant immediately shall be forfeited to the Company, and no additional exercise period shall be allowed, regardless of the vested status of the Options. 6.10 NONTRANSFERABILITY OF OPTIONS. No Option granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution; provided, however, that the Committee shall have discretion to waive this restriction, in whole or in part, so long as any such waiver is permitted in a plan exempt from short-swing profit liability pursuant to Rule 16b-3 under the Exchange Act. ARTICLE 7 CHANGE IN CONTROL Upon the occurrence of a Change in Control, unless otherwise specifically prohibited by the terms of Section 11.7 herein, any and all Options granted hereunder 7 shall become immediately exercisable, and shall remain as such for the duration of their term. In addition, subject to Article 8 herein, the Committee shall have the authority to make any modifications to Awards as determined by the Committee to be appropriate before the effective date of the Change in Control. ARTICLE 8 AMENDMENT, MODIFICATION, AND TERMINATION 8.1 AMENDMENT, MODIFICATION AND TERMINATION. With the approval of the Board, at any time and from time to time, the Committee may terminate, amend, or modify the Plan. However, no such amendment, modification, or termination of the Plan may be made without the approval of the stockholders of the Company, if such approval is required by the Code, by the insider trading rules of Section 16 of the Exchange Act, by any national securities exchange or system on which the Shares are then listed or reported, or by a regulatory body having jurisdiction with respect thereto. 8.2 AWARDS PREVIOUSLY GRANTED. No termination, amendment, or modification of the Plan shall in any material manner adversely affect any Award previously granted under the Plan, without the written consent of the Participant holding such Award. ARTICLE 9 WITHHOLDING 9.1 TAX WITHHOLDING. The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state and local taxes (including the Participant's FICA obligation) required by law to be withheld with respect to any grant, exercise, lapsing of restrictions, or payment made under or as a result of the Plan. 9.2 SHARE WITHHOLDING. With respect to tax withholding required upon the exercise of Options, Participants may elect, subject to the approval of the Committee, to satisfy the withholding requirement, in whole or in part, by having the Company withhold Shares having a Fair Market Value on the date the tax is to be determined equal to the minimum marginal total tax which could be imposed on the transaction. All elections shall be irrevocable, made in writing and signed by the Participant. ARTICLE 10 BENEFICIARY DESIGNATION Each Participant under the Plan may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) who shall be entitled to exercise his or her vested Options in the event of his or her death before he or she exercises all vested Options. Each such designation shall revoke all prior designations by the same Participant, shall be in a form prescribed by the Company, and will be effective only when filed by the Participant in writing with the Human Resources Department of 8 the Company during the Participant's lifetime. In the absence of any such designation, vested Options which have not been exercised prior to the Participant's death may be exercised by the administrator of the Participant's estate. ARTICLE 11 MISCELLANEOUS 11.1 EMPLOYMENT. Nothing in the Plan shall interfere with or limit in any way the right of the Company to terminate any Participant's employment at any time, nor confer upon any Participant any right to continue in the employ of the Company. For purposes of the Plan, transfer of employment of a Participant between the Company and any one of its Subsidiaries (or between Subsidiaries) shall not be deemed a termination of employment. 11.2 PARTICIPATION. No Employee shall have the right to be selected to receive an Award under the Plan, or, having been so selected, to be selected to receive a future Award. 11.3 INDEMNIFICATION. Each person who is or shall have been a member of the Committee, or of the Board, shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by him or her in settlement thereof, with the Company's approval, or paid by him or her in satisfaction of any judgment in any such action, suit, or proceeding against him or her, provided he or she shall give the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company's Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless. 11.4 SUCCESSORS. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company. 11.5 GENDER AND NUMBER. Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine; the plural shall include the singular and the singular shall include the plural. 11.6 SEVERABILITY. In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of 9 the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included. 11.7 REQUIREMENTS OF LAW. The granting of Awards and the issuance of Shares under the Plan shall be subject to all applicable, laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required. 11.8 SECURITIES LAW COMPLIANCE. Transactions under the Plan are intended to comply with all applicable conditions of Rule 16b-3 or its successors under the 1934 Act. To the extent any provision of the Plan or action by the Committee fails to so comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Committee. 11.9 GOVERNING LAW. To the extent not preempted by Federal law, the Plan, and all agreements hereunder, shall be construed in accordance with and governed by the laws of the Company's state of incorporation. 10 EX-99.3 6 y99585exv99w3.txt SYBRON INTERNATIONAL CORPORATION AMENDED AND RESTATED 1994 OUTSIDE DIRECTORS' STOCK OPTION PLAN Exhibit 99.3 SYBRON CORPORATION 1994 OUTSIDE DIRECTORS' STOCK OPTION PLAN I. INTRODUCTION 1.01 PURPOSE. This plan shall be known as the Sybron Corporation 1994 Outside Directors' Stock Option Plan (the "Plan"). The purpose of the Plan is to provide an incentive for Outside Directors of Sybron International Corporation to improve corporate performance on a long-term basis. It is intended that the Plan and its operation comply with the provisions of Rule 16b-3 under the Securities Exchange Act of 1934 (or any successor rule). If any provision of the Plan or any grant hereunder would disqualify the Plan or such grant under, or would not comply with, Rule 16b-3 (or any successor rule), such provision or grant shall be construed or deemed amended to conform to Rule 16b-3. 1.02 EFFECTIVE DATE. The Plan first became effective on January 19, 1994, upon approval by the Company's stockholders at the Company's 1994 annual meeting. II. PLAN DEFINITIONS 2.01 DEFINITIONS. For Plan purposes, except where the context clearly indicates otherwise, the following terms shall have the meanings set forth below: (a) "BOARD" shall mean the Board of Directors of the Company. (b) "COMMITTEE" shall have the meaning ascribed to such term in Section 4.01 hereof. (c) "COMPANY" shall mean Sybron International Corporation, a Wisconsin corporation, or any successor thereto as provided in Section 6.07 hereof, and, as the context may require, Sybron Corporation, a Delaware corporation, the Company's predecessor prior to the Delaware-to-Wisconsin change of domicile merger effective January 31, 1994. (d) "COMPANY STOCK" shall mean the Company's Common Stock, par value $0.01 per share, and such other stock and securities as may be substituted therefor pursuant to Section 3.02 hereof. (e) "DIRECTOR" shall mean any individual who is a member of the Board. (f) "FAIR MARKET VALUE" means the average of the highest and lowest quoted selling prices for the Company Stock on the relevant date, or (if there were no sales on such date) the weighted average of the means between the highest and lowest quoted selling prices on the nearest day before and the nearest day after the relevant date, as reported in THE WALL STREET JOURNAL or a similar publication selected by the Committee. (g) "GRANTEE" shall mean any person who has been granted an option under the Plan. (h) "OUTSIDE DIRECTOR" shall mean a Director who is not also an active full-time employee of the Company or a corporation in which the Company owns, directly or indirectly, a voting stock interest of more than fifty percent (50%). III. SHARES SUBJECT TO OPTION 3.01 AVAILABLE SHARES. The total number of shares of Company Stock that may be issued under the Plan shall not exceed One Hundred Thousand (100,000) shares. Shares subject to and not issued under an option which expires, terminates, or is cancelled for any reason under the Plan shall again become available for granting of options. 3.02 CHANGES IN COMMON STOCK. If any stock dividend is declared upon the Company Stock, or if there is any stock split, stock distribution, or other recapitalization of the Company with respect to the Company Stock, resulting in a split or combination or exchange of shares, the aggregate number and kind of shares which may thereafter be granted under the Plan shall be proportionately and appropriately adjusted and the number and kind of shares then subject to options under the Plan and the per share option price therefor shall be proportionately and appropriately adjusted, without any change in the aggregate purchase prices to be paid therefor. IV. ADMINISTRATION 4.01 ADMINISTRATION BY THE COMMITTEE. The Plan shall be administered by the Compensation/Stock Option Committee (the "Committee") of the Board (or any successor committee) which shall have the power, subject to and within the limits of the express provisions of the Plan, to exercise such powers and to perform such acts as are deemed necessary or expedient to promote the best interests of the Company with respect to the Plan. The Committee shall have no discretion as to the amount, price, timing or exercisability of any option granted under this Plan. V. STOCK OPTIONS 5.01 OPTION AGREEMENTS. Each option granted under the Plan shall be evidenced by a stock option agreement between the Company and the Grantee which shall contain the terms and conditions required by this Article V, and such other terms and conditions, not inconsistent herewith, as the Committee may deem appropriate in each case. The holder of an option shall not have any rights as a stockholder with respect to the shares covered by an option until such shares have been delivered to him or her. 5.02 OPTION GRANT SIZE AND GRANT DATE. (a) AUTOMATIC GRANTS. Upon the first meeting of the Board following the Company's 1994, 1995, 1996, 1997 and 1998 annual meetings of stockholders, each person then serving the Company as an Outside Director shall automatically be granted a nonqualified stock option to purchase Three Thousand (3,000) shares, subject to adjustment under Section 3.02 hereof. (b) SPECIAL RULE. If at any time there are not sufficient available shares under the Plan to grant each Outside Director an option to purchase the number of shares 2 provided above, each Outside Director shall receive an option to purchase an equal number of the remaining available shares, determined by dividing the remaining available shares by the number of Outside Directors. 5.03 EXERCISE PRICE. The price at which each share of Company Stock covered by an option may be purchased shall be one hundred percent (100%) of the Fair Market Value of the Company Stock on the date the option is granted. 5.04 PERIOD FOR EXERCISE OF OPTIONS. Each stock option granted under this Plan shall become exercisable six months from the date of grant, regardless of whether the Grantee is still a Director on such date. All rights to exercise an option shall terminate upon the earlier of (a) ten (10) years from the date the option is granted, or (b) two (2) years from the date the Grantee ceases to be a Director. 5.05 METHOD OF EXERCISE. Subject to Section 5.04, each option may be exercised in whole or in part from time to time as specified in the stock option agreement Each Grantee may exercise an option by giving written notice of the exercise to the Company, specifying the number of shares to be purchased, accompanied by payment in full of the exercise price therefor. The exercise price may be paid in cash, by check, or by delivering shares of Company Stock which have been beneficially owned by the Grantee, the Grantee's spouse, or both of them for a period of at least six months prior to the time of exercise ("Delivered Stock") or a combination of cash and Delivered Stock. Delivered Stock shall be valued at its Fair Market Value determined as of the date of exercise of the option. No Grantee shall be under any obligation to exercise any option hereunder. 5.06 LIMITATION ON PLAN AMENDMENTS. The option grants hereunder are intended to be formula awards for the purposes of Rule 16b-3 under the Securities Exchange Act of 1934 (or any successor rule). Accordingly, the provisions of this Article V may not be amended more than once every six months. VI. GENERAL 6.01 NONTRANSFERABILITY. No option granted under the Plan shall be transferable or assignable except by last will and testament or the laws of descent and distribution. During the Grantee's lifetime, options shall be exercisable only by the Grantee or by the Grantee's guardian or legal representative. In the event of the Grantee's death, the Grantee's beneficiary designated pursuant to Section 6.08 hereof or, in the absence of any such designation, the personal representative of the Grantee's estate or the person or persons to whom the option is transferred by will or the laws of descent and distribution may exercise the option in accordance with its terms. 6.02 GENERAL RESTRICTION. Each option shall be subject to the requirement that if at any time the Board shall determine, in its discretion, that the listing, registration, or qualification of securities upon any securities exchange or under any state or federal law, or the consent or approval of any government regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such option or the issue or purchase of securities thereunder, such option may not be exercised in whole or in part 3 unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board. 6.03 EXPIRATION AND TERMINATION OF THE PLAN. Options may be granted under the Plan at any time and from time to time, prior to September 30, 1998, the date on which the Plan will expire, except as to options then outstanding under the Plan, which shall remain in effect until they have been exercised or have expired. The Plan may be abandoned or terminated at any time by the Board except with respect to any options then outstanding under the Plan. 6.04 AMENDMENT MODIFICATION AND TERMINATION. With approval of the Board, at any time and from time to time, the Committee may terminate, amend, or modify the Plan. However, no such amendment, modification, or termination of the Plan may be made without the approval of the stockholders of the Company, if such approval is required by the Internal Revenue Code of 1986, as amended, by the insider trading rules of Section 16 of the Securities Exchange Act of 1934, by any national securities exchange or system on which the Company Stock is then listed or reported, or by a regulatory body having jurisdiction with respect thereto. No termination, amendment, or modification of the Plan shall in any material manner adversely affect any option previously granted under the Plan, without the written consent of the Grantee holding such option. 6.05 WITHHOLDING TAXES. (a) The Company shall have the power and the right to deduct or withhold, or require a Grantee to remit to the Company, an amount sufficient to satisfy any federal, state and local taxes required by law to be withheld with respect to any grant, exercise, or payment made under or as a result of the Plan. (b) With respect to tax withholding which may be required upon the exercise of options, Grantees may elect, subject to the approval of the Committee, to satisfy such withholding requirement, in whole or in part, by having the Company withhold shares of Company Stock having a Fair Market Value on the date the tax is to be determined, equal to the minimum marginal total tax which could be imposed on the transaction. All elections shall be irrevocable, made in writing, signed by the Grantee, and comply with the applicable requirement set forth in (c) below. (c) The Grantee must either: (i) Deliver written notice of the stock withholding election to the Committee at least six (6) months prior to the date specified by the Grantee on which the exercise of the option is to occur; or (ii) Make the stock withholding election in connection with an exercise of an option which occurs during a Window Period. For this purpose, "Window Period" means the period beginning on the third (3rd) business day following the date of public release of the Company's quarterly sales and earnings information, and ending on the twelfth (12th) business day following such date. 4 6.06 CONSTRUCTION. Except as otherwise required by applicable federal laws, the Plan shall be governed by, and construed in accordance with, the laws of the state of the Company's incorporation. 6.07 SUCCESSORS. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company. 6.08 BENEFICIARY DESIGNATION. Each Grantee may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) who shall be entitled to exercise his or her options in accordance with their terms in the event of his or her death before he or she exercises all of his or her outstanding options. Each such designation shall revoke all prior designations by the same Grantee, shall be in a form prescribed by the Company, and will be effective only when filed by the Grantee in writing with the Human Resources Department of the Company during the Grantee's lifetime. 5 EX-99.4 7 y99585exv99w4.txt SYBRON INTERNATIONAL CORPORATION 1999 OUTSIDE DIRECTORS' STOCK OPTION PLAN EXHIBIT 99.4 SYBRON INTERNATIONAL CORPORATION 1999 OUTSIDE DIRECTORS' STOCK OPTION PLAN I. INTRODUCTION 1.01 Purpose. This plan shall be known as the Sybron International Corporation 1999 Outside Directors' Stock Option Plan (the "Plan"). The purpose of the Plan is to provide an incentive for Outside Directors of Sybron International Corporation to improve corporate performance on a long-term basis. It is intended that the Plan and its operation comply with the provisions of Rule 16b-3 under the Securities Exchange Act of 1934 (or any successor rule). If any provision of the Plan or any grant hereunder would disqualify the Plan or such grant under, or would not comply with, Rule 16b-3 (or any successor rule), such provision or grant shall be construed or deemed amended to conform to Rule 16b-3. 1.02 Effective Date. The Plan shall be effective upon its approval by the Company's shareholders at the Company's 1999 annual meeting. If the Plan is approved by the shareholders, the first option grants will automatically be made at the Board meeting immediately following the 1999 annual meeting. II. PLAN DEFINITIONS 2.01 Definitions. For Plan purposes, except where the context clearly indicates otherwise, the following terms shall have the meanings set forth below: (a) "Board" shall mean the Board of Directors of the Company. (b) "Committee" shall have the meaning ascribed to such term in Section 4.01 hereof. (c) "Company" shall mean Sybron International Corporation, a Wisconsin corporation, or any successor thereto as provided in Section 6.07 hereof. (d) "Company Stock" shall mean the Company's Common Stock, par value $0.01 per share, and such other stock and securities as may be substituted therefor pursuant to Section 3.02 hereof. (e) "Director" shall mean any individual who is a member of the Board. (f) "Fair Market Value" means the average of the highest and lowest quoted selling prices for the Company Stock on the relevant date, or (if there were no sales on such date) the average of the means between the highest and lowest quoted selling prices on the nearest day before and the nearest day after 1 the relevant date, as reported in The Wall Street Journal or a similar publication selected by the Committee. (g) "Grantee" shall mean any person who has been granted an option under the Plan. (h) "Outside Director" shall mean a Director who is not also an active full-time employee of the Company or a corporation in which the Company owns, directly or indirectly, a voting stock interest of more than fifty percent (50%). III. SHARES SUBJECT TO OPTION 3.01 Available Shares. The total number of shares of Company Stock that may be issued under the Plan shall not exceed Four Hundred Eighty Thousand (480,000) shares. Shares subject to and not issued under an option which expires, terminates, or is canceled for any reason under the Plan shall again become available for granting of options. 3.02 Changes in Common Stock. If any stock dividend is declared upon the Company Stock, or if there is any stock split, stock distribution, or other recapitalization of the Company with respect to the Company Stock, resulting in a split or combination or exchange of shares, the aggregate number and kind of shares which may thereafter be granted under the Plan shall be proportionately and appropriately adjusted and the number and kind of shares then subject to options under the Plan and the per share option price therefor shall be proportionately and appropriately adjusted, without any change in the aggregate purchase prices to be paid therefor. IV. ADMINISTRATION 4.01 Administration by the Committee. The Plan shall be administered by the Compensation/Stock Option Committee (the "Committee") of the Board (or any successor committee) which shall have the power, subject to and within the limits of the express provisions of the Plan, to exercise such powers and to perform such acts as are deemed necessary or expedient to promote the best interests of the Company with respect to the Plan. V. STOCK OPTIONS 5.01 Option Agreements. Each option granted under the Plan shall be evidenced by a stock option agreement between the Company and the Grantee which shall contain the terms and conditions required by this Article V, and such other terms and conditions, not inconsistent herewith, as the Committee may deem appropriate in each case. The holder of an option shall not have any rights as a shareholder with respect to the shares covered by an option until such shares have been delivered to him or her. 2 5.02 Option Grant Size and Grant Date. (a) Automatic Grants. Upon the first meeting of the Board following the Company's 1999, 2000, 2001, 2002 and 2003 annual meetings of shareholders, each person then serving the Company as an Outside Director shall automatically be granted a nonqualified stock option to purchase Twelve Thousand (12,000) shares, subject to adjustment under Section 3.02 hereof. (b) Special Rule. If at any time there are not sufficient available shares under the Plan to grant each Outside Director an option to purchase the number of shares provided above, each Outside Director shall receive an option to purchase an equal number of the remaining available shares, determined by dividing the remaining available shares by the number of Outside Directors. 5.03 Exercise Price. The price at which each share of Company Stock covered by an option may be purchased shall be one hundred percent (100%) of the Fair Market Value of the Company Stock on the date the option is granted. 5.04 Period for Exercise of Options. Each stock option granted under this Plan shall be exercisable immediately upon grant. All rights to exercise an option shall terminate upon the earlier of (a) ten (10) years from the date the option is granted, or (b) two (2) years from the date the Grantee ceases to be a Director. 5.05 Method of Exercise. Subject to Section 5.04, each option may be exercised in whole or in part from time to time as specified in the stock option agreement. Each Grantee may exercise an option by giving written notice of the exercise to the Company, specifying the number of shares to be purchased, accompanied by payment in full of the exercise price therefor. The exercise price may be paid in cash, by check, or by delivering shares of Company Stock which have been beneficially owned by the Grantee, the Grantee's spouse, or both of them for a period of at least six months prior to the time of exercise ("Delivered Stock") or a combination of cash and Delivered Stock. Delivered Stock shall be valued at its Fair Market Value determined as of the date of exercise of the option. No Grantee shall be under any obligation to exercise any option hereunder. VI. GENERAL 6.01 Nontransferability. No option granted under the Plan shall be transferable or assignable except by last will and testament or the laws of descent and distribution; provided, however, that the Committee may, in its discretion, grant stock options that are transferable to family members of the Grantee or to trusts or partnerships for such family members. The Committee may also amend outstanding stock options to provide for such transferability. In the event of the Grantee's death, the Grantee's beneficiary designated pursuant to Section 6.08 hereof or, in the absence of any such designation, the personal representative of the Grantee's estate or the person or persons to whom the option is transferred by will or the laws of descent and distribution may exercise the option in accordance with its terms. 3 6.02 General Restriction. Each option shall be subject to the requirement that if at any time the Board shall determine, in its discretion, that the listing, registration, or qualification of securities upon any securities exchange or under any state or federal law, or the consent or approval of any government regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such option or the issue or purchase of securities thereunder, such option may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board. 6.03 Expiration and Termination of the Plan. Options may be granted under the Plan at any time and from time to time, prior to September 30, 2003, the date on which the Plan will expire, except as to options then outstanding under the Plan, which shall remain in effect until they have been exercised or have expired. The Plan may be abandoned or terminated at any time by the Board except with respect to any options then outstanding under the Plan. 6.04 Amendment, Modification and Termination. With approval of the Board, at any time and from time to time, the Committee may terminate, amend, or modify the Plan. However, no such amendment, modification, or termination of the Plan may be made without the approval of the shareholders of the Company, if such approval is required by the Internal Revenue Code of 1986, as amended, by the insider trading rules of Section 16 of the Securities Exchange Act of 1934, by any national securities exchange or system on which the Company Stock is then listed or reported, or by a regulatory body having jurisdiction with respect thereto. No termination, amendment, or modification of the Plan shall in any material manner adversely affect any option previously granted under the Plan, without the written consent of the Grantee holding such option. 6.05 Withholding Taxes. The Company shall have the power and the right to deduct or withhold, or require a Grantee to remit to the Company, an amount sufficient to satisfy any federal, state and local taxes required by law to be withheld with respect to any grant, exercise, or payment made under or as a result of the Plan. With respect to tax withholding which may be required upon the exercise of options, Grantees may elect, subject to the approval of the Committee, to satisfy such withholding requirement, in whole or in part, by having the Company withhold shares of Company Stock having a Fair Market Value on the date the tax is to be determined, equal to the minimum marginal total tax which could be imposed on the transaction. All elections shall be irrevocable, made in writing, and signed by the Grantee. 6.06 Construction. Except as otherwise required by applicable federal laws, the Plan shall be governed by, and construed in accordance with, the laws of the state of the Company's incorporation. 6.07 Successors. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company. 4 6.08 Beneficiary Designation. Each Grantee may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) who shall be entitled to exercise his or her options in accordance with their terms in the event of his or her death before he or she exercises all of his or her outstanding options. Each such designation shall revoke all prior designations by the same Grantee, shall be in a form prescribed by the Company, and will be effective only when filed by the Grantee in writing with the Human Resources Department of the Company during the Grantee's lifetime. 5 697-PS-99 EX-99.5 8 y99585exv99w5.txt APOGENT TECHNOLOGIES INC. 2001 EQUITY INCENTIVE PLAN EXHIBIT 99.5 APOGENT TECHNOLOGIES INC. 2001 EQUITY INCENTIVE PLAN ARTICLE 1. ESTABLISHMENT, PURPOSE AND DURATION 1.1 ESTABLISHMENT OF THE PLAN. Apogent Technologies Inc., a Wisconsin corporation (the "COMPANY"), establishes this incentive compensation plan known as the "Apogent Technologies Inc. 2001 Equity Incentive Plan" (the "PLAN") effective as of October 1, 2001 (the "EFFECTIVE DATE"), subject to approval of the Company's shareholders. The validity of any awards granted prior to shareholder approval of the Plan is contingent upon such shareholder approval. The Plan provides for various forms of incentive compensation to Employees and Directors. 1.2 PURPOSE OF THE PLAN. The purpose of the Plan is to promote the success and enhance the value of the Company by linking the personal interests of Participants to those of Company shareholders, and by providing Participants with annual and long-term incentives for outstanding performance. The Plan will provide the Company with increased flexibility to motivate, attract, and retain the services of Participants whose judgment, interest, and special efforts contribute to the success of the Company. 1.3 DURATION OF THE PLAN. Subject to approval by the shareholders of the Company, the Plan shall commence on the Effective Date and shall remain in effect, subject to the right of the Board of Directors of the Company to terminate the Plan at any time pursuant to Article 13 herein, until the 10th anniversary of the Effective Date. After the termination of the Plan, no Awards may be granted under the Plan, but previously granted Awards shall remain outstanding in accordance with their applicable terms and conditions. 1.4 PRIOR PLANS. Effective December 15, 2001, no further awards shall be made under the Company's Amended and Restated 1993 Long-Term Incentive Plan and its 1999 Outside Directors' Stock Option Plan; provided, however, that any rights theretofore granted under either such prior plan shall remain outstanding in accordance with the applicable terms and conditions of such prior plan. ARTICLE 2. DEFINITIONS Whenever used in the Plan, the following terms have the meanings set forth below, and when the meaning is intended, the initial letter of the word is capitalized: (a) "AFFILIATE" means an entity closely related by ownership to the Company that is designated as an Affiliate by the Board. (b) "AWARD" means a grant under this Plan of (i) an Option, (ii) an SAR, (iii) Restricted Stock, (iv) a Restricted Stock Unit, (v) a Performance Award, or (vi) a combination of any of the above. (c) "AWARD AGREEMENT" means an agreement entered into by each Participant and the Company setting forth the terms and provisions applicable to Awards granted under this Plan. (d) "BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the Company. (e) "CASH BONUS" means cash paid in satisfaction of a Performance Award. (f) "CODE" means the Internal Revenue Code of 1986, as amended from time to time. (g) "COMMITTEE" means the Compensation Committee of the Company, as appointed by the Board to administer the Plan, or such other committee as may be appointed by the Board consistent with Section 3.1. (h) "COMPANY" means Apogent Technologies Inc., a Wisconsin corporation or any successor thereto as provided in Article 16 herein. (i) "COVERED EMPLOYEE" means a Participant who is or may be a "covered employee" within the meaning of Section 162(m)(3) of the Internal Revenue Code in the year that an Award is taxable to such Participant. (j) "DIRECTOR" means a member of the Board of Directors of the Company or any Subsidiary or Affiliate. (k) "DISABILITY" means, with respect to any ISOs, a permanent and total disability within the meaning of Code Section 22(e)(3), and with respect to all other Awards under the Plan, a medically determinable mental or physical impairment that renders a Participant totally and presumably permanently unable to continue in employment with the Company and all Affiliates. The determination of disability shall be made by the Committee in good faith upon receipt of sufficient competent medical advice from one or more individuals, selected by the Committee, who are qualified to give professional medical advice. (l) "EFFECTIVE DATE" has the meaning ascribed to such term in Section 1.1 hereof. (m) "EMPLOYEE" means any employee of the Company or of the Company's Subsidiaries or Affiliates. (n) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from time to time. (o) "FAIR MARKET VALUE" means the closing price for Shares on the relevant date, or if there were no sales on such date, the closing price on the nearest day 2 before the relevant date, on a stock exchange or over-the-counter, as determined by the Committee. (p) "INCENTIVE STOCK OPTION" or "ISO" means an option to purchase Shares granted under Article 6 herein that is designated as an Incentive Stock Option and is intended to meet the requirements of Section 422 of the Code. (q) "NON-QUALIFIED STOCK OPTION" or "NQSO" means an option to purchase Shares granted under Article 6 herein that is not intended to be an Incentive Stock Option or that otherwise does not meet such requirements. (r) "OPTION" means an Incentive Stock Option or a Non-Qualified Stock Option granted under Article 6 herein. (s) "OPTION PRICE" means the price at which a Share may be purchased by a Participant pursuant to an Option. (t) "PARTICIPANT" means a Director or Employee who has been selected to receive or who has outstanding an Award granted under the Plan. (u) "PERFORMANCE AWARD" means an Award representing a contingent right to receive cash or Shares at the end of a Performance Period upon the attainment of specified Performance Goals. (v) "PERFORMANCE GOALS" means the performance goal(s) established by the Committee in connection with the granting of a Performance Award. Performance Goals shall be based at the Company, division, and/or business unit levels and expressed as the attainment of one or more of the following business criteria measured on an absolute basis or in terms of growth or reduction: net income (pre-tax or after-tax and with adjustments as stipulated); earnings per share; return measures (including, but not limited to, return on assets, equity, capital or investment); operating income; earnings before or after depreciation, interest, taxes and/or amortization; expense ratio; working capital ratio; stock price; shareholder return; cash flow; gross revenues; margin (including, but not limited to, gross, operating, and variable); and capital expenditures. (w "PERFORMANCE PERIOD" means a period of time determined by the Committee over which performance is measured for the purpose of determining a Participant's right to and the payment value of any Performance Award. (x) "PERFORMANCE SHARES" means Shares (which may include Restricted Stock) issued to a Participant in satisfaction of a Performance Award. (y) "PERIOD OF RESTRICTION" means the time period established by the Committee pursuant to Section 8.4 during which Restricted Stock or Restricted Stock Units are limited in some way and the corresponding Shares or Units are subject to a substantial risk of forfeiture. 3 (z) "PERSON" has the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a "group" as defined in Section 13(d). (aa) "PLAN" means the Apogent Technologies Inc. 2001 Equity Incentive Plan. (bb) "RESTRICTED STOCK" means Shares that are subject to restrictions under the Plan pursuant to Article 8 herein. (cc) "RESTRICTED STOCK UNIT" means the right to receive Shares at a specified time or upon the occurrence of a specified event in the future pursuant to the terms and conditions of an Award, as described in Article 8 herein. (dd) "RETIREMENT" has the meaning ascribed to it under the Company's tax qualified retirement plan, or such other meaning as determined by the Committee. (ee) "SHARES" means shares of common stock of the Company. (ff) "STOCK APPRECIATION RIGHT" or "SAR" means an Award, granted alone or in connection with a related Option, designated as an SAR, pursuant to the terms of Article 7 herein. (gg) "SUBSIDIARY" means any corporation in which the Company owns directly, or indirectly through subsidiaries, at least fifty percent (50%) of the total combined voting power of all classes of stock, or any other entity (including, but not limited to, partnerships and joint ventures) in which the Company owns at least fifty percent (50%) of the combined equity thereof. (hh) "UNRESTRICTED STOCK" means Shares issued under the Plan without restriction other than such transfer or other restrictions as the Committee may deem advisable to assure compliance with law. ARTICLE 3. ADMINISTRATION 3.1 THE COMMITTEE. The Plan shall be administered by the Compensation Committee of the Board of the Company, or by any other Committee appointed by the Board consisting of not less than two (2) non-Employee Directors. The members of the Committee shall be appointed from time to time by, and shall serve at the discretion of, the Board of Directors. It is intended that at all times the Committee shall comprise solely Directors who are both: (a) Non-Employee Directors, as defined in Rule 16b-3 under the Exchange Act; and (b) Outside Directors, as defined in Treas. Reg. 1.162-27. 3.2 AUTHORITY OF THE COMMITTEE. The Committee shall have full power, except as limited by law or by the Articles of Incorporation or Bylaws of the Company and subject to the provisions herein, to: (a) select Employees and Directors who will participate in the Plan; (b) determine the size and types of Awards; (c) determine the terms and conditions of such Awards in a manner consistent with the Plan; (d) construe 4 and interpret the Plan and any agreement or instrument entered into under the Plan; (e) establish, amend, or waive rules and regulations for the Plan's administration; and (f) subject to express limitations set forth in the Plan, amend the terms and conditions of any outstanding Award to the extent such terms and conditions are within the discretion of the Committee as provided in the Plan. Further, the Committee shall make all other determinations that it deems necessary or advisable for the administration of the Plan. As permitted by law, the Committee may delegate its authority herein. 3.3 NO OPTION RE-PRICING. Notwithstanding anything in the Plan to the foregoing, the Committee may not re-price, or cancel and re-grant, any Option to reduce the Option Price. 3.4 DECISIONS BINDING. All determinations and decisions made by the Committee pursuant to the provisions of the Plan and all related orders or resolutions of the Board of Directors shall be final, conclusive, and binding on all Persons, including the Company, its shareholders, Employees, Participants, and their estates and beneficiaries. ARTICLE 4. SHARES SUBJECT TO THE PLAN 4.1 NUMBER OF SHARES. Subject to adjustment as provided in this Article 4: (a) The total number of Shares available for issuance under the Plan shall be 7,000,000. (b) The total number of Shares issuable under the Plan (included in the 7,000,000 Share amount above) from Awards other than Options shall not exceed 2,000,000. (c) The maximum number of Shares issuable under ISOs shall not exceed 7,000,000. 4.2 SHARES NOT COUNTED AGAINST SHARE LIMIT. For purposes of the Plan, the following shall not be counted against the aggregate number of Shares available for issuance under the Plan: (a) Shares that are forfeited back to the Company under the Plan or any prior plans; (b) Shares that are delivered as full or partial payment to the Company in connection with any Award; (c) Shares that are delivered or withheld to satisfy the tax withholding obligations related to an Award under the Plan; (d) Awards that are paid or settled in cash or a form other than Shares; (e) Shares subject to Awards that are canceled, terminated, expired, or lapse; and (f) Shares that are issued by the Company, and any Awards that are granted by, or become obligations of, the Company, through the assumption by the Company or an Affiliate, or in substitution for, outstanding awards previously granted by an acquired Company (or previously granted by a predecessor employer (or direct or indirect parent thereof) in the case of persons who become employed by the Company (or an Affiliate) in connection with a business or asset acquisition or similar transaction). 5 4.3 ADJUSTMENTS IN AUTHORIZED SHARES. In the event of any merger, reorganization, consolidation, recapitalization, separation, liquidation, stock dividend, split-up, Share combination, or other change in the corporate structure of the Company affecting the Shares, such adjustment shall be made in the number of class of Shares that may be delivered under the Plan and in the number and class of and/or price of Shares subject to outstanding Awards granted under the Plan, as may be determined to be appropriate and equitable by the Committee, in its sole discretion, to prevent dilution or enlargement of rights. The number of Shares subject to any Award shall be a whole number. 4.4 UNUSUAL OR NONRECURRING EVENTS. The Committee may make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring events (including, without limitation, the events described in Section 4.3 hereof) affecting the Company or the financial statements of the Company or of changes in applicable laws, regulations, or accounting principles, whenever the Committee determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan; provided that no such adjustment shall be authorized to the extent that such authority would be inconsistent with the Plan's or any Performance Award's meeting the requirements of Section 162(m) of the Code, as from time to time amended. ARTICLE 5. ELIGIBILITY AND PARTICIPATION 5.1 ELIGIBILITY. Persons eligible to participate in this Plan include all Directors and Employees of the Company, its Subsidiaries and Affiliates, as determined by the Committee. 5.2 ACTUAL PARTICIPATION. Subject to the provisions of the Plan, the Committee may, from time to time, select from all eligible Participants those to whom Awards shall be granted and shall determine the nature and amount of each Award. 5.3 MAXIMUM INDIVIDUAL GRANTS. Subject to adjustment as provided in Article 4 herein, no Participant may receive, during any three consecutive calendar year period, Awards covering an aggregate of more than 1,500,000 Shares, and the maximum amount of Cash Bonuses that may be paid to any Participant in any three consecutive calendar year period pursuant to Performance Awards shall not exceed $3,000,000. ARTICLE 6. STOCK OPTIONS 6.1 GRANT OF OPTIONS. Subject to the terms and provisions of the Plan, Options may be granted to Participants at any time, and from time to time, as shall be determined by the Committee. The Committee shall have discretion in determining the number of Shares subject to Options granted to each Participant. The Committee may grant ISOs, NQSOs, or a combination thereof. If required by applicable tax rules regarding a particular grant of ISOs, to the extent that the aggregate Fair Market Value (determined as of the date an ISO is granted) of Shares with respect to which ISOs are 6 exercisable for the first time by a Participant during any calendar year exceeds $100,000 (or such other limit as prescribed by the Code), such Option grant shall be treated as a grant of NQSOs rather than ISOs. 6.2 OPTION AWARD AGREEMENT. Each Option grant shall be evidenced by an Option Award Agreement that shall specify the Option Price, the duration of the Option, the number of Shares to which the Option pertains, and such other provisions as the Committee shall determine. The Option Award Agreement also shall specify whether the Option is intended to be an ISO or an NQSO. 6.3 OPTION PRICE. The Option Price for each grant of an Option shall be determined by the Committee; provided that the Option Price shall not be less than one hundred percent (100%) of the Fair Market Value of a Share on the date the Option is granted. 6.4 DURATION OF OPTIONS. Each Option shall expire at such time as the Committee shall determine at the time of grant; provided, however, that no Option shall be exercisable later than the tenth (10th) anniversary date of its grant. 6.5 EXERCISE OF OPTIONS. Options granted under the Plan shall be exercisable at such times and be subject to such restrictions and conditions as the Committee shall in each instance approve, which need not be the same for each grant or for each Participant. 6.6 PAYMENT. Options shall be exercised by the delivery of notice of exercise to the Secretary of the Company (in form acceptable to the Company), setting forth the number of Shares with respect to which the Option is to be exercised, accompanied by payment in full of the Option Price. The Option Price upon exercise of any Option shall be payable to the Company in full either: (a) in cash or its equivalent, or (b) by tendering previously acquired Shares having an aggregate Fair Market Value at the time of exercise equal to the total Option Price (provided that the Shares that are tendered must have been held by the Participant for at least six (6) months prior to their tender to satisfy the Option Price), or (c) by a combination of (a) and (b). The Committee also may allow exercise of Options as by any other means (including cashless exercise) that the Committee determines to be consistent with the Plan's purpose and applicable law. 6.7 RESTRICTIONS ON TRANSFERABILITY. No Option granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution, and shall be exercisable by a Participant during his or her lifetime only by the Participant, except that vested NQSOs may be transferred by a Participant to a family member (as defined in the General Instructions to SEC Form S-8) of a Participant or to a trust for the benefit of such family member. The Committee may also impose such restrictions on any Shares acquired pursuant to the exercise of an Option granted under this Article 6 as it may deem advisable,' including, without limitation, restrictions under applicable federal securities laws, under the requirements of any stock exchange or market upon which such Shares are then listed and/or traded, or under any blue sky or state securities laws applicable to such Shares. 7 ARTICLE 7. STOCK APPRECIATION RIGHTS 7.1 GRANT OF SARS. Subject to the terms and conditions of the Plan, SARs may be granted to a Participant at any time and from time to time as determined by the Committee. The Committee shall have complete discretion in determining: (i) the number of SARs granted to each Participant (subject to Article 4 herein); (ii) whether said SARs are stand-alone or in tandem with Options; and (iii) the terms and conditions pertaining to such SARs. 7.2 EXERCISE OF SARS. SARs may be exercised upon whatever terms and conditions the Committee, in its sole discretion, imposes on them. 7.3 SAR AGREEMENT. Each SAR grant shall be evidenced by an Award Agreement that shall specify the grant price, the term of the SAR, and such other provisions as the Committee shall determine. 7.4 PAYMENT OF SAR AMOUNT. Upon exercise of an SAR, a Participant shall be entitled to receive prompt payment from the Company in an amount determined by multiplying: (a) the difference between the Fair Market Value of a Share on the date of exercise over the grant price; by (b) the number of Shares with respect to which the SAR is exercised. At the discretion of the Committee, the payment upon the exercise of an SAR may be in cash, in Shares of equivalent value, or in some combination thereof. 7.5 NON-TRANSFERABILITY OF SARS. No SAR granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, all SARs granted to a Participant under the Plan shall be exercisable during his or her lifetime only by such Participant. ARTICLE 8. RESTRICTED STOCK AND RESTRICTED STOCK UNITS 8.1 AWARDS. (a) In consideration for the performance of services rendered or to be rendered or in lieu of other compensation, the Committee, at any time and from time to time, may grant Restricted Stock to Participants on such terms and conditions and with such restrictions as the Committee shall determine, all of which may differ with respect to each Participant. (b) Each Award of Restricted Stock shall constitute an immediate transfer of the record and beneficial ownership of the applicable Shares to the Participant, entitling the Participant to all voting and other ownership rights, subject to the restrictions contained in the applicable Restricted Stock agreement. Unless the Committee otherwise 8 determines, certificates evidencing Shares of Restricted Stock shall remain in the possession of the Company until such Shares are free of their restrictions. (c) In consideration for the performance of services rendered or to be rendered or in lieu of other compensation, the Committee, at any time and from time to time, may grant Restricted Stock Units to Participants on such terms and conditions and with such restrictions as the Committee shall determine, all of which may differ with respect to each Participant. Restricted Stock Units are not outstanding Shares and do not entitle a Participant to any dividend, voting or other rights in respect of any Shares represented thereby, unless otherwise determined by the Committee. 8.2 AWARD AGREEMENT. The specific terms and conditions relating to each Restricted Stock and Restricted Stock Unit grant shall be evidenced by an Award Agreement that specifies the Period of Restriction and the other restrictions applicable to said Award, as the Committee shall determine. 8.3 RESTRICTIONS. (a) Restricted Stock and Restricted Stock Unit Awards shall be subject to such restrictions determined by the Committee (including without limitation, one or more restrictions constituting a "substantial risk of forfeiture" within the meaning of Section 83 of the Code and regulations promulgated thereunder) which may be based on the passage of time, the achievement of Performance Goals, or upon the occurrence of other events as determined by the Committee. Unless otherwise approved by the Committee or provided for in the Restricted Stock Award or Restricted Stock Unit Award, to the extent that the applicable Shares remain subject to restrictions at such time as the Participant ceases to be employed by the Company or ceases to provide services to the Company, such Shares shall be forfeited and all rights of the Participant to such Shares shall terminate without further obligation on the part of the Company. (b) The Committee shall have the authority to remove any or all of the restrictions on the Restricted Stock or Restricted Stock Units whenever it may determine that, by reason of changes in applicable laws or other changes in circumstances. arising after the applicable date of grant, such action is appropriate. 8.4 PERIOD OF RESTRICTION. The Period of Restriction of Restricted Stock and Restricted Stock Units shall commence on the date of grant and shall be established by the Committee in the applicable Award Agreement; provided, however, that Restricted Stock or Restricted Stock Units shall vest and restrictions shall lapse no earlier than three years after the date of grant unless the vesting of the Restricted Stock or Restricted Stock Units is accelerated as a result of the Participant's death, Disability, retirement, involuntary termination or upon a change in control (as such terms are defined in the applicable Award Agreement). Notwithstanding the prior sentence, the limitation set forth above shall not apply if the Restricted Stock and Restricted Stock Units are granted as payment in lieu of compensation that would otherwise have been payable to a Participant in cash. 9 8.5 DELIVERY OF SHARES. At the expiration of the Period of Restriction, a stock certificate evidencing the Restricted Stock or Restricted Stock Units (to the nearest full Share) shall be delivered without charge to the Participant or his personal representative. 8.6 TRANSFERABILITY. Restricted Stock and Restricted Stock Units granted herein may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the end of the applicable Period(s) of Restriction established by the Committee and specified in the applicable Award Agreement. ARTICLE 9. PERFORMANCE AWARDS 9.1 GRANT OF PERFORMANCE AWARDS. The Committee may grant performance-based Awards. Said Performance Awards may take the form of Performance Shares (i.e., Shares issued upon the attainment of pre-established Performance Goals) or Cash Bonuses (i.e., cash paid upon the attainment of pre-established Performance Goals). The Committee shall determine the eligible Participants to whom, and the time or times at which, Performance Awards shall be granted as well as the conditions upon which such Awards shall be paid. 9.2 TERMS AND CONDITIONS. Performance Awards shall be subject to the following terms and conditions: (a) Performance Awards to Covered Employees shall comply with Section 162(m) of the Code and shall be paid solely on account of the attainment of one or more pre-established, objective Performance Goals. Performance Goals shall be based on one or more business criteria that apply to a business unit, business division, or the Company as a whole. (b) Performance Goals shall be established in writing by the Committee not later than 90 days after the commencement of the Performance Period to which the Performance Goal relates. The pre-established Performance Goal must state, in terms of an objective formula or standard, the method for computing the amount of compensation payable to the Participant if the Performance Goal is attained. (c) Following the close of the Performance Period, the Committee shall determine whether the Performance Goal was achieved, in whole or in part, and determine the amount payable to the Participant. (d) In the event that the Committee grants a Performance Award to a Participant who is not a Covered Employee, the Committee may establish such subjective or objective performance-related goals, including individual goals, that it deems appropriate. 9.3 TRANSFERABILITY. Performance Awards granted herein may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated. 10 ARTICLE 10. BENEFICIARY DESIGNATION Each Participant under the Plan may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under the Plan is to be paid in case of his or her death before he receives any or all of such benefit and who is eligible to exercise vested Options and SARs in the event of the Participant's death prior to such exercise. Each such designation shall revoke all prior designations by the same Participant, shall be in the form prescribed by the Company, and will be effective only when any necessary spousal consent is obtained and filed by the Participant in writing with the Human Resources Department of the Company during the Participant's lifetime. In the absence of any such designation, benefits remaining unpaid at the Participant's death shall be paid to the Participant's estate and any vested Options and/or SARs not previously exercised prior to the Participant's death may be exercised by the administrator of the Participant's estate. In case of disputes over the proper beneficiary, the Company reserves the right to make any or all payments to the Participant's estate. ARTICLE 11. DEFERRALS The Committee may permit a Participant to defer such Participant's receipt of the payment of cash or the delivery of Shares that would otherwise be due to such Participant by virtue of the exercise of the Option or SAR, the lapse, satisfaction, or waiver of restrictions with respect to Restricted Stock or Restricted Stock Units, or the satisfaction of requirements with respect to Performance Awards. If any such deferral election is required or permitted, the Committee shall, in its sole discretion, establish rules and procedures for such payment deferrals. ARTICLE 12. RIGHTS OF EMPLOYEES 12.1 EMPLOYMENT. Nothing in the Plan shall interfere with or limit in any way the right of the Company to terminate any Participant's employment at any time, nor confer upon any Participant any right to continue in the employ of the Company. For purposes of the Plan, transfer of employment of a Participant between the Company and any one of its Subsidiaries or Affiliates (or between Subsidiaries and/or Affiliates) shall not be deemed a termination of employment. 12.2 PARTICIPATION. Nothing in this Plan shall grant to an Employee or Director the right to be selected to receive an Award under this Plan, or having been so selected, to be selected to receive a future Award. 12.3 RIGHTS AS A SHAREHOLDER. Except as provided in Section 8.1(b), a Participant shall have none of the rights of a shareholder with respect to Shares covered by any Award until the Participant becomes the record holder of such Shares. ARTICLE 13. AMENDMENT, MODIFICATION, AM) TERMINATION 13.1 AMENDMENT, MODIFICATION AND TERMINATION. With the approval of the Board, at any time and from time to time, the Committee may terminate, amend, or 11 modify the Plan in whole or in part; provided, however, that neither the Committee nor the Board shall have authority to amend Section 4.1 herein. No termination, amendment, or modification of the Plan shall adversely affect in any material way any Award previously granted under the Plan without the written consent of the affected Participant (or if the Participant is not then living, the affected beneficiary); provided that adjustments pursuant to Section 4.3 shall not be subject to the foregoing limitations of this Section 13.1. 13.2 AWARDS PREVIOUSLY GRANTED. The Committee may adjust the amount of any Awards earned or granted hereunder when it believes that the integrity, purpose, and fairness of the Plan will be better served. Any such adjustment made after the beginning of the period in which the Award(s) are granted or earned shall not, however, permit Performance Awards, either to any person or in the aggregate, to be greater than they otherwise would have been upon attainment of the applicable Performance Goals for such period; provided that adjustments pursuant to Sections 4.3 and 4.4 shall not be subject to the foregoing limitations of this Section 13.2. 13.3 UNRESTRICTED STOCK. The Committee may, at its discretion, pay or settle any Award with Unrestricted Stock. ARTICLE 14. WITHHOLDING 14.1 TAX WITHHOLDING. The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state, and local taxes (including the Participant's FICA obligation) required by law to be withheld with respect to any taxable event arising or as a result of this Plan. 14.2 SHARE WITHHOLDING. With respect to withholding required upon the exercise of Options or SARs, upon the lapse of restrictions on Restricted Stock and Restricted Stock Units, or upon any other taxable event hereunder, Participants may elect, subject to the approval of the Committee, to satisfy the withholding requirement, in whole or in part, by having the Company withhold Shares. ARTICLE 15. INDEMNIFICATION Each person who is, or shall have been, a member of the Committee or of the Board shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him in connection with or resulting from any claim, action, suit, or proceeding to which he may be a party or in which he may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by him in settlement thereof, with the Company's approval, or paid by him or her in satisfaction of any judgment in any such action, suit, or proceeding against him, provided that he shall give the Company an opportunity, at its own expense, to handle and defend the same before he undertakes to handle and defend it on his own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which 12 such persons may be entitled under the Company's Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless. ARTICLE 16. SUCCESSORS All obligations of the Company under the Plan, with respect to Awards granted hereunder, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company. ARTICLE 17. LEGAL CONSTRUCTION 17.1 GENDER AND NUMBER. Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine; the plural shall include the singular; and the singular shall include the plural. 17.2 SEVERABILITY. In the event that any provision of this Plan shall for any reason be held illegal or invalid, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included. 17.3 REQUIREMENTS OF LAW. The granting of Awards and the issuance of Shares under the Plan shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required. 17.4 SECURITIES LAW COMPLIANCE. Transactions under this Plan are intended to comply with all applicable conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent any provision of the Plan or action by the Committee fails to so comply, it shall be deemed null and void, as determined by the Committee. 17.5 CODE SECTION 162(m). If a Performance Award granted to a Covered Employee fails to meet the requirements of Section 162(m) of the Code, it shall be deemed null and void, as determined by the Committee. 17.6 GOVERNING LAW. To the extent not preempted by Federal law, the Plan and all agreements hereunder shall be construed in accordance with and governed by the laws of the State of Wisconsin. 13 -----END PRIVACY-ENHANCED MESSAGE-----