EX-13 3 nov2102_ex13.txt Exhibit 13 WAIVER AGREEMENT AGREEMENT, dated as of October __, 2002, by and among Fisher Scientific International Inc., a Delaware corporation (the "Company") and the undersigned parties to the Investors' Agreement (as defined below) as Shareholders (the "Shareholders"). W I T N E S S E T H ------------------- WHEREAS, the parties entered into that certain Investors' Agreement, dated as of January 21, 1998, by and among the Company, the THL Entities, the DLJ Entities, Chase Equity, the Merrill Lynch Entities and the Management Shareholders, as subsequently amended (the "Investors' Agreement"); WHEREAS, the THL Entities propose to make a pro rata distribution to their partners (the "Proposed Distribution") of __________ of the shares of Common Stock of the Company held by the THL Entities (the "Subject Shares") so that such partners will be free to sell the Subject Shares, subject to compliance with Rule 144 under the Securities Act of 1933 (the "Securities Act"); WHEREAS, the THL Entities have verbally informed the other Shareholders of their intent and have offered the other Shareholders, and certain other Shareholders intend to exercise, the opportunity to similarly distribute or sell, in compliance with Rule 144 under the Securities Act, a proportionate number of shares of Common Stock of the Company held by such other Shareholders calculated in accordance with the Investors' Agreement; and WHEREAS, in order to facilitate the Proposed Distribution of the Subject Shares, the THL Entities have requested that the Shareholders waive application of the provisions of the Investors' Agreement to the Proposed Distribution; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Definitions. Capitalized terms used herein without definition shall have the meanings set forth in the Investors' Agreement. 2. Waiver. The Company and the Shareholders, as parties to the Investors' Agreement, for purposes of the Proposed Distribution and any related sale or distribution by the DLJ Entities, Chase Equity, the Merrill Lynch Entities and the Management Shareholders of the number of shares of Common Stock of the Company set forth opposite their names on Schedule 1 hereto (the "Other Shares"), hereby waive application of the provisions of the Investors' Agreement as follows: a. The Shareholders hereby acknowledge verbal notice of the Proposed Distribution and the sufficiency thereof, and waive any and all rights to receive further notice, written or otherwise, of such distribution pursuant to Section 4.1 of the Investors' Agreement or otherwise. b. The Company and the Shareholders hereby acknowledge and agree that third parties (including any THL Designated Transferees or Permitted Transferees) receiving the Subject Shares and the Other Shares shall not be required to agree to be bound by the terms of the Investors' Agreement and shall not be so bound. c. The Company and the Shareholders hereby waive application of any other provisions of the Investors' Agreement that would impose further requirements or otherwise bar (i) the Proposed Distribution by the THL Entities or (ii) the sales or distributions of the Other Shares by the Shareholders (other than the THL Entities) and by their Permitted Transferees. 3. Miscellaneous. (a) This agreement is limited as specified and shall not constitute a modification or waiver of any other provisions of the Investors' Agreement and shall relate solely to the Proposed Distribution and any sales or distributions of the Other Shares by the Shareholders (other than the THL Entities) and by their Permitted Transferees. (b) This agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts shall be an original, but all of which shall constitute one and the same instrument. (c) This agreement shall be construed and enforced in accordance with, and the rights of the parties hereto shall be governed by, the laws of the State of Delaware. (d) This agreement shall become effective against any party upon the execution of this agreement by such party. [Remainder of Page Intentionally Left Blank] 2 IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. COMPANY: FISHER SCIENTIFIC INTERNATIONAL INC. By: --------------------------------- Name: Title: 3 HOLDERS: IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. THL Entities: THOMAS H. LEE EQUITY FUND III, L.P. By: THL Equity Advisors III Limited Partnership, as general partner By: THL Equity Trust III, as general partner By: --------------------------------- Name: Title: THOMAS H. LEE FOREIGN FUND III, L.P. By: THL Equity Advisors III Limited Partnership, as general partner By: THL Equity Trust III, as general partner By: --------------------------------- Name: Title: THL FSI EQUITY INVESTORS, L.P. By: THL Equity Advisors III Limited Partnership, as general partner By: THL Equity Trust III, as general partner By: --------------------------------- Name: Title: THOMAS H. LEE INVESTORS LIMITED PARTNERSHIP (f/k/a THL-CCI Limited Partnership) By: THL Investment Management Corp., as general partner By: --------------------------------- Name: Thomas H. Lee Title: Chairman and Chief Executive Officer IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. DLJ Entities: DLJMB FUNDING II, INC. By: --------------------------------- Name: Title: UK INVESTMENT PLAN 1997 PARTNERS By: Donaldson, Lufkin & Jenrette, Inc., as general partner By: --------------------------------- Name: Daniel Dross Title: Attorney-in-Fact DLJ MERCHANT BANKING PARTNERS II, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: --------------------------------- Name: Title: DLJ MERCHANT BANKING PARTNERS II-A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: --------------------------------- Name: Title: DLJ MILLENIUM PARTNERS, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: --------------------------------- Name: Title: DLJ MILLENIUM PARTNERS-A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: --------------------------------- Name: Title: DLJ OFFSHORE PARTNERS II, CV By: DLJ Merchant Banking II, Inc., as advisory general partner By: --------------------------------- Name: Title: DLJ DIVERSIFIED PARTNERS, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: --------------------------------- Name: Title: DLJ DIVERSIFIED PARTNERS-A, L.P. By: DLJ Diversified Partners, Inc., as managing general partner By: --------------------------------- Name: Title: DLJ EAB PARTNERS, L.P. By: DLJ LBO Plans Management Corporation, as managing general partner By: --------------------------------- Name: Title: DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: --------------------------------- Name: Title: DLJ FIRST ESC, L.P. By: DLJ LBO Plans Management Corporation, as general partner By: --------------------------------- Name: Title: IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. J.P. MORGAN PARTNERS (BHCA), L.P. (f/k/a Chase Equity Associates, L.P.) By: JPMP Master Fund Manager, L.P., its General Partner By: JPMP Capital Corp., its General Partner By: --------------------------------- Name: Title: IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. Merrill Lynch Entities: ML IBK POSITIONS, INC. By: --------------------------------- Name: Title: KECALP INC. By: --------------------------------- Name: Title: MERRILL LYNCH KECALP L.P. 1997 By: KECALP Inc., as general partner By: --------------------------------- Name: Title: IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: David V. Harkins IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: The 1995 Harkins Gift Trust IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Thomas R. Shepherd Money Purchase Pension Plan IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Scott A. Schoen IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: C. Hunter Boll IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Scott M. Sperling IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Sperling Family Limited Partnership IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Anthony J. DiNovi IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Thomas M. Hagerty IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Warren C. Smith, Jr. IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Seth W. Lawry IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Joseph J. Incandela IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Kent R. Weldon IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Terrence M. Mullen IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Todd M. Abbrecht IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Wendy L. Masler IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Andrew D. Flaster IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: First Trust Corporation as Trustees for Kristina Weinberg-Watts IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Charles Robins IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: James Westra IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. By: --------------------------------- Name: Charles A. Brizius