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The financial statements included herein have been prepared by Fisher, without audit, pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to such rules and regulations. The Company believes that the disclosures included herein are adequate to make the information presented not misleading when read in conjunction with the financial statements, footnotes and related disclosures included in the Company’s Current Report on Form 8-K filed on July 12, 2005, reflecting the sale of Atos Medical Holding AB as a discontinued operation (see Note 8).

The Company has elected to follow Accounting Principles Board (APB) Opinion No. 25 “Accounting for Stock Issued to Employees”, (“APB No. 25”) in accounting for its stock-based compensation plans rather than the alternative fair value accounting method provided for under Statement of Financial Accounting Standards (“SFAS”) No. 123, “Accounting for Stock-Based Compensation” (“SFAS 123”), as amended by SFAS No. 148, “Accounting for Stock-Based Compensation — Transition and Disclosure” (“SFAS 148”). Per APB No. 25, compensation expense is recognized for stock options to the extent the fair value of the Company’s common stock exceeds the stock option exercise price at the measurement date. The Company has issued stock options with exercise prices at the fair value of the common stock at the date of grant; therefore, no compensation expense has been recorded. Beginning with the first quarter of 2006, the Company will be required to record compensation cost for its employee stock options as result of a revision to SFAS 123 issued in December 2004, as more fully explained in Note 13.

The Company has elected the disclosure only alternative under SFAS 123, which requires the disclosure of the effect on net income and net income per share as if the Company had accounted for its employee stock options under the fair value recognition method under SFAS 148. Had compensation cost for employee stock options granted under the Company’s employee stock option plan been determined based on fair value at the grant date consistent with SFAS 123, the Company’s net income and net income per share would have been reduced to the pro forma amounts indicated in the table below (in millions, except for the net income per share information):

On August 2, 2004, the Company completed an approximately $3.9 billion combination with Apogent Technologies Inc. (“Apogent”) in a tax-free, stock for stock merger, which included the assumption of debt with a fair value of approximately $1.1 billion. Apogent focuses on the design, manufacture, and sale of laboratory and life-science products used in healthcare diagnostics and scientific research. Upon completion of the merger, Apogent became a wholly-owned subsidiary of Fisher. The results of Apogent have been included in the scientific products and services segment and the healthcare products and services segment from the date of acquisition. The allocation of purchase price is substantially complete, with the remaining allocation to be completed primarily related to finalizing the value of liabilities assumed in connection with certain leased facilities as well as the final resolution of tax matters, including tax benefits to be realized from the future exercises of options issued in the merger. The final purchase price allocation will be completed in the third quarter of 2005.

The following unaudited pro forma financial information presents the results of operations as if the Apogent merger had occurred at the beginning of 2004. The pro forma financial information includes amortization of the acquired intangibles on a straight-line basis and a charge for the step-up of inventory of $20.9 million and $70.3 million for the three and six month periods ended June 30, 2004, respectively. The unaudited pro forma financial information is provided for informational purposes only and does not purport to be indicative of the Company’s results of operations that would actually have been achieved had the acquisition been completed for the periods presented, or that may be achieved in the future (in millions, except per share data):

On April 1, 2004, the Company acquired Dharmacon, Inc. (“Dharmacon”) for approximately $80 million of cash. Dharmacon focuses on RNA technologies, including RNA interference and small interfering RNA, which are tools for life-science research that increase the efficiency of the drug discovery process. In connection with this transaction, exercisable options to purchase Dharmacon common stock were converted at fair market value into the right to receive 57,713 shares of Fisher common stock, issued from treasury stock. The results of Dharmacon have been included in the scientific products and services segment from the date of acquisition.

On March 1, 2004, the Company acquired Oxoid Group Holdings Limited (“Oxoid”). Oxoid is a United Kingdom-based manufacturer of microbiological culture media and other diagnostic products that test for bacterial contamination. The cash purchase price of approximately $330 million was funded through the sale of an initial $300 million principal amount of 3.25% convertible senior subordinated notes and borrowings under the Company’s accounts receivable securitization facility and revolving credit facilities. The results of Oxoid have been included in the scientific products and services segment from the date of acquisition.

On April 14, 2005, the Company commenced a cash tender offer for all $304 million aggregate principal amount outstanding of its 8¹/8% Senior Subordinated Notes due 2012. The tender offer had a final expiration date of May 11, 2005. On April 29, 2005, the Company accepted for purchase approximately $289.7 million of the 8¹/8% Senior Subordinated Notes due 2012 which had been tendered as of April 27, 2005, and on May 12, 2005, the Company accepted for purchase approximately an additional $0.4 million of the Notes which had been tendered as of May 11, 2005. The Company used available cash and proceeds from the sales of accounts receivable under its receivables securitization facility to fund the cash tender offer. A concurrent consent solicitation amended the indenture governing any notes that remained outstanding to eliminate restrictive covenants in that indenture. As part of the tender offer, the Company incurred a total charge of $32.0 million, consisting of a premium paid for the debt redemption, the write off of a pro rata amount of unamortized premiums and unamortized deferred financing fees, and tender related expenses of approximately $1.1 million. The total charge is reflected as other expense, net in the accompanying consolidated statement of operations.

In May 2005, the Company terminated its right to deliver shares of its common stock upon conversion of notes by holders of the 3.25% Convertible Senior Subordinated Notes due 2024, the 2.50% Convertible Senior Notes due 2023 and the Floating Rate Convertible Senior Debentures due 2033, in each case, in respect of the principal amount of the notes converted. As a result, the Company will be required to deliver cash to holders upon conversion, except to the extent that the conversion obligation exceeds the principal amount of notes converted, in which case, the Company will have the option to satisfy the excess in cash and/or shares of common stock. On the same date, the Company also terminated its right to deliver shares of its common stock to satisfy put obligations in respect of the 3.25% Convertible Senior Subordinated Notes due 2024 and the 2.50% Convertible Senior Notes due 2023. As a result, the Company will be required to deliver cash to holders of such notes upon exercise of their put right. In the event the Company were required to cash settle these debt issuances, it would utilize excess cash balances together with available funds under the Term Facility, revolving credit facility and/or the accounts receivable securitization facility.

On March 7, 2005, the Company entered into a definitive agreement to sell all of the capital stock of Atos Medical Holding AB (“Atos”), a manufacturer of ear, nose and throat medical devices, for approximately $110.0 million in cash. The sale was completed on April 5, 2005. Atos was acquired in September 2003 in connection with the Company’s acquisition of Perbio Science AB and the results of Atos were previously included in our healthcare products and services segment. The Company realized a gain on the sale of Atos of approximately $16.7 million, net of taxes of $8.4 million.

Under Emerging Issues Task Force (“EITF”) No. 04-08 “The Effect of Contingently Convertible Instruments on Diluted Earnings Per Share,” which is effective for periods ending after December 15, 2004, and EITF No. 90-19 “Convertible Bonds with Issuer Option to Settle for Cash upon Conversion,” because of the Company’s obligation to settle the par value of the convertible debentures in cash, the Company is not required to include any shares underlying the convertible debentures in its diluted weighted average shares outstanding until the average stock price per share for the period exceeds the $47.46, $59.09 and the $80.40 conversion price for the 2.50% convertible senior notes, the floating rate convertible senior debentures and the 3.25% convertible senior subordinated notes, respectively, and only to the extent of the additional shares the Company may be required to issue in the event the Company’s conversion obligation exceeds the principal amount of the notes or debentures converted. At such time, only the number of shares that would be issuable (under the treasury stock method of accounting for share dilution) are included, which is based upon the amount by which the average stock price exceeds the conversion price.

The table below discloses the impact of increases in the Company’s stock price on the amount of shares to be included in the earnings per share calculation. The trigger price is the Fisher stock price at which the securities become convertible. The table assumes normal conversion for the 2.50% convertible senior notes, the floating rate convertible senior debentures and the 3.25% convertible senior subordinated notes in which the principal amount is paid in cash, and the excess up to the conversion value is paid in shares of the Company’s stock as follows (share amounts in millions):

The Company recorded expenses of $3.0 million and $20.1 million for the three and six month periods ended June 30, 2005, respectively, for the amortization of the step-up of inventory to the acquired fair value related to the Company’s acquisition of Apogent. For the three and six month periods ended June 30, 2004, the Company recorded expenses of $5.7 million and $15.9 million, respectively, for the amortization of the step-up of inventory to the acquired fair value related to the Company’s acquisitions of Perbio, Dharmacon, and Oxoid. For the three and six month periods ended June 30, 2005, the Company also recorded restructuring costs of $5.0 million and $13.3 million, and acquisition and integration costs of $8.1 million and $19.5 million, respectively.

In November 2004, the FASB issued SFAS No. 151, “Inventory Costs, an amendment of ARB No. 43, Chapter 4” (“SFAS No. 151”). SFAS No. 151 amends Accounting Research Bulletin No. 43, Chapter 4, to clarify that abnormal amounts of idle facility expense, freight, handling costs and wasted materials (spoilage) should be recognized as current-period charges. In addition, SFAS No. 151 requires that allocation of fixed production overhead to inventory be based on the normal capacity of the production facilities. SFAS No. 151 is effective for inventory costs incurred during fiscal years beginning after June 15, 2005. The Company is currently assessing the impact that SFAS No. 151 will have on the results of operations and financial position.

In December 2004, the FASB issued SFAS No. 123 (revised 2004), “Share-Based Payment” (“SFAS 123R”). SFAS 123R supercedes Accounting Principles Board (“APB”) Opinion No. 25, “Accounting for Stock Issued to Employees,” and amends SFAS No. 95, “Statement of Cash Flows.” This statement addressed the accounting for share-based payments to employees, including grants of employee stock options. Under the new standard, companies will no longer be able to account for share-based compensation transactions using the intrinsic method in accordance with APB Opinion No. 25. Instead, companies will be required to account for such transactions using a fair-value method and recognize the related expense associated with share-based payments in the statement of operations. SFAS 123R is effective for the Company as of January 1, 2006. The Company currently accounts for share-based payments to employees under APB Opinion No. 25’s intrinsic value method. As such, the Company generally does not recognize compensation expense for options granted to employees. The Company will adopt the provisions of SFAS 123R under the modified prospective method, in which compensation cost for all share-based payments granted or modified after the effective date is recognized based upon the requirements of SFAS 123R and compensation cost for all awards granted to employees prior to the effective date that are unvested as of the effective date of SFAS 123R is recognized based on SFAS 123. Tax benefits will be recognized related to the cost for share-based payments to the extent the equity instrument would ordinarily result in a future tax deduction under existing law. Tax expense will be recognized to write off excess deferred tax assets when the tax deduction upon settlement of a vested option is less than the expense recorded in the statement of operations (to the extent not offset by prior tax credits for settlements where the tax deduction was greater than the fair value cost). The Company is currently assessing the impact that SFAS 123R will have on the results of operations and financial position. However, when adopted, the impact on prior periods will approximate the impact of SFAS 123 as described in disclosure of pro forma net income and net income per common share in Note 3. SFAS 123R also requires the benefits of tax deductions in excess of recognized compensation cost be reported as a financial cash flow rather than as operating cash flow as is currently required. The Company cannot estimate what the future tax benefits will be as the amounts depend on, among other factors, future employee stock option exercises. However, the amount of operating cash flows recognized in the six-month periods ending June 30, 2005 and 2004 for such excess tax deductions was $18.1 million and $15.4 million, respectively.

In December 2004, the FASB issued FASB Staff Position No. SFAS 109-1, “Application of FASB Statement No. 109, Accounting for Income Taxes, to the Tax Deduction on Qualified Production Activities Provided by the American Jobs Creation Act of 2004” (“AJCA”)(“FSP 109-1”). The AJCA introduces a special 9% tax deduction on qualified production activities. FSP 109-1 clarifies that this tax deduction should be accounted for as a special tax deduction in accordance with Statement 109. The statement was effective immediately upon issuance. The Company is assessing the impact of FSP 109-1 on the results of operations and financial position and expects to complete its assessment by December 31, 2005.

In December 2004, the FASB issued Staff Position No. SFAS 109-2, “Accounting and Disclosure Guidance for the Foreign Earnings Repatriation Provision within the American Jobs Creation Act of 2004” (“FSP 109-2”). The AJCA introduces a special one-time dividends-received deduction on the repatriation of certain foreign earnings to a U.S. taxpayer, provided certain criteria are met. FSP 109-2 provides accounting and disclosure guidance for the repatriation provision, and was effective immediately upon issuance. The Company is assessing the impact of FSP 109-2 on the results of operations and financial position and expects to complete its assessment by December 31, 2005. The Company is considering repatriation options up to the maximum allowed by law of $500 million.

In March 2005, the FASB issued FASB Interpretation No. 47 (“FIN 47”) “Accounting for Conditional Asset Retirement Obligations,” which clarifies that a liability (at fair value) must be recognized for asset retirement obligations when it has been incurred if the amount can be reasonably estimated, even if settlement of the liability is conditional on a future event. FIN 47 is effective as of December 31, 2005. The Company is reviewing its asset retirement obligations to determine the need to record a liability to cover any conditional obligation. The Company does not anticipate that any identified liabilities will have a material impact on the cash flows, ongoing results of operations or financial position, and is assessing the potential impact to the results of operations at adoption.

This Form 10-Q contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All statements other than statements of historical facts included in this Form 10-Q may constitute forward-looking statements. We have based these forward-looking statements on our current expectations and projections about future events. Although we believe that our assumptions made in connection with the forward-looking statements are reasonable, there can be no assurances that the assumptions and expectations will prove to be correct. Certain factors that might cause such a difference include those discussed in the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Cautionary Factors Regarding Forward-Looking Statements” contained in our Current Report on Form 8-K filed on July 12, 2005. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in the report might not occur.

We achieved record results in the second quarter of 2005, with sales of $1.4 billion, operating income of $167.6 million, doubling last year’s operating income, and a 25% increase in diluted earnings per share to 80 cents. Our financial results reflect contributions from the Apogent acquisition, the benefit of integration synergies, and improved profitability in our scientific products and services, and healthcare products and services segments. Our overall strong performance was partially offset by continued softness in European markets and continued delays in the ordering of safety-related products for domestic preparedness and bioterrorism initiatives.

Scientific Products and Services. Net sales of $1,030.4 million and $2,014.2 million for the three and six month periods ended June 30, 2005, respectively, reflect the impact of acquisitions, including the Apogent acquisition completed in August 2004, accounting for approximately 23.6% and 26.3% growth, respectively. Organic sales growth of approximately 5.1% and 3.4%, respectively, was primarily the result of strong demand for our life science products from biotech, solid growth from our industrial and academic customers, and continued demand for our pharmaceutical service offerings offset in part by continued weakness in European markets and customer delays in the ordering of safety-related products for domestic preparedness and bioterrorism applications. For the remainder of 2005, we expect that the organic growth rate will continue to be affected by delays associated with safety-related product orders.

Healthcare Products and Services. Net sales of $326.2 million and $662.9 million for the three and six-month periods ended June 30, 2005, respectively, reflect the impact of the Apogent acquisition, which accounted for approximately 44.6% and 43.4% growth, respectively. Organic sales growth of approximately 3.7% and 4.5%, respectively, was due primarily to strong demand for our immunodiagnostic products, partially offset by a continued focus on increasing operating margins at the expense of sales growth. For the remainder of 2005, we expect the organic growth rate will continue to be favorably impacted by the demand for our immunodiagnostic products.

Consolidated. Adjusted operating income of $167.6 million and $303.4 million for the three and six-month periods ended June 30, 2005, respectively, reflects an increase of 99.5% and 101.5% for the comparable periods in 2004. Adjusted operating income as a percentage of sales increased to 12.0% and 11.1% for the three and six-month periods ended June 30, 2005, respectively, from 8.0% and 7.3% for the comparable periods in 2004. Our adjusted operating income was favorably impacted by contributions from the Apogent and Oxoid acquisitions, the benefit of integration synergies, and improved profitability in organic margins for our scientific products and services segment and healthcare products and services segment.

Scientific Products and Services. Operating income was $142.2 million and $271.6 million for the three and six month periods ended June 30, 2005, respectively, compared to $76.2 million and $142.8 million for the comparable periods in 2004. Operating margins were 13.8% and 13.5% for the three and six month periods ended June 30, 2005, respectively, compared to 9.6% and 9.3% for the comparable periods in 2004. The improvement in operating margins was primarily due to the effect of the Oxoid and Apogent transactions during 2004. These acquisitions contributed to an increase in gross margin as a percentage of sales with a partially offsetting increase in selling, general and administrative expenses as a percentage of sales. Organic operating margins also showed improvement during the three and six month periods ended June 30, 2005 primarily due to integration synergies and fixed cost leverage.

Healthcare Products and Services. Operating income was $41.6 million and $84.6 million for the three and six month periods ended June 30, 2005, respectively, compared to $13.7 million and $24.1 million for the comparable periods in 2004. Operating margins were 12.8% for both the three and six month periods ended June 30, 2005, compared to 6.2% and 5.4% for the comparable periods in 2004. The improvement in operating margins was primarily due to the impact of the Apogent acquisition during 2004. Apogent contributed to an increase in gross margin as a percentage of sales with a partially offsetting increase in selling, general and administrative expenses as a percentage of sales. Organic operating margins improved significantly during the three and six month periods ended June 30, 2005, primarily as a result of integration synergies and our ongoing focus on margin improvement initiatives at the expense of revenue growth, as well as fixed cost leverage.

On March 7, 2005, the Company entered into a definitive agreement to sell all of the capital stock of Atos Medical Holding AB (Atos), a manufacturer of ear, nose and throat medical devices, for approximately $110.0 million in cash. The sale was completed on April 5, 2005. Atos was acquired in September 2003 in connection with the Company’s acquisition of Perbio Science AB and the results of Atos were previously included in our healthcare products and services segment. The Company realized a gain on the sale of Atos of approximately $16.7 million, net of taxes of $8.4 million. See Note 8 of our Notes to the Consolidated Financial Statements for a complete description of this transaction.

Interest expense for the three and six month periods ended June 30, 2005 was $27.6 million and $58.2 million, respectively, an increase of $4.6 million and $13.2 million, respectively, from the comparable periods in 2004. The increase in interest expense is attributable to an overall increase in our total debt balance primarily associated with the assumption and refinancing of debt upon the merger with Apogent and the issuance of $330 million of 3.25% convertible debt in March 2004 to fund the acquisition of Oxoid, partially offset by the redemption of 8¹/8% Senior Subordinated Notes due 2012.

Cash generated from operating activities was $218.1 million for the six month period ended June 30, 2005 as compared to $136.9 million for the comparable period in 2004. The increase in cash from operations was primarily from an increase in net income as adjusted for items such as depreciation and amortization, redemption premiums and deferred financing fees, deferred income taxes and gain on sale of business and investments. Accounts receivable used $74.9 million of cash for the six month period ended June 30, 2005 compared to a use of $22.2 million for the comparable period in 2004. This change in cash used by accounts receivable is primarily due to the timing of collections in the six month period ended June 30, 2005. The decrease in inventories was primarily the result of the amortization through cost of goods sold of the fair value step-up of inventory from acquired companies of $20.1 million and $15.9 million for the six month periods ended June 30, 2005 and 2004, respectively. Accrued and other liabilities used cash of $24.9 million for the six month period ended June 30, 2005 as compared to a use of cash of $5.5 million for the comparable period in 2004. The increased use of cash was due in part to the timing of interest payments associated with additional debt incurred during 2004.

Net cash provided by investing activities was $38.9 million for the six month period ended June 30, 2005 compared to cash used in investing activities of $451.6 million for the comparable period in 2004. Cash provided by investing activities for the six month period ended June 30, 2005 was primarily attributable to the proceeds from the sale of Atos, offset by capital expenditures related to investments in the Company’s bioscience business, facility expansion related to the integration of manufacturing facilities and the transfer of production to lower-cost facilities. During the six month period ended June 30, 2004, cash used in investing activities included the acquisition of Oxoid.

Net cash used in financing activities was $254.1 million for the six month period ended June 30, 2005 compared to cash provided by financing activities of $284.7 million for the comparable period in 2004. During the six month period ended June 30, 2005, cash used was primarily the result of the cash tender offer and related expenses of the 8¹/8% Senior Subordinated Notes due 2012 in April 2005, partially offset by the proceeds from the exercise of stock options. During the six month period ended June 30, 2004, we issued $330 million of convertible notes to fund the acquisition of Oxoid.

On March 15, 2005, the Board of Directors authorized a share repurchase program of up to $300 million of the Company’s common stock. The authorization for share repurchases extends through March 15, 2007. The program authorizes management, at its discretion, to repurchase shares from time to time on the open market or in privately negotiated transactions subject to market conditions and other factors. We believe that the share repurchase program provides additional capital structure flexibility and that we have adequate financial resources to fund any share repurchases given current cash levels and future expectations for cash flow. As of June 30, 2005, no shares have been repurchased under this program.

In May 2005, the Company terminated its right to deliver shares of its common stock upon conversion of notes by holders of the 3.25% Convertible Senior Subordinated Notes due 2024, the 2.50% Convertible Senior Notes due 2023 and the Floating Rate Convertible Senior Debentures due 2033, in each case, in respect of the principal amount of the notes converted. As a result, the Company will be required to deliver cash to holders upon conversion, except to the extent that the conversion obligation exceeds the principal amount of notes converted, in which case, the Company will have the option to satisfy the excess in cash and/or shares of common stock. On the same date, the Company also terminated its right to deliver shares of its common stock to satisfy put obligations in respect of the 3.25% Convertible Senior Subordinated Notes due 2024 and the 2.50% Convertible Senior Notes due 2023. As a result, the Company will be required to deliver cash to holders of such notes upon exercise of their put right. In the event we are required to cash settle these debt issuances, we would utilize excess cash balances together with available funds under the Term Facility, revolving credit facility and/or the accounts receivable securitization facility.

We expect to satisfy our short-term funding requirements from operating cash flow, together with cash and cash equivalents on hand or available borrowings through our Credit Facility. A change in demand for the Company’s goods and services, while unlikely, would reduce operating cash flow available to fund our operations. If such a decrease in demand were significant and free operating cash flow were reduced significantly, we could utilize the Receivables Securitization facility (see “Item 8 — Financial Statements and Supplementary Data — Note 4 Accounts Receivable” in the Company’s Current Report on Form 8-K filed on July 12, 2005) to the extent that we have qualified receivables to sell through the facility. We believe that these funding sources are sufficient to meet our ongoing operating, capital expenditure and debt service requirements for at least the next twelve months. Cash requirements for periods beyond the next twelve months depend on our profitability, our ability to manage working capital requirements and our growth rate. We may seek to raise additional funds from public or private debt or equity financings, or from other sources for general corporate purposes or for the acquisition of businesses or products. There can be no assurance that additional funds will be available at all or that, if available, will be obtained at terms favorable to us. Additional financing could also be dilutive.

The discussion and analysis of our financial condition and results of operations is based on our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. On an ongoing basis, management evaluates its estimates and judgments, including, among others, those related to revenue recognition, environmental liabilities, purchase accounting, goodwill impairment, pension plans, convertible debt impact on earnings per share, income taxes, and stock-based compensation. Those estimates and assumptions are based on our historical experience, our observance of trends in the industry, and various other factors that are believed to be reasonable under the circumstances and form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions. Refer to “Item 7 — Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the Company’s Current Report on Form 8-K filed on July 12, 2005 for a discussion of the Company’s critical accounting policies.

In December 2004, the FASB issued SFAS No. 123 (revised 2004), “Share-Based Payment” (“SFAS 123R”). SFAS 123R supercedes APB Opinion No. 25, “Accounting for Stock Issued to Employees,” and amends SFAS No. 95, “Statement of Cash Flows.” This statement addressed the accounting for share-based payments to employees, including grants of employee stock options. Under the new standard, companies will no longer be able to account for share-based compensation transactions using the intrinsic method in accordance with APB Opinion No. 25. Instead, companies will be required to account for such transactions

using a fair-value method and recognize the related expense associated with share-based payments in the statement of operations. SFAS 123R is effective for the Company as of January 1, 2006. The Company currently accounts for share-based payments to employees under APB Opinion No. 25’s intrinsic value method. As such, the Company generally does not recognize compensation expense for options granted to employees. The Company will adopt the provisions of SFAS 123R under the modified prospective method, in which compensation cost for all share-based payments granted or modified after the effective date is recognized based upon the requirements of SFAS 123R and compensation cost for all awards granted to employees prior to the effective date that are unvested as of the effective date of SFAS 123R is recognized based on SFAS 123. Tax benefits will be recognized related to the cost for share-based payments to the extent the equity instrument would ordinarily result in a future tax deduction under existing law. Tax expense will be recognized to write off excess deferred tax assets when the tax deduction upon settlement of a vested option is less than the expense recorded in the statement of operations (to the extent not offset by prior tax credits for settlements where the tax deduction was greater than the fair value cost). The Company is currently assessing the impact that SFAS 123R will have on the results of operations and financial position. However, when adopted, the impact on prior periods will approximate the impact of SFAS 123 as described in disclosure of pro forma net income and net income per common share in Note 3. SFAS 123R also requires the benefits of tax deductions in excess of recognized compensation cost be reported as a financial cash flow rather than as operating cash flow as is currently required. The Company cannot estimate what the future tax benefits will be as the amounts depend on, among other factors, future employee stock option exercises. However, the amount of operating cash flows recognized in the six-month periods ending June 30, 2005 and 2004 for such excess tax deductions was $18.1 million and $15.4 million, respectively.

In December 2004, the FASB issued FASB Staff Position No. SFAS 109-1, “Application of FASB Statement No. 109, Accounting for Income Taxes, to the Tax Deduction on Qualified Production Activities Provided by the American Jobs Creation Act of 2004” (“AJCA”)(“FSP 109-1”). The AJCA introduces a special 9% tax deduction on qualified production activities. FSP 109-1 clarifies that this tax deduction should be accounted for as a special tax deduction in accordance with Statement 109. The statement was effective immediately upon issuance. The Company is currently assessing the impact of FSP 109-1 on the results of operations and financial position and expects to complete its assessment by December 31, 2005.

In December 2004, the FASB issued Staff Position No. SFAS 109-2, “Accounting and Disclosure Guidance for the Foreign Earnings Repatriation Provision within the American Jobs Creation Act of 2004” (“FSP 109-2”). The American Jobs Creation Act of 2004 introduces a special one-time dividends-received deduction on the repatriation of certain foreign earnings to a U.S. taxpayer, provided certain criteria are met. FSP 109-2 provides accounting and disclosure guidance for the repatriation provision, and was effective immediately upon issuance. The Company is currently assessing the impact of FSP 109-2 on the results of operations and financial position and expects to complete its assessment by December 31, 2005. The Company is considering repatriation options up to the maximum allowed by law of $500 million.

In May 2005, the FASB issued SFAS No. 154, “Accounting Changes and Error Corrections.” SFAS No. 154 amends Accounting Principles Board (APB) Opinion No. 20, concerning the accounting for changes in accounting principles, requiring retrospective application to prior periods’ financial statements of changes in an accounting principle, unless it is impracticable to do so. The effective date of SFAS No. 154 is for accounting changes and corrections of errors made in fiscal years beginning after December 15, 2005. The Company will adopt SFAS No. 154 in fiscal 2006 and does not expect it to have a significant impact on the results of operations and financial position.

In March 2005, the FASB issued FASB Interpretation No. 47 (“FIN No. 47”) “Accounting for Conditional Asset Retirement Obligation”, which clarifies that a liability (at fair value) must be recognized for asset retirement obligations when it has been incurred if the amount can be reasonably estimated, even if settlement of the liability is conditional on a future event. FIN No. 47 is effective as of December 31, 2005. The Company is reviewing its asset retirement obligations to determine the need to record a liability to cover any conditional obligation. The Company does not anticipate that any identified liabilities will have a material impact on the cash flows, ongoing results of operations or financial position, and is assessing the potential impact to the results of operations at adoption.

In the normal course of business, we use derivative financial instruments, including foreign currency forward exchange contracts and options, commodity swaps and options and interest rate swaps to manage market risks. The objective in managing our exposure to changes in foreign currency exchange rates is to reduce volatility on earnings and cash flow associated with these changes. The objective in managing our exposure to changes in commodities prices is to reduce our volatility on earnings and cash flow associated with these changes. The objective in managing our exposure to changes in interest rates is to limit the impact of these changes on earnings and cash flow and to lower our overall borrowing costs. We do not hold derivatives for trading purposes.

We measure our market risk related to our holdings of financial instruments based on changes in foreign currency rates, commodities prices and interest rates utilizing a sensitivity analysis. The sensitivity analysis measures the potential loss in fair values, cash flows and earnings based on a hypothetical 10% change in these market rates. We used quarter-end market rates on our financial instruments to perform the sensitivity analysis. We do not include items such as lease contracts, insurance contracts, and obligations for pension and other post-retirement benefits in the analysis.

We operate manufacturing and logistical facilities as well as offices around the world and utilize fixed and floating rate debt to finance global operations. As a result, we are subject to business risks inherent in non-U.S. activities, including political and economic uncertainty, import and export limitations, and market risk related to changes in interest rates and foreign currency exchange rates. We believe the political and economic risks related to foreign operations are mitigated due to the stability of the countries in which our largest foreign operations are located.

Our primary interest rate exposures result from floating rate borrowings and investment activities utilized to maintain liquidity and fund business operations. Our interest rate risk is mitigated through the use of interest rate swaps. The potential loss in fair values is based on an immediate change in the net present values of our interest rate-sensitive exposures resulting from a 10% change in interest rates. The potential loss in cash flows and earnings is based on the change in the net interest income/expense over a three and six month periods due to an immediate 10% change in rates. A hypothetical 10% change in interest rates would not have had a material impact on our fair values, cash flows or earnings for the three and six month periods ended June 30, 2005 or 2004.

Our primary currency rate exposures relate to our intercompany debt, trade payables and receivables, foreign cash and foreign currency forward and option contracts. The potential loss in fair values is based on an immediate change in the U.S. dollar equivalent balances of our currency exposures due to a 10% shift in exchange rates. The potential loss in cash flows and earnings is based on the change in cash flow and earnings over a three and six month periods resulting from an immediate 10% change in currency exchange rates. A hypothetical 10% change in the currency exchange rates would not have had a material impact on our fair values, cash flows or earnings for the three and six month periods ended June 30, 2005 or 2004.

A hypothetical 10% change in our primary commodities would not have had a material impact on our fair values for the three and six month periods ended June 30, 2005 or 2004 or on our earnings and cash flows for the three and six months ended June 30, 2004 or the three months ended June 30, 2005. However, due to an increased raw material exposure from the merger with Apogent, a 10% change in market rates of petroleum-based resins or steel could have had a material impact on our earnings and cash flows for the six months ended June 30, 2005 at least in the short term due to contractual agreements with some customers that would not allow us to pass along such costs.

As of the end of the period covered by this quarterly report on Form 10-Q, an evaluation of the effectiveness of the Company’s disclosure controls and procedures (pursuant to Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended) was carried out under the supervision of the Company’s Chief Executive Officer and Chief Financial Officer, with the participation of the Company’s management. Based on that evaluation, the Chief Executive Officer and the Chief Financial Officer concluded that, as of the end of such period, the Company’s disclosure controls and procedures are effective in recording, processing, summarizing and reporting, on a timely basis, information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act and are effective in ensuring that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including the Company’s Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. There has been no change in the Company’s internal control over financial reporting that occurred during the fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

The Company convened its annual meeting on May 6, 2005 for the purpose of voting on (i) the election of five directors, four of whom would serve a three year term expiring in 2008 and one of whom would serve a two year term expiring in 2007, (ii) the adoption of the Fisher Scientific International Inc. 2005 Equity and Incentive Plan, and (iii) the ratification of the appointment of Deloitte & Touche LLP as the independent registered public accounting firm of the Company for the current fiscal year. Proxies for the meeting were solicited by the Company pursuant to Regulation 14A under the Securities Exchange Act of 1934. At the annual meeting, Rosanne F. Coppola, Bruce L. Koepfgen, Paul M. Meister and W. Clayton Stephens were elected as directors, each to serve a three-year term and Richard W. Vieser was elected as director, to serve a two year term, the Fisher Scientific International Inc. 2005 Equity and Incentive Plan was approved, and Deloitte & Touche LLP was ratified as the independent registered public accounting firm of the Company for the current fiscal year.

The following number of votes were cast with respect to the election of Ms. Coppola: 107,678,491 votes FOR and 2,012,824 votes WITHHELD. The following number of votes were cast with respect to the election of Mr. Koepfgen: 107,682,258 votes FOR and 2,009,057 votes WITHHELD. The following number of votes were cast with respect to the election of Mr. Meister: 104,522,695 votes FOR and 5,168,620 votes WITHHELD. The following number of votes were cast with respect to the election of Mr. Stephens: 103,723,956 votes FOR and 5,967,359 votes WITHHELD. The following number of votes were cast with respect to the election of Mr. Vieser: 107,648,825 votes FOR and 2,042,490 votes WITHHELD. In addition, the following number of votes were cast with respect to the approval of the Fisher Scientific International Inc. 2005 Equity and Incentive Plan: 68,084,166 votes FOR; 29,590,772 votes AGAINST; and 1,415,660 abstentions. Votes cast regarding the ratification of the appointment of Deloitte & Touche LLP as the independent registered public accounting firm of the Company for the current fiscal year were as follows: 104,947,312 votes FOR; 3,905,046 votes AGAINST; and 838,957 abstentions. In addition, the incumbent directors of the Company are: Paul M. Montrone, Michael D. Dingman, Frank H. Jellinek, Jr., Simon B. Rich, Charles A. Sanders, M.D., and Scott M. Sperling.

As of August 2, 2005, the Company entered into indemnification agreements with each of its directors pursuant to which the Company agrees to indemnify the director against: (a) expenses, judgments, and settlements paid in connection with third-party claims; and (b) expenses and settlements paid in connection with claims in the right of the Company, in each case provided that the director acted in good faith. In addition, the Company agrees to indemnify each director to the extent permitted by law against all expenses, judgments, and amounts paid in settlement unless the director’s conduct constituted a breach of his or her duty of loyalty to the stockholders. Subject to the director’s obligation to pay the Company in the event that he or she is not entitled to indemnification, the Company will pay the expenses of the director prior to a final determination as to whether the director is entitled to indemnification. The Form of Indemnification Agreement is attached to this Form 10-Q as Exhibit 10.01.

As of August 2, 2005, the Company entered into amendments to the existing employments agreements with each of Messrs. Montrone, Meister, Della Penta and Roellig to address the timing of certain payments in light of new developments in law and practice. These amendments cover certain unintended consequences which could occur based upon Sections 409A and 4999 of the Internal Revenue Code (the “Code”). The amendments provide for payment of severance in a lump sum and for a delayed distribution of deferred compensation upon termination of employment to the extent required by Section 409A. In addition, the amendments provide each executive with a payment for any taxes payable pursuant to Section 4999 of the Code provided that the amount of any payments subject to Section 4999 exceeds the sum of (x) $50,000 plus (y) 2.99 times the executive’s base amount (as defined in Section 280G(b)(3) of the Code). However, if the executive is not entitled to such a payment, then the executive will receive the greatest amount of payments that would not

As of August 2, 2005, the Company entered into an employment agreement with its existing vice president and chief financial officer, Mr. Kevin Clark, pursuant to which he is entitled to receive an initial annual base salary of $375,000 and to participate in all incentive and benefit plans applicable generally to other peer executives of the Company. His target annual bonus will be at least equal to 100% of his annual base salary. Upon a termination of employment by the Company without cause or by Mr. Clark for good reason, he will be entitled to receive severance equal to two times his then annual base salary and a pro rata annual bonus for the year of termination. In the event that Mr. Clark’s employment is terminated by the Company without cause or by him for good reason, in each case within two years following a change in control of the Company (as defined in the Company’s 2005 Equity and Incentive Plan), then in lieu of the payments described above, he will generally be entitled to receive the following, based upon his compensation and benefits during the year of termination: (1) severance equal to two and a half times the sum of his base salary plus the cash value of his target annual incentive compensation, (2) any accrued compensation, provided that any accrued but unpaid annual incentive payments for the prior year will be determined based upon actual Company results and not reduced for individual performance, (3) a pro rata annual bonus, (4) an amount equal to the total value of two and a half years of Company matching contributions under the Company’s qualified and non-qualified defined contribution plans as well as full vesting of any account balances and (5) the full target long term incentive plan award to which he is then entitled based upon the results for the prior year as well as payment of the full target long term incentive plan award to which he is entitled during the year of termination. Mr. Clark is also entitled to continuation of his benefits for a period of two and a half years following such termination of employment. In addition, he will be entitled to receive accelerated vesting of any stock options, restricted stock units and restricted stock and he will have the full term of the options to exercise all outstanding options; provided, however, that the vesting and time to exercise any options granted prior to the effective date of the employment agreement will be governed by the plan or agreement under which such option was granted. Any payments to Mr. Clark will receive the same treatment with respect to Sections 409A and 4999 of the Code as described above. In consideration of the benefits received pursuant to the employment agreement, Mr. Clark’s non-competition obligations are extended for two years following his termination. Mr. Clark’s employment agreement is attached to this Form 10-Q as Exhibit 10.06.

30 EX-3.01 2 b55556fsexv3w01.txt EX-3.01 RESTATED CERTIFICATE OF INCORPORATION EXHIBIT 3.01 RESTATED CERTIFICATE OF INCORPORATION OF FISHER SCIENTIFIC INTERNATIONAL INC. Under Section 245 of the Delaware General Corporation Law FISHER SCIENTIFIC INTERNATIONAL INC., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certifies as follows: 1. The name of the Corporation is Fisher Scientific International Inc. The name under which the Corporation was originally incorporated was Fisher International Inc., and the original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on September 19, 1991. 2. This Restated Certificate of Incorporation was duly adopted in accordance with the provisions of Section 245 of the General Corporation Law of the State of Delaware. 3. This Restated Certificate of Incorporation only restates and integrates and does not further amend the provisions of the Corporation's Certificate of Incorporation as heretofore amended, restated or supplemented, and there is no discrepancy between those provisions and the provisions of this Restated Certificate of Incorporation. 4. The text of the Restated Certificate of Incorporation of the Corporation is restated to read in its entirety as follows: 1 FIRST: The name of this corporation is Fisher Scientific International Inc. (the "Corporation"). SECOND: The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 515,000,000 shares, of which 500,000,000 shall be common stock, par value $0.01 per share (the "Common Stock"), and 15,000,000 shares shall be preferred stock, par value $0.01 per share (the "Preferred Stock"). FIFTH: (a) Subject to the provisions of Article Fifth (b) hereof, the Corporation may issue Common Stock from time to time in one or more series or classes as the Board of Directors may establish by the adoption of a resolution or resolutions relating thereto, each series or class to have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof, as shall be stated in the resolution or resolutions providing for the issue of such series or class adopted by the Board of Directors pursuant to authority to do so, which authority is hereby granted to the Board of Directors. (b) The designations and the powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of such shares of Common Stock shall be governed by the following provisions: (i) Identical Rights. Except as otherwise provided in this Certificate of Incorporation, including in a resolution of the Board of Directors, adopted pursuant to the provisions of this Certificate of Incorporation, establishing any series or class of Common Stock or Preferred Stock, all shares of Common Stock shall be identical and shall entitle the holders thereof to the same rights and privileges. (ii) Voting Rights. Except as otherwise required by law or as otherwise provided in this Certificate of Incorporation, including in a resolution of the Board of Directors, adopted pursuant to the provisions of this Certificate of Incorporation, establishing any series or class of Common Stock or Preferred Stock, on all matters submitted to the Corporation's stockholders, the holders of Common Stock shall be entitled to one vote per share. 2 (iii) Dividend Rights. When and as dividends or other distributions are declared, whether payable in cash, in property or in securities of the Corporation, the holders of shares of Common Stock shall be entitled to share equally, share for share, in such dividends or other distributions, provided that if dividends or other distributions are declared which are payable in shares of Common Stock, such dividends or other distributions shall be declared payable at the same rate for all holders of Common Stock, and the dividends payable in shares of Common Stock will be payable to holders of Common Stock. (iv) No Closing of Transfer Books. The Corporation shall not close its books against the transfer of any share of Common Stock. SIXTH: The Corporation may issue Preferred Stock from time to time in one or more series as the Board of Directors may establish by the adoption of a resolution or resolutions relating thereto, each series to have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issue of such series adopted by the Board of Directors pursuant to authority to do so, which authority is hereby granted to the Board of Directors. SEVENTH: The duration of the Corporation is to be perpetual. EIGHTH: (a) Except as may be provided pursuant to resolutions of the Board of Directors, adopted pursuant to the provisions of this Certificate of Incorporation, establishing any series or class of Common Stock or Preferred Stock and granting to holders of shares of such series or class of Common Stock or Preferred Stock rights to elect additional directors under specified circumstances, the number of directors of the Corporation shall be determined from time to time in the manner described in the By-laws. The directors, other than those who may be elected by the holders of Common Stock or Preferred Stock pursuant to such resolutions, shall be classified with respect to the time for which they severally hold office into three classes, as nearly equal in number as possible, as shall be provided in the manner specified in the By-laws, one class initially to be elected for a term expiring at the annual meeting of stockholders to be held in 1992 another class initially to be elected for a term expiring at the annual meeting of stockholders to be held in 1993 and another class initially to be elected for a term expiring at the annual meeting of stockholders to be held in 1994 with the members of each class to hold office until their successors have been elected and qualified. At each annual meeting of stockholders, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. No director need be a stockholder. 3 (b) Except as otherwise provided in a resolution of the Board of Directors, adopted pursuant to the provisions of this Certificate of Incorporation, establishing a series or class of Common Stock or Preferred Stock and creating in the holders of shares of such series or class rights to elect directors under specified circumstances, newly created directorships resulting from any increase in the number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum of the Board of Directors, or by a sole remaining director. Any director elected in accordance with the preceding sentence shall hold office until the annual meeting of stockholders at which the term of office of the class to which such director has been elected expires, and until such director's successor shall have been duly elected and qualified. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. (c) Subject to the rights of holders of Common Stock or Preferred Stock to elect directors under circumstances specified in a resolution of the Board of Directors, adopted pursuant to the provisions of this Certificate of Incorporation establishing such series or class, any director may be removed from office only for cause by the affirmative vote of the holders of at least 80% of the voting power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (the "Voting Stock"), voting together as a single class. (d) Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of the Voting Stock, voting together as a single class, shall be required to amend or repeal, or adopt any provision inconsistent with, any provision of this Article EIGHTH. NINTH: Except as required by law and subject to the rights of the holders of any series of Preferred Stock established pursuant to the provisions of this Certificate of Incorporation, special meetings of stockholders may be called only by the Board of Directors or by the Chief Executive Officer pursuant to a resolution approved by a majority of the entire Board of Directors of the Corporation (as determined in accordance with the By-laws). Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of the Voting Stock, voting together as a single class, shall be required to amend or repeal, or adopt any provision inconsistent with, any provision of this Article NINTH. TENTH: No stockholder action may be taken except as an annual or special meeting of stockholders of the Corporation, and stockholders may not take any action by written consent in lieu of a meeting. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote 4 of the holders of at least 80% of the voting power of the Voting Stock, voting together as a single class, shall be required to amend or repeal, or adopt any provision inconsistent with, any provision of this Article TENTH. ELEVENTH: Unless and except to the extent that the By-laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot. TWELFTH: No contract or other transaction of the Corporation shall be void, voidable, fraudulent or otherwise invalidated, impaired or affected, in any respect, by reason of the fact that any one or more of the officers, directors or stockholders of the Corporation shall individually be party or parties thereto or otherwise interested therein, or shall be officers, directors or stockholders of any other corporation or corporations which shall be party or parties thereto or otherwise interested therein; provided that such contract or other transactions be duly authorized or ratified by the Board of Directors, with the assenting vote of a majority of the disinterested directors then present, or, if only one such is present, with his assenting vote. THIRTEENTH: The Board of Directors may from time to time make, amend, supplement or repeal the By-laws; provided, however, that the stockholders may change or repeal any By-law adopted by the Board of Directors; and provided, further, that no amendment or supplement to the By-laws adopted by the Board of Directors shall vary or conflict with any amendment or supplement adopted by the stockholders. Notwithstanding the foregoing and anything contained in this Certificate of Incorporation to the contrary, Section 3 ("Special Meetings") of Article II ("Meetings of Stockholders") of the By-laws, Section 2 ("Number, Election and Terms") or Section 10 ("Removal of Directors") of Article III ("Directors") of the By-laws, or the final sentence of Article XI ("Amendments") of the By-laws, shall not be amended or repealed, and no provision inconsistent with any thereof shall be adopted, without the affirmative vote of the holders of at least 80% of the voting power of the Voting Stock, voting together as a single class. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of the Voting Stock, voting together as a single class, shall be required to amend or repeal, or adopt any provision inconsistent with, any provision of this Article THIRTEENTH. FOURTEENTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. FIFTEENTH: (a) A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the 5 director's duty of loyalty to the Corporation or 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, or (iv) for any transaction from which the director derived an improper personal benefit. (b) (1) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action or inaction in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in this paragraph (b), the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this paragraph (b) shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. 6 (2) Right of Claimant to Bring Suit. If a claim under subparagraph (b)(1) is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceedings in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification or the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. (3) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this paragraph (b) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, By-law, agreement, vote of stockholders or disinterested directors or otherwise. (4) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. SIXTEENTH: The Corporation expressly elects not to be governed by Section 203 of the Delaware General Corporation Law. 7 IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate of Incorporation to be executed this 16th day of June, 2005. FISHER SCIENTIFIC INTERNATIONAL INC. By: /s/ Mark D. Roellig __________________________________________ Mark D. Roellig Vice President, General Counsel, Secretary 8 EX-10.01 3 b55556fsexv10w01.txt EX-10.01 FORM OF INDEMNIFICATION AGREEMENT EXHIBIT 10.01 FORM OF INDEMNIFICATION AGREEMENT This Indemnification Agreement ("Agreement") is made as of __________________, 20__, by and between Fisher Scientific International Inc, a Delaware corporation, along with any entities referred to in Section 2(c) below, (the "Company"), and [NAME OF DIRECTOR] ("Director"). RECITALS WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation. WHEREAS, the Board of Directors of the Company (the "Board") has determined that, in order to attract and retain qualified individuals as members of the Board, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors are being increasingly subjected to expensive and time-consuming litigation relating to the business and affairs of corporations. The Company recognizes that the cost of defending and otherwise participating in such litigation is far greater than the financial benefits of serving as a Director. Section 15(b)(3) of the Restated Certificate of Incorporation of the Company and the Delaware General Corporation Law ("DGCL") expressly provide that the indemnification provisions set forth therein are not exclusive and contemplate that agreements may be entered into between the Company and members of the Board (or parties serving at the request of the Board) with respect to indemnification; WHEREAS, the uncertainties relating to insurance have increased the difficulty of attracting and retaining directors; WHEREAS, the Board has determined that the increased difficulty in attracting and retaining directors is detrimental to the best interests of the Company's stockholders; WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to pay expenses on behalf of directors to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; WHEREAS, this Agreement is in furtherance of the Restated Certificate of Incorporation of the Company, its Bylaws and any resolutions adopted pursuant thereto, and the DGCL, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Director thereunder; WHEREAS, the Company has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Director to serve as a director or officer of the Company, Page - 1 - and the Company acknowledges that Director is relying upon this Agreement in serving as a director or officer of the Company; and WHEREAS, Director is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he be so indemnified; NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the Company and Director do hereby covenant and agree as follows: 1. SERVICES TO THE COMPANY. Director will serve or continue to serve, at the will of the Company and its stockholders for so long as Director is duly elected or appointed or until Director tenders his or her resignation. 2. DEFINITIONS. As used in this Agreement: (a) "Beneficial Owner" shall have the meaning given to such term in Rule 13d-3 under the Securities Exchange Act of 1934. (b) A "Change in Control" shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events: (i) Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company's then outstanding securities; (ii) Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board cease for any reason to constitute at least a majority of the members of the Board; (iii) Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity, including the parent corporation of such surviving entity) at least 50% of the total voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; (iv) Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets; and (v) Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a Page - 2 - response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. (c) "Company" shall include, in addition to Fisher Scientific International Inc., any corporation, partnership, joint venture, limited liability company, trust or other enterprise of which such Director is or was serving as a director, officer, employee or agent at the request of the Company, or any corporation which results from or survives a consolidation or merger with Fisher Scientific International Inc. as well as any corporation resulting from a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that if Director is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability corporation, trust or other enterprise, Director shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Director would have with respect to such constituent corporation if its separate existence had continued. (d) "Disinterested Director" means a director of the Company who is not and was not a party to the Proceeding as defined herein in respect of which indemnification is sought by Director. (e) "Enterprise" shall mean the Company and any other corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise of which Director is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary. (f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (g) "Expenses" shall include all reasonable attorneys' and accountants' fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise being involved with, a Proceeding as defined in this Agreement. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Director or the amount of judgments or fines against Director. (h) "Independent Counsel" means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Director in any matter material to either such party or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Director in an action to determine Director's rights under this Agreement. (i) "Person" shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person shall exclude (i) the Company or a person or entity that directly or indirectly controls, is controlled by, or is under common control with, the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, Page - 3 - and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. (j) The term "Proceeding" shall include any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation (including but not limited to any internal corporate investigation), inquiry, administrative hearing or any other actual, threatened or completed proceeding, including any and all appeals, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, in which Director was, is, or will be a party to, a witness in or otherwise participates in by reason of the fact that Director is or was a director or officer of the Company, by reason of any action taken by him or of any action on his part while acting as director or officer of the Company, or by reason of the fact that he is or was serving at the request of the Company as a director, officer, employee or agent of another Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or payment of expenses can be provided under this Agreement; except one initiated by a Director to enforce his rights under this Agreement. Any Director serving, in any capacity, (i) another corporation of which a majority of the shares entitled to vote in the election of its directors is held by the Company, or (ii) any employee benefit plan of the Company or of any corporation referred to in clause (i), shall be deemed to be doing so at the request of the Company. (k) References to "fines" shall include, but are not limited to, any excise tax assessed with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to in this Agreement. 3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. A Third-Party Proceeding is a Proceeding other than a Proceeding by or in the right of the Company to procure a judgment in its favor. The Company shall indemnify Director in accordance with the provisions of this Section 3 if Director is, or is threatened to be made, a party to, a witness in or otherwise participates in any Third-Party Proceeding. Pursuant to this Section 3, Director shall be indemnified against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Director or on his behalf in connection with such Third-Party Proceeding or any claim, issue or matter therein, if Director acted in good faith and in a manner Director reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal proceeding had no reasonable cause to believe that such conduct was unlawful. 4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company shall indemnify Director in accordance with the provisions of this Section 4 if Director is, or is threatened to be made, a party to, a witness in or otherwise participates in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Director shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein and to the extent permitted by law, amounts paid in settlement, if Director acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. No Page - 4 - indemnification for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which Director shall have been finally adjudged by a court to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery or any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Director is fairly and reasonably entitled to indemnification. 5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL. (a) In any Proceeding referred to in Section 4, if Director is not wholly successful in such Proceeding, but has been adjudged to be liable to the Company as to one or more but less than all claims, issues or matters in such Proceeding, no indemnification shall be made in respect of any claim, issue or matter as to which Director shall have been adjudged to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery or any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability to the Company, in view of all the circumstances of the case, Director is fairly and reasonably entitled to such indemnification. However, in any Proceeding referred to in Section 4, the Company shall indemnify Director against all Expenses actually and reasonably incurred by him or on his behalf and, to the extent permitted by law, amounts paid in settlement, in connection with each claim, issue or matter as to which Director is successful on the merits or has reached a settlement. (b) To the extent that Director has been successful on the merits or otherwise in defense of any Proceeding (including any Proceeding referred to in Section 4), or in defense of any claim, issue or matter therein, Director shall be indemnified and held harmless by the Company to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against all Expenses actually and reasonably incurred or suffered by Director or on Director's behalf in connection therewith. Indemnification pursuant to this Section 5(b) shall not require a determination pursuant to Section 10 of this Agreement. (c) For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in a Proceeding in which Director is a defendant by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter. 6. ADDITIONAL INDEMNIFICATION. (a) Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall indemnify Director to the extent permitted by law if Director is a party to or threatened to be made a party to, a witness in or otherwise participates in any Proceeding against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Director in connection with the Proceeding (1) unless Director's conduct constitutes a breach of Director's duty of loyalty to the Company or its stockholders (2) except for liability for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) except for liability under Section 174 of the DGCL, or (4) except for liability relating to any transaction from which the Director derived an improper benefit. (b) For purposes of Section 6(a), the meaning of the phrase "to the extent permitted by law" shall mean: Page - 5 - i. the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL; and ii. the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors. 7. EXCLUSIONS. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any payment for indemnity including Expenses, judgments, fines and amounts paid in settlement to the extent that the amount for which Director seeks indemnification, or a portion thereof: (a) has actually been made to or on behalf of Director under any insurance policy, contract, agreement or otherwise; or (b) is based upon an accounting of profits made from the purchase and sale (or sale and purchase) by Director of securities of the Company in violation of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law; or (c) in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Director, including any Proceeding (or any part of any Proceeding) initiated by Director against the Company or its directors, officers or employees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law. 8. NOTIFICATION OF INDEMNIFIABLE CLAIM. Director shall, as a condition precedent to his right to be indemnified under this Agreement, give the Company notice in writing as soon as practicable of any claim made against Director for which indemnification will or could be sought under this Agreement. Director agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which will or could be subject to indemnification or payment of Expenses covered hereunder. The Secretary of the Company shall, promptly upon receipt of such notice, advise the Board in writing of such notice. The failure of Director to timely notify the Company shall not relieve the Company of any obligation which it may have to the Director under this Agreement or otherwise, unless such failure to provide timely notice materially prejudices the Company. The omission to notify the Company will not relieve the Company from any liability for indemnification which it may have to Director otherwise than under this Agreement. 9. PAYMENT OF EXPENSES. Without regard to Director's ultimate entitlement to indemnification under other provisions of this Agreement, the Company shall pay the Expenses as incurred by Director or reimburse Director for his payment of such Expenses in connection with any Proceeding within thirty (30) days after the receipt by the Company of a written request for payment of expenses. If the DGCL so requires, payment of Expenses by the Company under this Section 9 shall be made only upon delivery to the Company of an undertaking ("Undertaking"). The Undertaking shall constitute the Director's agreement that: (i) he shall repay the Expenses paid by the Company to the extent that it is ultimately determined by final judicial decision from which Page - 6 - there is no further right to appeal that the Director is not entitled to be indemnified by the Company; and (ii) that in consideration for the payment of such expenses, the Company may, at its sole discretion, select counsel for Director, assume the defense or otherwise participate in the defense of such Proceeding. Payment of Expenses pursuant to this Section shall be unsecured and interest free. Payment of Expenses shall be made without regard to Director's ability to repay the expenses and without regard to Director's ultimate entitlement to indemnification under the other provisions of this Agreement. Such payment shall include any and all reasonable Expenses incurred pursuing an action to enforce this right of payment of Expenses, including Expenses incurred preparing and forwarding statements to the Company to support the payment claimed. This Section 9 shall not apply to any claim for Expenses made by Director for which indemnity is excluded pursuant to Section 7. Notwithstanding anything else contained in this Section 9, to the extent that the Company is prohibited by applicable law from making payment of Expenses to the Director prior to the Company's determination that the Director is entitled to indemnification, the Company shall not pay Expenses to the Director pursuant to this Section. Nothing herein shall be construed to limit the Company's right to seek damages from the Director, including but not limited to the full amount of the Expenses paid by the Company hereunder. The selection by the Company of defense counsel for the Director in connection with any Proceeding, shall be made only with the approval of the Director, which approval shall not be unreasonably withheld, upon the delivery to Director of written notice of the Company's election to do so. After delivery of such notice, approval of such counsel by Director and the retention of such counsel by the Company, the Company will not be liable to Director under this Agreement for any fees of counsel subsequently incurred by Director with respect to the same Proceeding, provided that (i) Director shall have the right to employ his counsel in any such Proceeding at Director's expense; and (ii) if (A) the employment of counsel by Director has been previously authorized by the Company, (B) Director shall have reasonably concluded that there may be a conflict of interest between the Company and Director in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such Proceeding, then the fees and expenses of Director's counsel shall be at the expense of the Company. 10. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon final disposition of a Proceeding for which indemnification is sought pursuant to Section 3 or Section 4, Director shall submit promptly (and in any event, no later than the applicable statute of limitations) to the Board a written request for indemnification averring that he has met the applicable standard of conduct set forth herein. Any indemnification made under this Agreement pursuant to Section 3 or Section 4 shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Director is proper in the circumstances because Director has met the applicable standard of conduct. Such determination shall be made in the following manner: (i) if a Change in Control shall have occurred and the Director is not a director at the time of such determination, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Director; and (ii) in any other circumstance: (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Director or (D) if so directed by the Board, by the stockholders of the Company, and, if it is so determined that Director is Page - 7 - entitled to indemnification, payment to Director shall be made within thirty (30) days after such determination. Director shall cooperate with the person, persons or entity making such determination with respect to Director's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Director and reasonably necessary to such determination. Any costs or expenses (including attorneys' fees and disbursements) incurred by Director in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Director's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Director harmless therefrom. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 10(a) hereof, the Independent Counsel shall be selected as provided in this Section 10(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board within ten (10) days of submission of a written request by Director for indemnification pursuant to Section 10(a), and the Company shall give written notice to Director advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Director within ten (10) days of submission of a written request by Director for indemnification pursuant to Section 10(a), (unless Director shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Director shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Director or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Director, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. The objection must also include a proposed substitute Independent Counsel. If objection including a proposed substituted Independent Counsel is timely made, such substituted Independent Counsel shall serve as Independent Counsel unless objected to within ten (10) days. An objection to the substituted Independent Counsel may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If written objection is made, the Independent Counsel or substituted Independent Counsel proposed may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within thirty (30) days after submission by Director of a written request for indemnification pursuant to Section 10(a) hereof, the parties have not agreed upon the selection of the Independent Counsel, either the Company or Director may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Director to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court or by such other person as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 10(a) hereof. (c) In the event of a Change in Control, the Company shall, upon written request by Director, create a trust for the benefit of Director (the "Trust") and from time to time upon written request of Director shall fund the Trust in an amount equal to all Expenses, judgments, fines and Page - 8 - amounts paid in settlement reasonably anticipated at the time to be incurred in connection with any Proceeding or any claim, issue or matter therein. The amount to be deposited in the Trust pursuant to the foregoing funding obligation shall be determined by the party required to make the determination that indemnification of Director is proper pursuant to Section 10(a) hereof (the "Reviewing Party"). The terms of the Trust shall provide that (i) the Trust shall not be revoked or the principal thereof invaded without the written consent of Director, (ii) the trustee of the Trust shall advance, within ten (10) business days of a request by Director, any and all Expenses to Director (and Director hereby agrees to reimburse the Trust under the circumstances in which Director would be required to reimburse the Company for any Expenses advanced under this Agreement), (iii) the Trust shall continue to be funded by the Company in accordance with the funding obligation set forth above, (iv) the trustee of the Trust shall promptly pay to Director all amounts for which Director shall be entitled to indemnification pursuant to this Agreement or otherwise and (v) all unexpended funds in that Trust shall revert to the Company upon a final determination by the Reviewing Party or a court of competent jurisdiction, as the case may be, that Director has received amounts, if any, which fully satisfy the Company's obligation to indemnify Director under the terms of this Agreement. The trustee of the Trust shall be chosen by Director. Nothing in this Section 10(c) shall relieve the Company of any of its obligations under this Agreement. 11. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. (a) The submission of the Application for Indemnification to the Board shall create a rebuttable presumption that the Director is entitled to indemnification under this Agreement, and the Board, Independent Counsel, or stockholders, as the case may be, may, at any time, specifically determine that the Director is so entitled, unless it or they possess sufficient evidence to rebut the presumption that Director has met the applicable standard of conduct. If a determination shall have been made pursuant to this Agreement that Director is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to Section 12, absent (i) a misstatement by Director of a material fact, or an omission of a material fact necessary to make Director's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Director has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Director has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Director has not met the applicable standard of conduct. Moreover, the fact that the Company has paid the Director's Expenses pursuant to Section 9 herein shall not create a presumption that Director has met the applicable standard of conduct for indemnification. Page - 9 - (b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Director to indemnification or create a presumption that Director did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Director had reasonable cause to believe that his conduct was unlawful. (c) For purposes of any determination of good faith, Director shall be deemed to have acted in good faith if Director's action is based on the advice of legal counsel for the Company or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company. The provisions of this Section 11(d) shall not be deemed exclusive or to limit in any way the other circumstances in which the Director may be deemed to have met the applicable standard of conduct set forth in this Agreement. (d) To the extent legally permissible, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Director for purposes of determining the right to indemnification under this Agreement. 12. REMEDIES OF DIRECTOR. (a) In the event that (i) a determination is made pursuant to Section 10 of this Agreement that Director is not entitled to indemnification under this Agreement, (ii) payment of Expenses is not timely made pursuant to Section 9 of this Agreement, or (iii) payment of indemnification pursuant to Section 3, 4, 5(a) or 6 of this Agreement is not made within thirty (30) days after a determination has been made that Director is entitled to indemnification, Director shall be entitled to an adjudication by a court of his entitlement to such indemnification or payment of Expenses. (b) In the event that Director successfully sues the Company for indemnification or payment of Expenses, and is successful in whole or in part, Director shall be entitled to be paid by Page - 10 - the Company for the Expense of prosecuting such suit. If the Company sues Director to recover Expenses paid and Director is successful in defending such suit, in whole or in part, Director shall be entitled to be paid the Expense of defending such suit. (c) In the event that a determination shall have been made under this Agreement that Director is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section shall be conducted in all respects as a de novo trial on the merits and Director shall not be prejudiced by reason of that adverse determination. In any judicial proceeding pursuant to this Section, the Company shall have the burden of proving Director is not entitled to indemnification or payment of Expenses, as the case may be. (d) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. The Company shall indemnify Director against any and all Expenses and, if requested by Director, shall (within thirty (30) days after receipt by the Company of a written request therefore) pay such Expenses to Director, which are incurred by Director in connection with any action brought by Director for indemnification or payment of Expenses from the Company under this Agreement or under any directors' and officers' liability insurance policies maintained by the Company, regardless of whether Director ultimately is determined to be entitled to such indemnification, payment of Expenses or insurance recovery, as the case may be. 13. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION. (a) The rights of indemnification and to receive payment of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Director may at any time be entitled under applicable law, the Company's Restated Certificate of Incorporation, the Company's Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Director under this Agreement in respect of any action taken or omitted by such Director prior to such amendment, alteration or repeal. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or payment of Expenses than would be afforded currently under the Company's Restated Certificate of Incorporation, Bylaws and this Agreement, it is the intent of the parties hereto that Director shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy. (b) The Company shall, from time to time, make the good faith determination whether or not it is practicable for the Company to obtain and maintain a policy or policies of insurance with reputable insurance companies providing the directors, officers, employees, or agents of the Company with coverage for losses from wrongful acts, or to ensure the Company's performance of its indemnification obligations under this Agreement. Among other considerations, the Company will weigh the costs of obtaining such insurance coverage against the protection Page - 11 - afforded by such coverage. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors of the Company or of any other corporation, partnership, joint venture, trust, employee benefits plan or other enterprise which the Director serves at the request of the Company, Director shall be covered by such policy or policies in such manner as to provide the Director the same rights and benefits as are accorded to the most favorably insured of the Company's directors. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Director, all amounts payable as a result of such proceeding in accordance with the terms of such policies. (c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Director, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. 14. DURATION OF AGREEMENT. This Agreement shall continue until and terminate upon the later of: (a) 10 years after the date that Director shall have ceased to serve as a director or officer of the Company or as a director, officer, employee or agent of any other corporation, partnership, joint venture, limited liability company, trust employee benefit plan or other enterprise which Director served at the request of the Company ("Ten Year Anniversary Date"); or (b) 1 year after the final termination of each and every Proceeding, commenced prior to the Ten Year Anniversary Date. 15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the Company and its successors and assigns and shall inure to the benefit of Director and his heirs, executors and administrators. 16. SEVERABILITY. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby. 17. ENTIRE AGREEMENT. Except as otherwise specified herein, this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof. 18. EFFECTIVENESS OF AGREEMENT. This Agreement shall be effective as of the date set forth on the first page and may apply to acts or omissions of Director which occurred prior to such date if Director was an officer, director, employee or other agent of the Company, or was serving at the request of the Company as a director, officer, employee or agent of another corporation, Page - 12 - partnership, joint venture, limited liability company, trust or other enterprise, at the time such act or omission occurred, and shall continue to exist after the rescission or restrictive modification of this Agreement with respect to events occurring prior to such rescission or restrictive modification. 19. MODIFICATION AND WAIVER. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver. 20. NOTICES. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (a) if delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or (b) if sent by overnight courier service (such as Federal Express): If to Director, at the address indicated on the signature page of this Agreement, or such other address as Director shall provide to the Company If to the Company, to --------------------------------- Attention: General Counsel ---------------------- ---------------------- ---------------------- or to any other address as may have been furnished to Director by the Company. 21. CONTRIBUTION. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Director for any reason whatsoever, the Company, in lieu of indemnifying Director, shall contribute to the amount incurred by Director, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Director as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Director in connection with such event(s) and/or transaction(s). 22. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. The Company and Director hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware (the "Delaware Court"), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the Page - 13 - Delaware Court, and (iv) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum. 23. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement. 24. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written. - -------------------------------------- By: --------------------------------- [NAME OF DIRECTOR] - ------------------------------------ ADDRESS OF DIRECTOR: - ------------------------------------ - ------------------------------------ - ------------------------------------ - ------------------------------------ Page - 14 - EX-10.02 4 b55556fsexv10w02.txt EX-10.02 AMENDMENT TO MONTRONE EMPLOYMENT AGREEMENT EXHIBIT 10.02 AMENDMENT TO EMPLOYMENT AGREEMENT This AMENDMENT (this "Amendment" or "Agreement") is made as of the 2nd day of August 2005 between Fisher Scientific International Inc., a Delaware corporation having its primary place of business at Liberty Lane, Hampton, New Hampshire 03842 (the "Company") and Paul M. Montrone (the "Executive"). The Company and the Executive desire to and hereby amend the Amended and Restated Employment Agreement ("Employment Agreement") entered into between the Company and the Executive on December 31, 2003, as follows: 1. The first sentence of Section 3(a) of the Employment Agreement is hereby amended and restated to read as follows: (a) Base Salary. The Executive shall be entitled to receive the annual base salary in effect as of the date of this Amendment ("Annual Base Salary"), which shall be paid in accordance with the Company's generally applicable payroll practices and policies, provided that, if any amount is not deductible under Section 162(m) that any portion of such base salary (taking into account any increase therein after the date hereof) that, if paid currently to the Executive, would not be deductible by the Company due to the provisions of Section 162(m) of the Internal Revenue Code, shall be mandatorily deferred and paid to the Executive within thirty (30) days after Executive's Date of Termination. 2. Section 5(a)(ii) of the Employment Agreement shall be amended and restated to read as follows: (ii) subject to the Executive remaining reasonably available to assist the Company, in such manner and at such time as shall be mutually agreed in good faith upon the Company's request through appropriate notice to the Executive, in the transition of his duties and responsibilities hereunder, the Company shall pay to the Executive within thirty (30) days following his Date of Termination an amount equal to the product of three (3) times the sum of: (x) the Executive's Annual Base Salary plus (y) the Executive's target annual bonus as determined under the Company's applicable compensation and incentive plan(s). It is expressly understood that the assistance to be provided to the Company under this clause (ii) shall not involve any fixed time commitment on the part of the Executive. For purposes of this Amendment, "Severance Period" shall mean the three-year period commencing on the Date of Termination. 3. A new Section 9 shall be added to the Employment Agreement, stating: 9. Certain Additional Benefits. (a) In the event that any payment(s), benefit(s) or other entitlement(s) received or to be received by the Executive in connection with a Change in Control of the Company, as defined in the Company's 2005 Equity and Incentive Plan, as that plan may be amended from time to time prior to any Change in Control, or it is determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Amendment but determined without regard to any additional payments required under this Section 9 (a "Payment")), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any comparable federal, state or local excise tax (such excise tax, together with any interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in such an amount that after the payment of all taxes (including, without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment and on the Gross-Up Payment, the Executive shall retain an amount equal to the Payment minus all applicable taxes other than the Excise Tax on the Payment; provided, however, that the Executive will be entitled to receive a Gross-Up Payment only if the amount of a parachute payment as defined in Section 280G(b)(2) of the Code exceeds the sum of (A) $50,000, plus (B) 2.99 times the Executive's base amount as defined in Section 280G(b)(3) of the Code, and provided further, that if the Executive is not entitled to receive a Gross-Up Payment, the Executive will receive the greatest amount of Total Payments that would not include any excess parachute payments as defined in Section 280G(b)(1) of the Code. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on any Payment and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment, and shall be liable for any loss of tax deduction caused by the Gross-Up Payment. (b) All determinations required to be made under this Section 9, including, without limitation, whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by any nationally recognized accounting firm, which firm must be acceptable to the Executive (the "Accounting Firm"). The Company shall cause the Accounting Firm to provide detailed supporting calculations to the Company and the Executive within fifteen (15) business days after notice is given by the Executive to the Company that there has been a Payment, or such earlier time as is requested by the Company. Within five (5) business days after said notice is given to the Company, the Company shall instruct the Accounting Firm to timely provide the data required by this Section 9 to the Executive. All fees and expenses of the Accounting Firm 2 shall be borne solely by the Company. Any Gross-Up Payment as determined pursuant to this Section 9, shall be paid by the Company to the Internal Revenue Service and/or other appropriate taxing authority on the Executive's behalf within five (5) days after receipt of the Accounting Firm's determination. The Accounting Firm shall make all determinations under the tax standard of "more likely than not." The Accounting Firm shall furnish the Executive with a written opinion that failure to disclose or report the Excise Tax on the Executive's federal income tax return will not constitute a substantial understatement of tax or be reasonably likely to result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payment will not have been made by the Company that should have been made ("Underpayment") or that the Gross-Up Payment was made that should not have been made ("Overpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and the Executive hereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Internal Revenue Service or other appropriate taxing authority on the Executive's behalf or, if such Underpayment has been previously paid by the Executive, to the Executive. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be due and payable within ninety (90) days after written demand to the Executive by the Company; provided, however that the Executive shall have no duty or obligation whatsoever to repay said amount unless the Executive's receipt of the Overpayment, or any portion thereof, is includible in the Executive's income and the Executive's repayment of same is not deductible by the Executive for federal and state income tax purposes. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service or state or local taxing authority, that, if successful, would result in any Excise Tax or an Underpayment ("Claim"). Such notice shall be given as soon as practicable but no later than fifteen (15) business days after the Executive is informed in writing of the Claim and shall apprise the Company of the nature of the Claim, the administrative or judicial appeal period, and the date on which any payment of the Claim must be paid. The Executive shall not pay any portion of the Claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any amount under the Claim is due). If the Company notifies the Executive in writing prior to the expiration of such thirty (30) day period that it desires to contest the Claim, the Executive shall: 3 (A) give the Company any information reasonably requested by the Company relating to the Claim; (B) take such action in connection with contesting the Claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation concerning the Claim by an attorney selected by the Company who is reasonably acceptable to the Executive; and (C) cooperate with the Company in good faith in order to effectively contest the Claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, without limitation, additional interest and penalties, attorneys' fees and costs) incurred in such contests and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed as a result of such representation. Without limitation upon the foregoing provisions of this Paragraph 9, except as provided below, the Company shall control all proceedings concerning such contest and, at its sole option, may pursue or forego any and all administrative appeal, proceedings, hearings and conferences with the taxing authority pertaining to the Claim. At the written request of the Company and upon payment to the Executive of an amount at least equal to the Claim plus any additional amount necessary to obtain the jurisdiction of the appropriate tribunal and/or court ("Additional Sum"), the Executive shall pay same and sue for a refund. The Executive agrees to prosecute any contest of a Claim to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company requests the Executive to pay the Claim and sue for interest-free basis, the Company shall indemnify and hold the Executive harmless on an after-tax basis, from any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed on such advance or for any imputed income on such advance. Any extension of the statute of limitations relating to assessment of any Excise Tax for the taxable year of the Executive which is the subject of the Claim shall be limited solely to the Claim. Furthermore, the Company's control of the contest shall be limited to issues for which a Gross-Up Payment would be payable hereunder. The Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9, the Executive receives any refund of a Claim and/or any Additional Sum, the Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after 4 taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9, a determination is made that the Executive shall not be entitled to any refund of the Claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund of a Claim prior to the expiration of thirty (30) days after such determination, then the portion of such advance attributable to a Claim shall be forgiven and shall not be required to be repaid. The amount of such advance attributable to a Claim shall offset, to the extent thereof, the amount of the Underpayment required to be paid by the Company to the Executive. (e) If, after the advance of an Additional Sum by the Company, there is a "Final Determination" (as defined below) made by the taxing authority that the Executive is not entitled to any refund of such Additional Sum, or any portion thereof, then such nonrefundable amount shall be repaid to the Company by the Executive within thirty (30) days after the Executive receives notice of such Final Determination. A "Final Determination" shall occur when the period to contest or otherwise appeal any decision by an administrative tribunal or court of initial jurisdiction has been waived or the time for contesting or appealing same has expired. 4. A new Section 10 shall be added to the Employment Agreement, stating: 10. Code Section 409A. This Amendment is intended to comply with the provisions of Section 409A of the Code in such a way that the Executive will not be subject to taxation in advance of the related distribution, excise taxes or underpayments, penalties as a result of the timing or form of the payments to the Executive. Notwithstanding anything to the contrary contained herein, if the Executive is a Specified Employee (as defined in Section 409A of the Code) at the time he would otherwise be entitled to receive any specific payment hereunder, no distributions shall be made with respect to that specific payment until the earliest date permitted by Section 409A(a)(2) of the Code. All other payments which do not result in any additional payments, liability or penalties shall be made as specified. To the extent any payment is delayed, interest will accrue at the rate of the United States five-year Treasury rate plus 2 percent on such delayed payment and be paid to the Executive at the same time as the delayed payment is made. 5. Sections 9, 10 and 11 in the Employment Agreement shall be renumbered Sections 11, 12 and 13, respectively and any and all references to the paragraphs 9, 10, and 11 in the Employment Agreement shall be revised and renumbered consistent with this change. 5 6. Except as expressly provided in this Amendment, the terms and provisions of the Amended and Restated Employment Agreement shall remain in full force and effect. The Executive has hereunto set the Executive's hand and, pursuant to the authorization from the Compensation Committee of the Board of Directors, the Company has caused this Agreement to be executed in its name on its behalf, all as of the day and year first above written. /s/ Paul M. Montrone -------------------------------------------------- PAUL M. MONTRONE FISHER SCIENTIFIC INTERNATIONAL INC. /s/ Paul M. Meister -------------------------------------------------- By: PAUL M. MEISTER 6 EX-10.03 5 b55556fsexv10w03.txt EX-10.03 AMENDMENT TO MEISTER EMPLOYMENT AGREEMENT EXHIBIT 10.03 AMENDMENT TO EMPLOYMENT AGREEMENT This AMENDMENT (this "Amendment" or "Agreement") is made as of the 2nd day of August 2005 between Fisher Scientific International Inc., a Delaware corporation having its primary place of business at Liberty Lane, Hampton, New Hampshire 03842 (the "Company") and Paul M. Meister (the "Executive"). The Company and the Executive desire to and hereby amend the Amended and Restated Employment Agreement ("Employment Agreement") entered into between the Company and the Executive on December 31, 2003, as follows: 1. The first sentence of Section 3(a) of the Employment Agreement is hereby amended and restated to read as follows: (a) Base Salary. The Executive shall be entitled to receive the annual base salary in effect as of the date of this Amendment ("Annual Base Salary"), which shall be paid in accordance with the Company's generally applicable payroll practices and policies, provided that, if any amount is not deductible under Section 162(m) that any portion of such base salary (taking into account any increase therein after the date hereof) that, if paid currently to the Executive, would not be deductible by the Company due to the provisions of Section 162(m) of the Internal Revenue Code, shall be mandatorily deferred and paid to the Executive within thirty (30) days after Executive's Date of Termination. 2. Section 5(a)(ii) of the Employment Agreement shall be amended and restated to read as follows: (ii) subject to the Executive remaining reasonably available to assist the Company, in such manner and at such time as shall be mutually agreed in good faith upon the Company's request through appropriate notice to the Executive, in the transition of his duties and responsibilities hereunder, the Company shall pay to the Executive within thirty (30) days following his Date of Termination an amount equal to the product of three (3) times the sum of: (x) the Executive's Annual Base Salary plus (y) the Executive's target annual bonus as determined under the Company's applicable compensation and incentive plan(s). It is expressly understood that the assistance to be provided to the Company under this clause (ii) shall not involve any fixed time commitment on the part of the Executive. For purposes of this Amendment, "Severance Period" shall mean the three-year period commencing on the Date of Termination. 3. A new Section 9 shall be added to the Employment Agreement, stating: 9. Certain Additional Benefits. (a) In the event that any payment(s), benefit(s) or other entitlement(s) received or to be received by the Executive in connection with a Change in Control of the Company, as defined in the Company's 2005 Equity and Incentive Plan, as that plan may be amended from time to time prior to any Change in Control, or it is determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Amendment but determined without regard to any additional payments required under this Section 9 (a "Payment")), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any comparable federal, state or local excise tax (such excise tax, together with any interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in such an amount that after the payment of all taxes (including, without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment and on the Gross-Up Payment, the Executive shall retain an amount equal to the Payment minus all applicable taxes other than the Excise Tax on the Payment; provided, however, that the Executive will be entitled to receive a Gross-Up Payment only if the amount of a parachute payment as defined in Section 280G(b)(2) of the Code exceeds the sum of (A) $50,000, plus (B) 2.99 times the Executive's base amount as defined in Section 280G(b)(3) of the Code, and provided further, that if the Executive is not entitled to receive a Gross-Up Payment, the Executive will receive the greatest amount of Total Payments that would not include any excess parachute payments as defined in Section 280G(b)(1) of the Code. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on any Payment and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment, and shall be liable for any loss of tax deduction caused by the Gross-Up Payment. (b) All determinations required to be made under this Section 9, including, without limitation, whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by any nationally recognized accounting firm, which firm must be acceptable to the Executive (the "Accounting Firm"). The Company shall cause the Accounting Firm to provide detailed supporting calculations to the Company and the Executive within fifteen (15) business days after notice is given by the Executive to the Company that there has been a Payment, or such earlier time as is requested by the Company. Within five (5) business days after said notice is given to the Company, the Company shall instruct the Accounting Firm to timely provide the data required by this Section 9 to the Executive. All fees and expenses of the Accounting Firm 2 shall be borne solely by the Company. Any Gross-Up Payment as determined pursuant to this Section 9, shall be paid by the Company to the Internal Revenue Service and/or other appropriate taxing authority on the Executive's behalf within five (5) days after receipt of the Accounting Firm's determination. The Accounting Firm shall make all determinations under the tax standard of "more likely than not." The Accounting Firm shall furnish the Executive with a written opinion that failure to disclose or report the Excise Tax on the Executive's federal income tax return will not constitute a substantial understatement of tax or be reasonably likely to result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payment will not have been made by the Company that should have been made ("Underpayment") or that the Gross-Up Payment was made that should not have been made ("Overpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and the Executive hereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Internal Revenue Service or other appropriate taxing authority on the Executive's behalf or, if such Underpayment has been previously paid by the Executive, to the Executive. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be due and payable within ninety (90) days after written demand to the Executive by the Company; provided, however that the Executive shall have no duty or obligation whatsoever to repay said amount unless the Executive's receipt of the Overpayment, or any portion thereof, is includible in the Executive's income and the Executive's repayment of same is not deductible by the Executive for federal and state income tax purposes. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service or state or local taxing authority, that, if successful, would result in any Excise Tax or an Underpayment ("Claim"). Such notice shall be given as soon as practicable but no later than fifteen (15) business days after the Executive is informed in writing of the Claim and shall apprise the Company of the nature of the Claim, the administrative or judicial appeal period, and the date on which any payment of the Claim must be paid. The Executive shall not pay any portion of the Claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any amount under the Claim is due). If the Company notifies the Executive in writing prior to the expiration of such thirty (30) day period that it desires to contest the Claim, the Executive shall: 3 (A) give the Company any information reasonably requested by the Company relating to the Claim; (B) take such action in connection with contesting the Claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation concerning the Claim by an attorney selected by the Company who is reasonably acceptable to the Executive; and (C) cooperate with the Company in good faith in order to effectively contest the Claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, without limitation, additional interest and penalties, attorneys' fees and costs) incurred in such contests and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed as a result of such representation. Without limitation upon the foregoing provisions of this Paragraph 9, except as provided below, the Company shall control all proceedings concerning such contest and, at its sole option, may pursue or forego any and all administrative appeal, proceedings, hearings and conferences with the taxing authority pertaining to the Claim. At the written request of the Company and upon payment to the Executive of an amount at least equal to the Claim plus any additional amount necessary to obtain the jurisdiction of the appropriate tribunal and/or court ("Additional Sum"), the Executive shall pay same and sue for a refund. The Executive agrees to prosecute any contest of a Claim to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company requests the Executive to pay the Claim and sue for interest-free basis, the Company shall indemnify and hold the Executive harmless on an after-tax basis, from any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed on such advance or for any imputed income on such advance. Any extension of the statute of limitations relating to assessment of any Excise Tax for the taxable year of the Executive which is the subject of the Claim shall be limited solely to the Claim. Furthermore, the Company's control of the contest shall be limited to issues for which a Gross-Up Payment would be payable hereunder. The Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9, the Executive receives any refund of a Claim and/or any Additional Sum, the Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after 4 taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9, a determination is made that the Executive shall not be entitled to any refund of the Claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund of a Claim prior to the expiration of thirty (30) days after such determination, then the portion of such advance attributable to a Claim shall be forgiven and shall not be required to be repaid. The amount of such advance attributable to a Claim shall offset, to the extent thereof, the amount of the Underpayment required to be paid by the Company to the Executive. (e) If, after the advance of an Additional Sum by the Company, there is a "Final Determination" (as defined below) made by the taxing authority that the Executive is not entitled to any refund of such Additional Sum, or any portion thereof, then such nonrefundable amount shall be repaid to the Company by the Executive within thirty (30) days after the Executive receives notice of such Final Determination. A "Final Determination" shall occur when the period to contest or otherwise appeal any decision by an administrative tribunal or court of initial jurisdiction has been waived or the time for contesting or appealing same has expired. 4. A new Section 10 shall be added to the Employment Agreement, stating: 10. Code Section 409A. This Amendment is intended to comply with the provisions of Section 409A of the Code in such a way that the Executive will not be subject to taxation in advance of the related distribution, excise taxes or underpayments, penalties as a result of the timing or form of the payments to the Executive. Notwithstanding anything to the contrary contained herein, if the Executive is a Specified Employee (as defined in Section 409A of the Code) at the time he would otherwise be entitled to receive any specific payment hereunder, no distributions shall be made with respect to that specific payment until the earliest date permitted by Section 409A(a)(2) of the Code. All other payments which do not result in any additional payments, liability or penalties shall be made as specified. To the extent any payment is delayed, interest will accrue at the rate of the United States five-year Treasury rate plus 2 percent on such delayed payment and be paid to the Executive at the same time as the delayed payment is made. 5. Section 11 in the Employment Agreement shall be deleted in its entirety. 6. Sections 9 and 10 in the Employment Agreement shall be renumbered Sections 11 and 12, respectively and any and all references to the Sections 9 and 10 in the Employment Agreement shall be revised and renumbered consistent with this change. 7. Except as expressly provided in this Amendment, the terms and provisions of the Amended and Restated Employment Agreement shall remain in full force and effect. 5 The Executive has hereunto set the Executive's hand and, pursuant to the authorization from the Compensation Committee of the Board of Directors, the Company has caused this Amendment to be executed in its name on its behalf, all as of the day and year first above written. /s/ Paul M. Meister -------------------------------------------------- PAUL M. MEISTER FISHER SCIENTIFIC INTERNATIONAL INC. /s/ Mark D. Roellig -------------------------------------------------- By: MARK D. ROELLIG 6 EX-10.04 6 b55556fsexv10w04.txt EX-10.04 SECOND AMENDMENT TO DELLA PENTA EMPLOYMENT AGREEMENT EXHIBIT 10.04 SECOND AMENDMENT TO EMPLOYMENT AGREEMENT This SECOND AMENDMENT (this "Second Amendment") is made as of the 2nd day of August 2005 between Fisher Scientific International Inc., a Delaware corporation having its primary place of business at Liberty Lane, Hampton, New Hampshire 03842 (the "Company") and David T. Della Penta, residing at 6 Dancer's Image Lane, North Hampton, New Hampshire 03862 (the "Executive"). The Company and the Executive entered into an employment agreement as of the 31st day of March, 1998 (the "Employment Agreement") and an Amendment to Employment Agreement dated December 31, 2003 (the "Amendment"). The Company and the Executive desire to and hereby amend these agreements as follows: 1. Section 4(a)(i)(B) of the Employment Agreement shall be amended and restated to read as follows: within thirty (30) days of the Date of Termination an amount equal to the product of two (2) times the Executive's Base Salary. 2. Section 4(a)(iii) of the Employment Agreement shall be amended and restated to read as follows: during the two year period commencing on the Date of Termination (the "Severance Period") or such longer period required by COBRA, to the extent not theretofore paid or provided, the Company shall provide, and timely pay the premiums for, medical coverage for the Executive and his dependents in a manner consistent with that provided to other peer executives of the Company. 3. A new Section 8 shall be added to the Employment Agreement, stating: 8. Certain Additional Benefits. (a) In the event that any payment(s), benefit(s) or other entitlement(s) received or to be received by the Executive in connection with a Change in Control of the Company, as defined in the Company's 2005 Equity and Incentive Plan, as that plan may be amended from time to time prior to any Change in Control, or it is determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Second Amendment but determined without regard to any additional payments required under this Section 8 (a "Payment")), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any comparable federal, state or local excise tax (such excise tax together with any interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in such an amount that after the payment of all taxes (including, without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment and on the Gross-Up Payment, the Executive shall retain an amount equal to the Payment minus all applicable taxes other than the Excise Tax on the Payment; provided, however, that the Executive will be entitled to receive a Gross-Up Payment only if the amount of a parachute payment as defined in Section 280G(b)(2) of the Code exceeds the sum of (A) $50,000, plus (B) 2.99 times the Executive's base amount as defined in Section 280G(b)(3) of the Code, and provided further, that if the Executive is not entitled to receive a Gross-Up Payment, the Executive will receive the greatest amount of Total Payments that would not include any excess parachute payments as defined in Section 280G(b)(1) of the Code. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on any Payment and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment, and shall be liable for any loss of tax deduction caused by the Gross-Up Payment. (b) All determinations required to be made under this Section 8, including, without limitation, whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by any nationally recognized accounting firm, which firm must be acceptable to the Executive (the "Accounting Firm"). The Company shall cause the Accounting Firm to provide detailed supporting calculations to the Company and the Executive within fifteen (15) business days after notice is given by the Executive to the Company that there has been a Payment, or such earlier time as is requested by the Company. Within five (5) business days after said notice is given to the Company, the Company shall instruct the Accounting Firm to timely provide the data required by this Section 8 to the Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment as determined pursuant to this Section 8, shall be paid by the Company to the Internal Revenue Service and/or other appropriate taxing authority on the Executive's behalf within five (5) days after receipt of the Accounting Firm's determination. The Accounting Firm shall make all determinations under the tax standard of "more likely than not." The Accounting Firm shall furnish the Executive with a written opinion that failure to disclose or report the Excise Tax on the Executive's federal income tax return will not constitute a substantial understatement of tax or be reasonably likely to result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payment will not have been made by the Company that should have been made ("Underpayment") or that the Gross-Up Payment was made that should not have been made ("Overpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Company 2 exhausts its remedies and the Executive hereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Internal Revenue Service or other appropriate taxing authority on the Executive's behalf or, if such Underpayment has been previously paid by the Executive, to the Executive. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be due and payable within ninety (90) days after written demand to the Executive by the Company; provided, however that the Executive shall have no duty or obligation whatsoever to repay said amount unless the Executive's receipt of the Overpayment, or any portion thereof, is includible in the Executive's income and the Executive's repayment of same is not deductible by the Executive for federal and state income tax purposes. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service or state or local taxing authority, that, if successful, would result in any Excise Tax or an Underpayment ("Claim"). Such notice shall be given as soon as practicable but no later than fifteen (15) business days after the Executive is informed in writing of the Claim and shall apprise the Company of the nature of the Claim, the administrative or judicial appeal period, and the date on which any payment of the Claim must be paid. The Executive shall not pay any portion of the Claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any amount under the Claim is due). If the Company notifies the Executive in writing prior to the expiration of such thirty (30) day period that it desires to contest the Claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to the Claim; (B) take such action in connection with contesting the Claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation concerning the Claim by an attorney selected by the Company who is reasonably acceptable to the Executive; and (C) cooperate with the Company in good faith in order to effectively contest the Claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, without limitation, additional interest and penalties, attorneys' fees and costs) incurred in such contests and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed as a result 3 of such representation. Without limitation upon the foregoing provisions of this Section 8, except as provided below, the Company shall control all proceedings concerning such contest and, at its sole option, may pursue or forego any and all administrative appeal, proceedings, hearings and conferences with the taxing authority pertaining to the Claim. At the written request of the Company and upon payment to the Executive of an amount at least equal to the Claim plus any additional amount necessary to obtain the jurisdiction of the appropriate tribunal and/or court ("Additional Sum"), the Executive shall pay same and sue for a refund. The Executive agrees to prosecute any contest of a Claim to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company requests the Executive to pay the Claim and sue for interest-free basis, the Company shall indemnify and hold the Executive harmless on an after-tax basis, from any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed on such advance or for any imputed income on such advance. Any extension of the statute of limitations relating to assessment of any Excise Tax for the taxable year of the Executive which is the subject of the Claim shall be limited solely to the Claim. Furthermore, the Company's control of the contest shall be limited to issues for which a Gross-Up Payment would be payable hereunder. The Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 8, the Executive receives any refund of a Claim and/or any Additional Sum, the Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 8, a determination is made that the Executive shall not be entitled to any refund of the Claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund of a Claim prior to the expiration of thirty (30) days after such determination, then the portion of such advance attributable to a Claim shall be forgiven and shall not be required to be repaid. The amount of such advance attributable to a Claim shall offset, to the extent thereof, the amount of the Underpayment required to be paid by the Company to the Executive. (e) If, after the advance of an Additional Sum by the Company, there is a "Final Determination" (as defined below) made by the taxing authority that the Executive is not entitled to any refund of such Additional Sum, or any portion thereof, then such nonrefundable amount shall be repaid to the Company by the Executive within thirty (30) days after the Executive receives notice of such Final Determination. A "Final Determination" shall occur when the period to contest or 4 otherwise appeal any decision by an administrative tribunal or court of initial jurisdiction has been waived or the time for contesting or appealing same has expired. 4. A new Section 9 shall be added to the Employment Agreement, stating: 10. Code Section 409A. This Amendment is intended to comply with the provisions of Section 409A of the Code in such a way that the Executive will not be subject to taxation in advance of the related distribution, excise taxes or underpayments, penalties as a result of the timing or form of the payments to the Executive. Notwithstanding anything to the contrary contained herein, if the Executive is a Specified Employee (as defined in Section 409A of the Code) at the time he would otherwise be entitled to receive any specific payment hereunder, no distributions shall be made with respect to that specific payment until the earliest date permitted by Section 409A(a)(2) of the Code. All other payments which do not result in any additional payments, liability or penalties shall be made as specified. To the extent any payment is delayed, interest will accrue at the rate of the United States five-year Treasury rate plus 2 percent on such delayed payment and be paid to the Executive at the same time as the delayed payment is made. 5. Except as expressly provided in this Second Amendment, the terms and provisions of the Employment Agreement, as amended, shall remain in full force and effect. The Executive has hereunto set the Executive's hand and, pursuant to the authorization from the Compensation Committee of the Board of Directors, the Company has caused this Second Amendment to be executed in its name on its behalf, all as of the day and year first above written. /s/ David T. Della Penta -------------------------------------------------- DAVID T. DELLA PENTA FISHER SCIENTIFIC INTERNATIONAL INC. /s/ Mark D. Roellig -------------------------------------------------- By: MARK D. ROELLIG 5 EX-10.05 7 b55556fsexv10w05.txt EX-10.05 AMENDMENT TO ROELLIG EMPLOYMENT AGREEMENT Exhibit 10.05 AMENDMENT TO EMPLOYMENT AGREEMENT This AMENDMENT (this "Amendment" or "Agreement") is made as of the 2nd day of August 2005 between Fisher Scientific International Inc., a Delaware corporation having its primary place of business at Liberty Lane, Hampton, New Hampshire 03842 (the "Company") and Mark D. Roellig (the "Executive"). The Company and the Executive desire to and hereby amend the Employment Agreement ("Employment Agreement") entered into between the Company and the Executive on March 9, 2005, as follows: 1. A new Section 9 shall be added to the Employment Agreement, stating: 9. Certain Additional Benefits. (a) In the event that any payment(s), benefit(s) or other entitlement(s) received or to be received by the Executive in connection with a Change in Control of the Company, as defined in the Company's 2005 Equity and Incentive Plan, as that plan may be amended from time to time prior to any Change in Control, or it is determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Amendment but determined without regard to any additional payments required under this Section 9 (a "Payment")), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any comparable federal, state or local excise tax (such excise tax, together with any interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in such an amount that after the payment of all taxes (including, without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment and on the Gross-Up Payment, the Executive shall retain an amount equal to the Payment minus all applicable taxes other than the Excise Tax on the Payment; provided, however, that the Executive will be entitled to receive a Gross-Up Payment only if the amount of a parachute payment as defined in Section 280G(b)(2) of the Code exceeds the sum of (A) $50,000, plus (B) 2.99 times the Executive's base amount as defined in Section 280G(b)(3) of the Code, and provided further, that if the Executive is not entitled to receive a Gross-Up Payment, the Executive will receive the greatest amount of Total Payments that would not include any excess parachute payments as defined in Section 280G(b)(1) of the Code. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on any Payment and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment, and shall be liable for any loss of tax deduction caused by the Gross-Up Payment. (b) All determinations required to be made under this Section 9, including, without limitation, whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by any nationally recognized accounting firm, which firm must be acceptable to the Executive (the "Accounting Firm"). The Company shall cause the Accounting Firm to provide detailed supporting calculations to the Company and the Executive within fifteen (15) business days after notice is given by the Executive to the Company that there has been a Payment, or such earlier time as is requested by the Company. Within five (5) business days after said notice is given to the Company, the Company shall instruct the Accounting Firm to timely provide the data required by this Section 9 to the Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment as determined pursuant to this Section 9, shall be paid by the Company to the Internal Revenue Service and/or other appropriate taxing authority on the Executive's behalf within five (5) days after receipt of the Accounting Firm's determination. The Accounting Firm shall make all determinations under the tax standard of "more likely than not." The Accounting Firm shall furnish the Executive with a written opinion that failure to disclose or report the Excise Tax on the Executive's federal income tax return will not constitute a substantial understatement of tax or be reasonably likely to result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payment will not have been made by the Company that should have been made ("Underpayment") or that the Gross-Up Payment was made that should not have been made ("Overpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and the Executive hereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Internal Revenue Service or other appropriate taxing authority on the Executive's behalf or, if such Underpayment has been previously paid by the Executive, to the Executive. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be due and payable within ninety (90) days after written demand to the Executive by the Company; provided, however that the Executive shall have no duty or obligation whatsoever to repay said amount unless the Executive's receipt of the Overpayment, or any portion thereof, is includible in the Executive's income and the Executive's repayment of same is not deductible by the Executive for federal and state income tax purposes. 2 (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service or state or local taxing authority, that, if successful, would result in any Excise Tax or an Underpayment ("Claim"). Such notice shall be given as soon as practicable but no later than fifteen (15) business days after the Executive is informed in writing of the Claim and shall apprise the Company of the nature of the Claim, the administrative or judicial appeal period, and the date on which any payment of the Claim must be paid. The Executive shall not pay any portion of the Claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any amount under the Claim is due). If the Company notifies the Executive in writing prior to the expiration of such thirty (30) day period that it desires to contest the Claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to the Claim; (B) take such action in connection with contesting the Claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation concerning the Claim by an attorney selected by the Company who is reasonably acceptable to the Executive; and (C) cooperate with the Company in good faith in order to effectively contest the Claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, without limitation, additional interest and penalties, attorneys' fees and costs) incurred in such contests and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed as a result of such representation. Without limitation upon the foregoing provisions of this Paragraph 9, except as provided below, the Company shall control all proceedings concerning such contest and, at its sole option, may pursue or forego any and all administrative appeal, proceedings, hearings and conferences with the taxing authority pertaining to the Claim. At the written request of the Company and upon payment to the Executive of an amount at least equal to the Claim plus any additional amount necessary to obtain the jurisdiction of the appropriate tribunal and/or court ("Additional Sum"), the Executive shall pay same and sue for a refund. The Executive agrees to prosecute any contest of a Claim to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company requests the Executive to pay the Claim and sue for interest-free basis, the Company shall indemnify and hold the Executive harmless on an after-tax basis, from any Excise Tax or income tax (including, 3 without limitation, interest and penalties thereon) imposed on such advance or for any imputed income on such advance. Any extension of the statute of limitations relating to assessment of any Excise Tax for the taxable year of the Executive which is the subject of the Claim shall be limited solely to the Claim. Furthermore, the Company's control of the contest shall be limited to issues for which a Gross-Up Payment would be payable hereunder. The Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9, the Executive receives any refund of a Claim and/or any Additional Sum, the Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9, a determination is made that the Executive shall not be entitled to any refund of the Claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund of a Claim prior to the expiration of thirty (30) days after such determination, then the portion of such advance attributable to a Claim shall be forgiven and shall not be required to be repaid. The amount of such advance attributable to a Claim shall offset, to the extent thereof, the amount of the Underpayment required to be paid by the Company to the Executive. (e) If, after the advance of an Additional Sum by the Company, there is a "Final Determination" (as defined below) made by the taxing authority that the Executive is not entitled to any refund of such Additional Sum, or any portion thereof, then such nonrefundable amount shall be repaid to the Company by the Executive within thirty (30) days after the Executive receives notice of such Final Determination. A "Final Determination" shall occur when the period to contest or otherwise appeal any decision by an administrative tribunal or court of initial jurisdiction has been waived or the time for contesting or appealing same has expired. 2. A new Section 10 shall be added to the Employment Agreement, stating: 10. Code Section 409A. This Amendment is intended to comply with the provisions of Section 409A of the Code in such a way that the Executive will not be subject to taxation in advance of the related distribution, excise taxes or underpayments, penalties as a result of the timing or form of the payments to the Executive. Notwithstanding anything to the contrary contained herein, if the Executive is a Specified Employee (as defined in Section 409A of the Code) at the time he would otherwise be entitled to receive any specific payment hereunder, no distributions shall be made with respect to that specific payment until the earliest date permitted by Section 409A(a)(2) of the Code. All other payments which do not result in any additional payments, liability or penalties shall be made as specified. To the 4 extent any payment is delayed, interest will accrue at the rate of the United States five-year Treasury rate plus 2 percent on such delayed payment and be paid to Executive at the same time as the delayed payment is made. 3. Section 11(f) in the Employment Agreement shall be deleted in its entirety. 4. Sections 9, 10, 11 and 12 in the Employment Agreement shall be renumbered Sections 9, 10, 11 and 12, respectively and any and all references to the Sections 9, 10, 11 and 12 in the Employment Agreement shall be revised and renumbered consistent with this change. 5. Except as expressly provided in this Amendment, the terms and provisions of the Employment Agreement shall remain in full force and effect. The Executive has hereunto set the Executive's hand and, pursuant to the authorization from the Compensation Committee of the Board of Directors, the Company has caused this Amendment to be executed in its name on its behalf, all as of the day and year first above written. /s/ Mark D. Roellig -------------------------------------------------- MARK D. ROELLIG FISHER SCIENTIFIC INTERNATIONAL INC. /s/ Paul M. Meister -------------------------------------------------- By: PAUL M. MEISTER 5 EX-10.06 8 b55556fsexv10w06.txt EX-10.06 EMPLOYMENT AGREEMENT WITH KEVIN P. CLARK Exhibit 10.06 EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT (this "Agreement") is entered into by and between Fisher Scientific International Inc., a Delaware corporation (the "Company") and Kevin P. Clark (the "Executive"), and dated as of the 2nd day of August, 2005. 1. TERM OF THE AGREEMENT. This Agreement shall commence as of the date of this Agreement (the "Effective Date"). The Executive's services under Paragraph 2 shall commence on such date and end on December 31, 2007 or any earlier Date of Termination (as defined in Section 4(e)) (the "Initial Employment Period" and, together with any extensions thereof pursuant to the next sentence, the "Employment Period"). As of the last day of the Initial Employment Period and each anniversary thereof, unless either party hereto shall have given the other party sixty (60) days' advance notice that there shall be no further extensions pursuant to this sentence, the Employment Period shall be extended by an additional year. In the event of a Change in Control, as defined in Paragraph 6, this Agreement will remain in effect until the second anniversary of a Change in Control. 2. POSITION AND DUTIES. During the Employment Period, the Executive's position (including status, offices, titles and reporting requirements), authority, duties and responsibilities shall be at least commensurate in all material respects with those held, exercised and assigned to the Executive on the day immediately preceding the Effective Date. The Executive's services shall be performed at the location where the Executive was employed on the day immediately preceding the Effective Date or any office or location less than fifty (50) miles from such location. During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive agrees to devote his attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive hereunder, to use the Executive's reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period, it shall not be a violation of this Agreement for the Executive to (a) serve on corporate, civic, charitable, governmental or religious boards or committees, (b) deliver lectures, fulfill speaking engagements or teach at educational institutions, (c) participate in political activities and fundraising, and (d) manage personal investments, so long as such activities do not significantly interfere with the performance of the Executive's responsibilities as an employee of the Company in accordance with this Agreement. It is expressly understood and agreed that to the extent that any such activities have been conducted by the Executive prior to the Effective Date, the continued conduct of such activities (or the conduct of activities similar in nature and scope thereto) subsequent to the Effective Date shall not thereafter be deemed to interfere with the performance of the Executive's responsibilities to the Company. 3. COMPENSATION. (a) BASE SALARY. During the Employment Period, the Executive shall receive an annual base salary of at least $375,000 ("Annual Base Salary"), which amount may be increased from time to time and which shall be paid in accordance with the Company's generally applicable payroll practices and policies, except that any portion of such base salary (taking into account any increase therein after the date hereof) that, if paid currently to Executive, would not be deductible by the Company due to the provisions of Section 162(m) of the Internal Revenue Code, shall be mandatorily deferred and paid to the Executive upon termination of employment for any reason. Any amounts mandatorily deferred pursuant to the immediately preceding sentence shall be credited to a book entry account for the Executive under a Company sponsored deferred compensation plan and the Executive shall have all rights and benefits as a participant in such plan, including the right to have deemed earnings credited on such deferred amounts in accordance with the term of such plan. During the Employment Period, the Annual Base Salary shall be reviewed at least annually. Any increase in Annual Base Salary shall not serve to limit or reduce any other obligation to the Executive under this Agreement. The Annual Base Salary shall not be reduced after any such increase and the term Annual Base Salary as utilized in this Agreement shall refer to Annual Base Salary as so increased. The Annual Base Salary can be reduced as part of a similar reduction which is applied to all similarly situated executives. (b) INCENTIVE, SAVINGS AND RETIREMENT PLANS GENERALLY. During the Employment Period, and without limiting the Executive's rights under Paragraph 3(c), the Executive shall be entitled to participate in and shall receive all benefits under all incentive, savings and retirement plans, practices, policies and programs applicable generally to other peer executives of the Company. Without limiting the generality of the foregoing (including the right of the Executive to participate in and receive all benefits under any short-term or special bonus or other incentive compensation opportunities), the target regular annual bonus opportunity made available to the Executive with respect to any calendar year after 2005 shall be at least equal to 100% of his Annual Base Salary for such year (the "Target Regular Annual Bonus"). No portion of the bonus payable to the Executive for any calendar year during the term of this Agreement shall be guaranteed, except as otherwise provided in Paragraphs 5 or 6. (c) WELFARE BENEFIT PLANS. During the Employment Period, the Executive and/or the Executive's eligible dependents, as the case may be, shall be eligible for participation in and shall receive all benefits under welfare benefit plans, practices, policies and programs provided by the Company (including, without limitation, medical, prescription, dental, disability, salary continuance, employee life, group life, accidental death and travel 2 accident insurance plans and programs) to the extent applicable generally to other peer executives of the Company. (d) EXPENSES. During the Employment Period, the Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by the Executive in respect of his services to the Company in accordance with the policies, practices and procedures of the Company to the extent applicable generally to other peer executives of the Company. (e) VACATION. During the Employment Period, the Executive shall be entitled to paid vacation and time off in accordance with the plans, policies, programs and practices of the Company in all respects to the extent applicable generally to other peer executives of the Company. (f) PERQUISITES. During the Employment Period, the Executive shall be entitled to receive perquisites in accordance with the policies, practices and procedures of the Company to the extent applicable generally to other peer executives of the Company. 4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The Executive's employment shall terminate automatically upon the Executive's death during the Employment Period. If the Company determines in good faith that the Disability of the Executive has occurred during the Employment Period (pursuant to the definition of Disability set forth below), it may give to the Executive written notice in accordance with Paragraph 12(b) of this Agreement of its intention to terminate the Executive's employment. In such event, the Executive's employment with the Company shall terminate effective on the 30th day after receipt of such notice by the Executive (the "Disability Effective Date"), provided that, within the 30 days after such receipt, the Executive shall not have returned to full-time performance of the Executive's duties. For purposes of this Agreement, "Disability" shall mean the absence of the Executive from the Executive's duties with the Company on a full-time basis for 180 consecutive business days as a result of incapacity due to mental or physical illness which is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or the Executive's legal representative. (b) CAUSE. The Company may terminate the Executive's employment during the Employment Period for Cause. For purposes of this Agreement, "Cause" shall mean: (i) the willful and continued failure of the Executive to perform substantially the Executive's duties hereunder with the Company or one of its affiliates (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to the Executive 3 by the Vice Chairman or the Chief Executive Officer which specifically identifies the manner in which the Vice Chairman or Chief Executive Officer believes that the Executive has not substantially performed the Executive's duties, or (ii) the willful engaging by the Executive in illegal conduct or gross misconduct that is materially and demonstrably injurious to the Company. For purposes of this provision, no act or failure to act, on the part of the Executive, shall be considered "willful" unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive's action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given by the Board, the direction of the Vice Chairman or the Chief Executive Officer or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company, unless such authority, direction or advice is in violation of applicable law, regulation, Company policy or the Company's most current Code of Conduct. (c) GOOD REASON. The Executive's employment may be terminated by the Executive for Good Reason at any time within ninety (90) days after the Executive first has actual knowledge of the occurrence of such Good Reason. For purposes of this Agreement, "Good Reason" shall mean: (i) the assignment to the Executive of any duties inconsistent in any respect with the Executive's position (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by Paragraph 2 of this Agreement, or any other action by the Company which results in a material diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive; (ii) the Company's relocation of the Executive's principal place of employment to a location more than fifty (50) miles from the place of employment provided in Paragraph 2 hereof; or (iii) a material breach of this Agreement by the Company that remains uncured for a period of thirty (30) days following the Executive providing notice of such breach to the Company or any purported termination by the Company of the Executive's employment other than for Cause, or due to death or Disability. 4 (d) NOTICE OF TERMINATION. Any termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by Notice of Termination to the other party hereto given in accordance with Paragraph 12(b) of this Agreement. For purposes of this Agreement, a "Notice of Termination" means a written notice which: (i) indicates the specific termination provision in this Agreement relied upon; (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive's employment under the provision so indicated; and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than thirty (30) days after the giving of such notice). In the event the Executive provides the Company with a Notice of Termination for Good Reason under Paragraph 4(c), the Company shall have thirty (30) days to cure the circumstances that the Executive alleges constitute Good Reason; and if so cured, no Good Reason shall be deemed to have occurred hereunder. The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive's or the Company's rights hereunder. (e) DATE OF TERMINATION. "Date of Termination" means: (i) if the Executive's employment is terminated by the Company for Cause, the date of receipt of the Notice of Termination, or any later date specified therein, as the case may be; (ii) if the Executive's employment is terminated by the Executive for Good Reason under Paragraph 4(c), the 30th day following the Company's receipt of the Notice of Termination, provided the circumstances that the Executive alleges constitute Good Reason have not been cured prior to such date; (iii) if the Executive's employment is terminated by the Executive for Good Reason after a Change in Control, the day the Company receives the Notice of Termination; 5 (iv) if the Executive's employment is terminated by the Company other than for Cause or Disability, the date on which the Company notifies the Executive of such termination or any other later date so specified; (v) if the Executive's employment is terminated by the Executive other than for Good Reason, the date on which the Executive notifies the Company of such termination or such later date chosen by the Company within thirty (30) days of the date on which the Executive notifies the Company of such termination; and (vi) if the Executive's employment is terminated by reason of death or Disability, the date of death of the Executive or the Disability Effective Date, as the case may be. 5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) BY EXECUTIVE FOR GOOD REASON; BY THE COMPANY OTHER THAN FOR CAUSE OR DISABILITY. In partial consideration for the noncompetition covenants of the Executive pursuant to Paragraph 9(b) and in part as liquidated damages in lieu of the payments and benefits to which the Executive would have been entitled through the remainder of the Employment Period, if, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment for Good Reason, the Company shall pay to the Executive or his legal representative a lump sum in cash within thirty (30) days after the Date of Termination equal to the sum of the following amounts: (i) two (2) times the Executive's then current Annual Base Salary; (ii) the Executive's Annual Base Salary through the Date of Termination; (iii) any previous years' regular annual bonus, to the extent earned but not previously paid; (iv) any earned but unpaid previous years' Annual Bonus(es); (v) payment for any accrued vacation; (vi) the product of (x) the Target Regular Annual Bonus and (y) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is 365; and 6 (vii) the Company shall pay the Executive or his legal representative any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) as provided by the terms of such deferred compensation plan or program (the "Deferred Compensation"). The sum of all of the amounts described in subparagraphs (ii), (iii), (iv), (v) and (vii) of this Paragraph 5(a) shall be hereinafter referred to as the "Accrued Obligations." Notwithstanding anything herein to the contrary, no payments shall be made or benefits provided to the Executive under Paragraph 5 or 6 unless the Executive shall have executed a release and waiver of claims in the form acceptable to the Company (the "Release") and the last day of any applicable revocation period ("Revocation Date") under such Release shall have expired. (b) DEATH. If the Executive's employment is terminated by reason of the Executive's death during the Employment Period, this Agreement shall terminate without further obligations to the Executive, other than for payment of Accrued Obligations to the Executive, his estate and/or beneficiaries. (c) DISABILITY. If the Executive's employment is terminated by reason of the Executive's Disability during the Employment Period, this Agreement shall terminate without further obligations to the Executive, other than for payment of Accrued Obligations, except that the Executive shall be entitled to receive disability and other benefits at a level generally provided by the Company to disabled executives and/or their families in accordance with such plans, programs, practices and policies relating to disability, if any, as in effect generally for other peer executives and their families. (d) BY THE COMPANY FOR CAUSE. If the Executive's employment is terminated by the Company for Cause during the Employment Period, this Agreement shall terminate without further obligations to the Executive, other than for payment of Accrued Obligations. 6. CHANGE IN CONTROL. (a) For purposes of this Agreement, a "Change in Control" of the Company shall have the meaning in the Fisher Scientific International Inc. 2005 Equity and Incentive Plan, as that plan may be amended from time to time prior to any Change in Control. (b) TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN CONTROL. Upon a termination of employment by the Executive for Good Reason (as defined in Paragraph 6(c) below) or by the Company without Cause, in each case within two (2) years immediately following a Change in Control of the Company, then in lieu of any payments or benefits set forth in Paragraph 5 of this Agreement, the Executive shall be 7 entitled to receive and the Company shall provide to the Executive those payments and benefits set forth in Paragraph 6(d) below. Notwithstanding anything in this Agreement to the contrary, if a Change in Control of the Company occurs and if the Executive's employment with the Company is terminated prior to the date on which the Change in Control of the Company occurs, and if there is a reasonable basis that such termination of employment (1) was at the request of a third party that has taken steps reasonably calculated to effect a Change in Control of the Company or (2) otherwise arose in connection with or anticipation of a Change in Control of the Company and in each of (1) and (2) a Change in Control occurs within one (1) year following the Executive's termination of employment as set forth in this Paragraph 6(b), then such termination of employment shall be treated as a termination of the Executive's employment following a Change in Control of the Company and the Executive shall be entitled to receive the compensation and benefits set forth in Paragraph 6(d). (c) The Executive may terminate Executive's employment for Good Reason at any time after a Change in Control either by resignation or by retirement (if eligible). For purposes of this Agreement, "Good Reason" after a Change in Control shall mean any of the following: (i) a material adverse change in the Executive's position, duties, or responsibilities with the Company as in effect immediately prior to a Change in Control of the Company; (ii) a reduction by the Company in the Executive's remuneration as in effect immediately prior to the time of a Change in Control of the Company, unless a similar reduction is applied to all similarly situated executives or the Company's failure to increase (within twelve (12) months of the Executive's last increase in base salary) the Executive's base salary after a Change in Control of the Company in an amount similar to other similarly situated executives at the Company receiving an increase in base salary after the Change in Control; (iii) any failure by the Company to continue in effect any material plan or arrangement, including without limitation benefit and incentive plans, in which the Executive is participating immediately prior to the time of a Change in Control of the Company (hereinafter referred to as "Plans"), unless the Company provides for the Executive to participate in replacement benefit and incentive plans that are no less favorable in the aggregate than the Plans, or the taking of any action by the Company which would materially adversely affect the Executive's participation in or reduce the Executive's benefits under any such Plan or replacement plan or provide the Executive with less favorable fringe benefits in the aggregate as compared to those enjoyed by the Executive immediately prior to the time of a Change in Control of the Company; 8 (iv) the Executive's relocation to any place more than fifty (50) miles from the location at which the Executive performed Executive's duties immediately prior to the time of a Change in Control of the Company, except for required travel by the Executive on the Company's business to an extent substantially consistent with the Executive's business travel obligations immediately prior to the time of a Change in Control of the Company; (v) any failure by the Company to provide the Executive on an annual basis with fewer than the number of annual vacation or paid leave days to which the Executive is entitled on an annual basis immediately prior to the time of a Change in Control of the Company; (vi) any material breach by the Company of any provision of this Agreement or any other material agreement with the Executive; (vii) any failure by the Company to obtain the assumption of this Agreement by any successor or assign of the Company; or (viii) any purported termination of the Executive's employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Paragraph 4(d), and for purposes of this Agreement, no such purported termination shall be effective. For purposes of this definition, none of the actions described in clauses (i) through (viii) above shall constitute "Good Reason" with respect to the Executive if it was an isolated and inadvertent action not taken in bad faith by the Company and if it is remedied by the Company within five (5) business days after receipt of written notice thereof given by the Executive. (d) SEVERANCE UPON TERMINATION FOLLOWING A CHANGE IN CONTROL. Upon a termination of employment as described in Paragraph 6(b), the Executive shall be entitled to receive and the Company shall provide to the Executive the following severance and benefits: (i) a lump sum payment, within five (5) days of the Revocation Date, equal to the sum of: (1) two and a half (2.5) times the sum of (i) Executive's then current Annual Base Salary (or if greater, the Executive's Annual Base Salary in effect immediately prior to the Change in Control), plus (ii) the cash value of Executive's target annual incentive compensation for the year in which the Date of Termination occurs (the "Annual Bonus"), plus (2) the Accrued Obligations, provided that any accrued but unpaid annual incentive payments for previous years shall be determined based upon actual Company results and not reduced for individual performance, plus (3) the product of (x) the Annual Bonus and (y) a 9 fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is 365, plus (4) an amount equal to the total value of two and a half (2.5) years of matching contributions made by the Company on behalf of Executive under the Company's tax qualified defined contribution plan (and under any non-qualified defined contribution plan providing matching contributions) at a matching level equal to the level of participation of the Executive prior to the Date of Termination, plus any Company matching contributions under such plans forfeited as of the Date of Termination; (ii) the Company shall continue to provide the Executive and his eligible dependents, for a period of two and a half (2.5) years following the Date of Termination, with medical, dental, vision, life insurance and accidental death and dismemberment insurance, in a manner and timing consistent with the benefit and welfare plans, policies and programs, executive services, perquisites and insurance plans or programs in which the Executive participates in effect immediately prior to the time of the Change in Control of the Company (or any successor benefit and welfare plans, policies and programs, executive services, perquisites and insurance plans or programs, to the extent more favorable to the Executive) and such benefits, and costs to the Executive of such coverage, shall be no less favorable to the Executive than as in effect as of the Change in Control of the Company and shall not be affected by any subsequent employment of the Executive. As of the Date of Termination, Executive shall be fully vested in any account balance, matching and all other benefits under any non-qualified defined contribution plans. Following the end of the two and a half (2.5) year period during which medical benefits are provided, the Executive shall be eligible for continued health coverage under "COBRA" as if the Executive's employment with the Company had terminated as of the end of such period. In the event the Executive is ineligible, for whatever reason, to continue to be so covered with respect to any of the above-referenced plans or programs, the Company shall provide substantially the cash value of purchasing essentially equivalent coverage through other sources; (iii) the Executive shall be entitled to receive all benefits set forth under the terms and conditions of the Fisher Scientific International Inc. Executive Retirement and Savings Program (the "Retirement and Savings Program"). For purposes of calculating the Executive's age and years of service for determining eligibility and level of benefits (but not the time of commencement of benefits) of the Executive under the Retirement and Savings Program and the Company's retiree medical and life insurance benefits, the Executive shall be considered to have remained employed until two and a half (2.5) years after the Date of Termination and to have retired on the last day of such period. An Executive's annual earnings under the Retirement and Savings Program shall include all annual incentive bonuses and be calculated as if the Executive remained an employee for two and a half (2.5) 10 additional years at the level of the Executive's Annual Base Salary and Annual Bonus; (iv) notwithstanding anything to the contrary contained in any other agreement, with respect to all equity awards held by the Executive on the Date of Termination, all rights that have not previously vested relating to all stock options, restricted stock units and restricted stock awards shall immediately vest and all restrictions shall be waived, the Executive shall be entitled to payment of any restricted stock units and the Executive shall have the full term of the options to exercise all outstanding options; provided, however, that upon acceleration of vesting, any stock options granted prior to the Effective Date of this Agreement shall remain exercisable for the period of time as set forth under the plan or agreement pursuant to which such stock option was granted; (v) to the extent the Date of Termination is after the Company's fiscal year end, but before the determination of a Long Term Incentive Plan payout (or equivalent replacement plan), the Executive shall at the same time as previously scheduled, receive the full target Long Term Incentive Plan (or equivalent replacement plan) award to which he is then entitled based upon the results for the prior fiscal year. In addition, the Executive shall receive a lump sum payment within five (5) days following the Revocation Date, equal to the full target of the Long Term Incentive Plan award for the year of termination (if the Long Term Incentive Plan program is in place) or if the Long Term Incentive Plan program is not in place, the full target value of an equivalent replacement plan value (which shall be no less than the Executive's full Long Term Incentive Plan's target value for the year prior to the year of the Change in Control). In the event the equity to be issued under the Long Term Incentive Plan program no longer exists at the Date of Termination, the Executive's stock options shall be converted as provided for all other outstanding vested options held by option holders of the Company that existed prior to the Change in Control and the restricted stock units and restricted stock shall be converted as provided for other vested shares of the Company that existed prior to the Change in Control. For all equity awards granted under this Paragraph after the Effective Date, all rights that have not previously vested relating to all stock options, restricted stock units and restricted stock awards shall immediately vest and all restrictions shall be waived and the Executive shall have the full term of the options to exercise all outstanding options; (vi) to the extent accrued but not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or that the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company. 11 (e) In the event that any payment(s), benefit(s) or other entitlement(s) received or to be received by the Executive in connection with a Change in Control of the Company as defined in Paragraph 6(a) or it is determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement but determined without regard to any additional payments required under this Paragraph 6(e) (a "Payment")), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any comparable federal, state or local excise tax (such excise tax, together with any interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in such an amount that after the payment of all taxes (including, without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment and on the Gross-Up Payment, the Executive shall retain an amount equal to the Payment minus all applicable taxes other than the Excise Tax on the Payment; provided, however, that the Executive will be entitled to receive a Gross-Up Payment only if the amount of a parachute payment as defined in Section 280G(b)(2) of the Code exceeds the sum of (A) $50,000, plus (B) 2.99 times the Executive's base amount as defined in Section 280G(b)(3) of the Code, and provided further, that if the Executive is not entitled to receive a Gross-Up Payment, the Executive will receive the greatest amount of total Payments that would not include any excess parachute payments as defined in Section 280G(b)(1) of the Code. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on any Payment and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment, and shall be liable for any loss of tax deduction caused by the Gross-Up Payment. (f) All determinations required to be made under Paragraph 6(e), including, without limitation, whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by any nationally recognized accounting firm, which firm must be acceptable to the Executive (the "Accounting Firm"). The Company shall cause the Accounting Firm to provide detailed supporting calculations to the Company and the Executive within fifteen (15) business days after notice is given by the Executive to the Company that there has been a Payment, or such earlier time as is requested by the Company. Within five (5) business days after said notice is given to the Company, the Company shall instruct the Accounting Firm to timely provide the data required by this Paragraph 6 to the Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment as determined pursuant to this Paragraph 6, shall be paid by the Company to the Internal Revenue Service and/or other appropriate taxing authority on the Executive's behalf within five (5) days after receipt of the Accounting Firm's determination. The Accounting Firm shall make all determinations under the tax standard of "more likely than not." The Accounting Firm shall furnish the Executive with a written opinion that failure to disclose or report the 12 Excise Tax on the Executive's federal income tax return will not constitute a substantial understatement of tax or be reasonably likely to result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payment will not have been made by the Company that should have been made ("Underpayment") or that the Gross-Up Payment was made that should not have been made ("Overpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and the Executive hereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Internal Revenue Service or other appropriate taxing authority on the Executive's behalf or, if such Underpayment has been previously paid by the Executive, to the Executive. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be due and payable within ninety (90) days after written demand to the Executive by the Company; provided, however that the Executive shall have no duty or obligation whatsoever to repay said amount unless the Executive's receipt of the Overpayment, or any portion thereof, is includible in the Executive's income and the Executive's repayment of same is not deductible by the Executive for federal and state income tax purposes. (g) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service or state or local taxing authority, that, if successful, would result in any Excise Tax or an Underpayment ("Claim"). Such notice shall be given as soon as practicable but no later than fifteen (15) business days after the Executive is informed in writing of the Claim and shall apprise the Company of the nature of the Claim, the administrative or judicial appeal period, and the date on which any payment of the Claim must be paid. The Executive shall not pay any portion of the Claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any amount under the Claim is due). If the Company notifies the Executive in writing prior to the expiration of such thirty (30) day period that it desires to contest the Claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to the Claim; (B) take such action in connection with contesting the Claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation concerning the Claim by an attorney selected by the Company who is reasonably acceptable to the Executive; and 13 (C) cooperate with the Company in good faith in order to effectively contest the Claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, without limitation, additional interest and penalties, attorneys' fees and costs) incurred in such contests and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed as a result of such representation. Without limitation upon the foregoing provisions of this Paragraph 6(g), except as provided below, the Company shall control all proceedings concerning such contest and, at its sole option, may pursue or forego any and all administrative appeal, proceedings, hearings and conferences with the taxing authority pertaining to the Claim. At the written request of the Company and upon payment to the Executive of an amount at least equal to the Claim plus any additional amount necessary to obtain the jurisdiction of the appropriate tribunal and/or court ("Additional Sum"), the Executive shall pay same and sue for a refund. The Executive agrees to prosecute any contest of a Claim to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company requests the Executive to pay the Claim and sue for interest-free basis, the Company shall indemnify and hold the Executive harmless on an after-tax basis, from any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed on such advance or for any imputed income on such advance. Any extension of the statute of limitations relating to assessment of any Excise Tax for the taxable year of the Executive which is the subject of the Claim shall be limited solely to the Claim. Furthermore, the Company's control of the contest shall be limited to issues for which a Gross-Up Payment would be payable hereunder. The Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (h) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 6(g), the Executive receives any refund of a Claim and/or any Additional Sum, the Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 6(g), a determination is made that the Executive shall not be entitled to any refund of the Claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund of a Claim prior to the expiration of thirty (30) days after such determination, then the portion of such advance attributable to a Claim shall be forgiven and shall not be required to be repaid. The amount of such advance attributable to a Claim shall offset, to the extent thereof, the amount of the Underpayment required to be paid by the Company to the Executive. 14 (i) If, after the advance of an Additional Sum by the Company, there is a "Final Determination" (as defined below) made by the taxing authority that the Executive is not entitled to any refund of such Additional Sum, or any portion thereof, then such nonrefundable amount shall be repaid to the Company by the Executive within thirty (30) days after the Executive receives notice of such Final Determination. A "Final Determination" shall occur when the period to contest or otherwise appeal any decision by an administrative tribunal or court of initial jurisdiction has been waived or the time for contesting or appealing same has expired. 7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or limit the Executive's continuing or future participation in any plan, program, policy or practice provided by the Company or any of its affiliated companies and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of its affiliated companies. Amounts that are vested benefits or that the Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company or any of its affiliated companies at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement. 8. FULL SETTLEMENT. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action that the Company or its affiliates may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not the Executive obtains other employment. The provisions of this Agreement, and any payment provided for hereunder, shall not reduce any amounts otherwise payable, or in any way diminish the Executive's existing rights, or rights which would accrue solely as a result of the passage of time, under any employee benefit plan, program or policy of the Company. 9. CONFIDENTIAL INFORMATION; NONCOMPETITION. (a) Noncompetition. In consideration of the benefits described herein, the Executive shall, contemporaneous with his execution of this Agreement, execute the Agreement Relating to Confidential Information, Intellectual Property and Additional Terms set forth 15 on Exhibit A hereto and the Executive agrees to the modification of the eighteen (18) month terms set forth in the Paragraphs 1, 4, 5, 6 and 7 of Exhibit A to two (2) years after Executive's Date of Termination. This Agreement shall not be effective unless and until execution of the agreement attached as Exhibit A has occurred. (b) Injunctive Relief. The Executive agrees that it would be difficult to measure any damages caused to the Company that might result from any breach by the Executive of the provisions of this Paragraph 9 and Exhibit A, and that in any event money damages would be an inadequate remedy for any such breach. Accordingly, the Executive agrees that in the case of breach, or alleged breach, of such provisions, the Company shall be entitled, in addition to all other remedies that it may have, to seek an injunction or other appropriate equitable relief to restrain any such breach without showing or proving any actual damage to the Company. 10. SUCCESSORS. (a) The Company will require any successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory to the Executive, expressly, absolutely and unconditionally to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or assignment had taken place. As used in this Agreement, "Company" shall mean the Company as hereinbefore defined and any successor or assign to its business and/or assets as aforesaid which executes and delivers the agreement provided for in this Paragraph 10 or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. If at any time during the term of this Agreement the Executive is employed by any corporation a majority of the voting securities of which is then owned by the Company, "Company" as used in Paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 hereof shall in addition include such corporation. In such event, the Company agrees that it shall pay or shall cause such corporation to pay any amounts owed to the Executive pursuant to this Agreement. (b) This Agreement shall inure to the benefit of and be enforceable by the Executive's personal and legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts are still payable to him hereunder, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the Executive's devisee, legatee, or other designee or, if there be no such designee, to the Executive's estate. 11. INDEMNIFICATION. Both during the Employment Period and after termination of the Executive's employment for any reason, the Company, or any subsidiary or successor of the Company of which 16 the Executive is an officer or member of the board of directors, shall indemnify the Executive to the fullest extent required or permitted by its Articles of Incorporation, bylaws and applicable law and to the same extent as any indemnification agreement provided to the board of directors of the Company. 12. MISCELLANEOUS. (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement which specifically references this Agreement and is executed by the parties hereto or their respective successors and legal representatives. (b) Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: IF TO THE EXECUTIVE: Kevin P. Clark 66 High Ridge Road Boxford, MA 01921 IF TO THE COMPANY: Attention: General Counsel Fisher Scientific International Inc. Liberty Lane Hampton, NH 03842 or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee. (c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. (d) Withholding. The Company may withhold from any amounts payable under this Agreement such Federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation. 17 (e) Waiver. The Executive's or the Company's failure to insist upon strict compliance with any provision hereof or any other provision of this Agreement or the failure to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason as defined under Paragraphs 4(c) and 6(b), shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement. (f) Code Section 409A. This Agreement is intended to comply with the provisions of Section 409A of the Code in such a way that the Executive will not be subject to taxation in advance of the related distribution, excise taxes or underpayments, penalties as a result of the timing or form of the payments to the Executive. Notwithstanding anything to the contrary contained herein, if the Executive is a Specified Employee (as defined in Section 409A of the Code) at the time he would otherwise be entitled to receive any specific payment hereunder, no distributions shall be made with respect to that specific payment until the earliest date permitted by Section 409A(a)(2) of the Code. All other payments which do not result in any additional payments, liability or penalties shall be made as specified. To the extent any payment is delayed, interest will accrue at the rate of the United States five-year Treasury rate plus 2 percent on such delayed payment and be paid to the Executive at the same time as the delayed payment is made. 13. ARBITRATION OF DISPUTES. Any controversy or claim arising between the Executive and the Company including, without limitation, any claims, demands or causes of action alleging wrongful discharge; unlawful discrimination based on sex, age, race, national origin, disability, religion or other unlawful basis; breach of contract; or any claims seeking damages under any federal, state or local law, rule, regulation or common law theory; but excluding any claims by the Executive for worker's compensation or unemployment compensation, and excluding any claims by the Company for injunctive relief (for instance, for breach of confidentiality, breach of a covenant not to compete, violation of trade secrets, or unfair competition), shall be resolved by final and binding arbitration. The Executive voluntarily waives any right to submit claims to a judge or jury in either state or federal court. The arbitration shall be held in Hampton, New Hampshire, or elsewhere by mutual agreement. The selection of the arbitrator and procedure shall be governed by the Employment Arbitration Rules of the American Arbitration Association, as amended. The arbitrator shall be a lawyer with expertise in negotiating and drafting executive agreements on behalf of both executives and public corporations. The arbitrator shall apply the applicable substantive law to any claim; for any state law claim or damages issues, the law of New Hampshire shall govern. Upon the Executive's request, a copy of the above referenced Employment Arbitraton Rules of the American Arbitration Association, as amended, will be provided to the Executive. Any court having jurisdiction may enter judgment upon an award rendered by arbitration. The Company and the Executive agree that in the event the Executive is the prevailing party in any arbitration, the Executive shall be awarded his 18 reasonable attorney's fees and costs to the extent provided by law. The Company will pay the cost normally associated with the arbitration, including the arbitrator's fee and any fee for a hearing facility. Notwithstanding anything contained in this paragraph, the Company shall be free to pursue injunctive relief against the Executive for violation of this Paragraph 13 of this Agreement and/or Exhibit A. IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and, pursuant to the authorization from the Compensation Committee of the Board of Directors, the Company has caused this Agreement to be executed in its name on its behalf, all as of the day and year first above written. Fisher Scientific International Inc. Executive By: /s/ Paul M. Meister /s/ Kevin P. Clark -------------------------------- ---------------------------------- Paul M. Meister Kevin P. Clark Exhibit A: Agreement relating to Confidential Information, Intellectual Property and Additional Terms. 19 EX-31.01 9 b55556fsexv31w01.txt EX-31.01 CERTIFICATION PURSUANT TO SECTION 302 OF CEO EXHIBIT 31.01 CERTIFICATION I, Paul M. Montrone, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Fisher Scientific International Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: August 4, 2005 By: /s/ Paul M. Montrone ------------------------------------ Paul M. Montrone Chief Executive Officer Fisher Scientific International Inc. EX-31.02 10 b55556fsexv31w02.txt EX-31.02 CERTIFICATION PURSUANT TO SECTION 302 OF CFO EXHIBIT 31.02 CERTIFICATION I, Kevin P. Clark, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Fisher Scientific International Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: August 4, 2005 By: /s/ Kevin P. Clark ------------------------------------ Kevin P. Clark Chief Financial Officer Fisher Scientific International Inc. EX-32.01 11 b55556fsexv32w01.txt EX-32.01 SECTION 906 CERTIFICATION OF CEO EXHIBIT 32.01 CERTIFICATION PURSUANT TO 18 UNITED STATES CODE SS. 1350 The undersigned hereby certifies that the Quarterly Report on Form 10-Q for the Second Quarter ended June 30, 2005 of Fisher Scientific International Inc. (the "Company") filed with the Securities and Exchange Commission on the date hereof fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and that the information contained in such report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ Paul M. Montrone -------------------------------- Paul M. Montrone Chief Executive Officer Date: August 4, 2005 EX-32.02 12 b55556fsexv32w02.txt EX-32.02 SECTION 906 CERTIFICATION OF CFO EXHIBIT 32.02 CERTIFICATION PURSUANT TO 18 UNITED STATES CODE SS. 1350 The undersigned hereby certifies that the Quarterly Report on Form 10-Q for the Second Quarter ended June 30, 2005 of Fisher Scientific International Inc. (the "Company") filed with the Securities and Exchange Commission on the date hereof fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and that the information contained in such report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ Kevin P. Clark ----------------------------- Kevin P. Clark Chief Financial Officer Date: August 4, 2005 -----END PRIVACY-ENHANCED MESSAGE-----


(Mark One)
þ		QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
		For the quarterly period ended June 30, 2005
or
o		TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
		For the transition period from to .


Delaware		02-0451017
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

Liberty Lane, Hampton, New Hampshire (Address of principal executive offices)		03842 (Zip Code)


			Page No.

Part I	—	FINANCIAL INFORMATION:
Item 1	—	Financial Statements:
		Consolidated Statement of Operations — Three and Six Months Ended June 30, 2005 and 2004		2
		Consolidated Balance Sheet — June 30, 2005 and December 31, 2004		3
		Consolidated Statement of Cash Flows — Six Months Ended June 30, 2005 and 2004		4
		Consolidated Statement of Changes in Stockholders’ Equity — Six Months Ended June 30, 2005		5
		Notes to Consolidated Financial Statements		6
Item 2	—	Management’s Discussion and Analysis of Financial Condition and Results of Operations		18
Item 3	—	Quantitative and Qualitative Disclosures About Market Risk		25
Item 4	—	Controls and Procedures		26
Part II	—	OTHER INFORMATION:
Item 4	—	Submission of Matters to Security Holders		27
Item 5	—	Other Information		27
Item 6	—	Exhibits		28
SIGNATURE				29
EX-3.01 Restated Certificate of Incorporation
Ex-10.01 Form of Indemnification Agreement
Ex-10.02 Amendment to Montrone Employment Agreement
Ex-10.03 Amendment to Meister Employment Agreement
Ex-10.04 Second Amendment to Della Penta Employment Agreement
Ex-10.05 Amendment to Roellig Employment Agreement
Ex-10.06 Employment Agreement with Kevin P. Clark
EX-31.01 Certification pursuant to Section 302 of CEO
EX-31.02 Certification pursuant to Section 302 of CFO
EX-32.01 Section 906 Certification of CEO
EX-32.02 Section 906 Certification of CFO


		Three Months Ended				Six Months Ended
		June 30,				June 30,

		2005		2004		2005		2004

Net sales		$	1,391.3	$	1,048.6	$	2,742.5	$	2,051.7
Cost of sales			911.0		746.3		1,812.8		1,478.8
Selling, general and administrative expenses			307.7		218.3		613.0		422.3
Restructuring expense			5.0		—		13.3		—

Operating income			167.6		84.0		303.4		150.6
Interest expense			27.6		23.0		58.2		45.0
Other expense, net			28.7		0.9		27.7		0.3

Income from continuing operations before income taxes			111.3		60.1		217.5		105.3
Income tax provision			25.9		16.6		56.0		29.0

Income from continuing operations			85.4		43.5		161.5		76.3
Income from discontinued operations, including gain on disposal of $16.7, net of tax			16.0		1.2		16.9		3.0

Net income		$	101.4	$	44.7	$	178.4	$	79.3

Earnings per share:
Basic net income per common share:
	Income from continuing operations	$	0.71	$	0.68	$	1.34	$	1.19
	Income from discontinued operations		0.13		0.02		0.14		0.05

	Net income	$	0.84	$	0.70	$	1.48	$	1.24

Diluted net income per common share:
	Income from continuing operations	$	0.67	$	0.62	$	1.28	$	1.11
	Income from discontinued operations		0.13		0.02		0.13		0.04

	Net income	$	0.80	$	0.64	$	1.41	$	1.15

Weighted average common stock outstanding:
	Basic		121.0		64.2		120.3		63.9

	Diluted		127.0		69.9		126.5		69.2


				June 30,			December 31,
				2005			2004

				(Unaudited)
ASSETS
Current assets:
	Cash and cash equivalents			$	155.2		$	162.5
	Accounts receivable, net				691.5			632.8
	Inventories				612.7			622.4
	Other current assets				285.1			264.5
	Assets held for sale				—			94.2

		Total current assets			1,744.5			1,776.4
Property, plant and equipment, net					758.6			785.4
Goodwill					3,694.9			3,756.9
Intangible assets, net					1,529.0			1,565.4
Other assets					192.6			206.1

		Total assets		$	7,919.6		$	8,090.2


LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
	Short-term debt			$	37.6		$	39.4
	Accounts payable				479.7			468.5
	Accrued and other current liabilities				415.1			452.9
	Liabilities held for sale				—			8.9

		Total current liabilities			932.4			969.7
Long-term debt					1,984.1			2,309.2
Other long-term liabilities					936.8			941.3

		Total liabilities			3,853.3			4,220.2

Commitments and contingencies
Stockholders’ equity:
	Preferred stock ($0.01 par value; 15,000,000 shares authorized; none outstanding)				—			—
	Common stock ($0.01 par value; 500,000,000 shares authorized; 122,024,047 and 118,928,952 shares issued; 121,769,072 and 118,673,977 shares outstanding at June 30, 2005 and December 31, 2004, respectively)				1.1			1.1
	Capital in excess of par value				4,122.7			4,006.1
	Accumulated deficit				(81.7	)		(260.1	)
	Accumulated other comprehensive income				28.2			126.9
	Treasury stock, at cost (254,975 shares at June 30, 2005 and December 31, 2004)				(4.0	)		(4.0	)

		Total stockholders’ equity			4,066.3			3,870.0

			Total liabilities and stockholders’ equity	$	7,919.6		$	8,090.2

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						Capital in					Shares to						Accumulated			Treasury Stock,
		Common Stock				Excess of		Shares			be						Other			at Cost
						Par		Deposited			Distributed			Accumulated			Comprehensive
		Shares		Amount		Value		in Trust			from Trust			Deficit			Income			Shares		Amount			Total

Balance at January 1, 2005			118,928,952	$	1.1	$	4,006.1	$	(24.0	)	$	24.0		$	(260.1	)	$	126.9			254,975	$	(4.0	)	$	3,870.0
	Net income		—		—		—		—			—			178.4			—			—		—			178.4
	Foreign currency translation adjustment		—		—		—		—			—			—			(98.9	)		—		—			(98.9	)
	Unrealized investment losses, net of tax		—		—		—		—			—			—			(0.5	)		—		—			(0.5	)
	Unrealized gain on cash flow hedges, net of tax		—		—		—		—			—			—			0.7			—		—			0.7
	Proceeds from stock options		3,095,095		—		97.8		—			—			—			—			—		—			97.8
	Tax benefit from stock options		—		—		18.1		—			—			—			—			—		—			18.1
	Compensation expense		—		—		0.7		—			—			—			—			—		—			0.7
	Trust activity		—		—		—		5.6			(5.6	)		—			—			—		—			—

Balance at June 30, 2005			122,024,047	$	1.1	$	4,122.7	$	(18.4	)	$	18.4		$	(81.7	)	$	28.2			254,975	$	(4.0	)	$	4,066.3


	1. Scientific products and services segment provides products and services primarily to entities conducting scientific research, including drug discovery and drug development, quality and process control and basic research and development. This segment manufactures and distributes a broad range of biochemicals and bioreagents; organic and inorganic chemicals; sera; cell culture media; sterile liquid-handling systems; microbiology media and related products; scientific consumable products, instruments and equipment; safety and personal protection products; and other consumables and supplies. Additionally, this segment provides services to pharmaceutical and biotechnology companies engaged in clinical trials, including specialized packaging, over-encapsulation, labeling and distribution for phase III and phase IV clinical trials, as well as combinatorial chemistry, custom-chemical synthesis, supply-chain management and a number of other services.

	2. Healthcare products and services segment manufactures and distributes a wide array of diagnostic kits and reagents, equipment, instruments, medical devices and other consumable products to hospitals, group-purchasing organizations, clinical laboratories, reference laboratories, physicians’ offices and original equipment manufacturers located primarily in the United States. This segment also provides outsourced manufacturing services for diagnostic reagents, calibrators and controls to the healthcare and pharmaceutical industries.

	3. Laboratory workstations segment manufactures and sells laboratory workstations and fume hoods and provides lab-design services for pharmaceutical and biotechnology customers, colleges, universities and secondary schools, hospitals and reference labs.


		Three Months						Six Months
		Ended						Ended
		June 30,						June 30,

		2005			2004			2005			2004

Net income, as reported		$	101.4		$	44.7		$	178.4		$	79.3
Add: stock-based employee compensation included in net income, net of tax(a)			1.2			—			1.7			—
Deduct: stock-based compensation expense determined using fair value based method for all awards, net of tax			(6.9	)		(7.2	)		(11.8	)		(14.5	)

Net income, pro forma		$	95.7		$	37.5		$	168.3		$	64.8

Net income per common share
As reported:
	Basic	$	0.84		$	0.70		$	1.48		$	1.24

	Diluted	$	0.80		$	0.64		$	1.41		$	1.15

Pro forma:
	Basic	$	0.79		$	0.58		$	1.40		$	1.01

	Diluted	$	0.75		$	0.54		$	1.33		$	0.94


(a)	Stock-based compensation expense for the three and six month periods ended June 30, 2005 includes approximately $0.7 million of expense associated with the accelerated vesting of approximately 42,000 employee options in connection with the Company’s sale of Atos Medical Holding AB.


		(As of
		Divestiture		December 31,
		Date)		2004

Accounts receivable, net		$	4.7	$	3.8
Inventories			3.8		3.3
Other current assets			1.8		1.7
Property, plant, and equipment			3.1		3.2
Goodwill			75.8		75.8
Intangible assets			6.1		6.4

	Total assets	$	95.3	$	94.2

Accounts payable			1.9		1.7
Accrued and other current liabilities			5.3		5.2
Other liabilities			1.9		2.0

	Total liabilities	$	9.1	$	8.9


		Three Months Ended June 30,

								Other
								Postretirement
		Pension Benefits						Benefits

		2005			2004			2005			2004

Components of net periodic benefit (income) cost
Service cost		$	6.0		$	3.6		$	—		$	0.1
Interest cost			8.6			5.4			0.4			0.4
Expected return on plan assets			(9.7	)		(7.1	)		—			—
Amortization of unrecognized net (gain) loss			—			0.1			—			(0.4	)
Amortization of unrecognized prior service (benefit) cost			0.2			0.3			(0.3	)		(0.6	)
Recognized net actuarial (gain) loss			0.8			0.2			(0.5	)		—
Settlement/curtailment loss			1.1			0.4			—			—

	Net periodic benefit (income) cost	$	7.0		$	2.9		$	(0.4	)	$	(0.5	)


		Six Months Ended June 30,

								Other
								Postretirement
		Pension Benefits						Benefits

		2005			2004			2005			2004

Components of net periodic benefit (income) cost
Service cost		$	11.9		$	7.3		$	0.1		$	0.2
Interest cost			17.0			10.8			0.9			0.8
Expected return on plan assets			(19.5	)		(14.3	)		—			—
Amortization of unrecognized net (gain) loss			—			0.2			—			(0.9	)
Amortization of unrecognized prior service (benefit) cost			0.5			0.6			(0.7	)		(1.1	)
Recognized net actuarial (gain) loss			2.0			0.4			(0.9	)		—
Settlement/curtailment (gain) loss			1.5			0.8			—			—

	Net periodic benefit (income) cost	$	13.4		$	5.8		$	(0.6	)	$	(1.0	)


(a)	The weighted average amount of outstanding antidilutive common stock options and warrants excluded from the computation of diluted net income per common share for the three and six month periods ended June 30, 2005 was 1.3 million and 1.5 million respectively, and for the three and six month periods ended June 30, 2004 was 0.1 million and 0.5 million, respectively.


			Floating Rate		3.25% Convertible
	2.50% Convertible		Convertible Senior		Senior
	Senior Notes		Debentures		Subordinated Notes

Issuance amount (in millions)	$	300.0	$	344.6	$	330.0
Conversion price per share	$	47.46	$	59.09	$	80.40
Trigger price	$	56.96	$	76.82	$	96.48


	Total Potential Shares

			Floating Rate		3.25% Convertible		Potential
	2.50% Convertible		Convertible Senior		Senior		Share
Future Fisher Common Stock Price	Senior Notes		Debentures		Subordinated Notes		Increase

$ 47.46		—		—		—		—
$ 48.46		0.1		—		—		0.1
$ 59.09		1.2		—		—		1.2
$ 60.09		1.3		0.1		—		1.4
$ 80.40		2.6		1.5		—		4.1
$ 81.40		2.6		1.6		0.1		4.3
$ 90.00		3.0		2.0		0.4		5.4


Item 1 —	*Financial Statements*


Note 1 —	Nature of Operations


Note 2 —	Basis of Presentation


Note 3 —	Stock-Based Compensation


Item 2 —	*Management’s Discussion and Analysis of Financial Condition and Results of Operations*


		Three Months Ended June 30,

								Operating
								Income as
								a Percentage
		Operating Income						of Net Sales

		2005			2004			2005			2004

Scientific products and services		$	142.2		$	76.2			13.8	%		9.6	%
Healthcare products and services			41.6			13.7			12.8	%		6.2	%
Laboratory workstations			0.1			1.3			0.2	%		3.0	%
Eliminations			(0.2	)		—

	Segment subtotal		183.7			91.2			13.2	%		8.7	%
Other charges:
Restructuring expense			(5.0	)		—
Acquisition and integration costs			(8.1	)		(1.5	)
Inventory step-up			(3.0	)		(5.7	)

	Adjusted operating income	$	167.6		$	84.0			12.0	%		8.0	%


Item 3 —	*Quantitative and Qualitative Disclosures About Market Risk*


Item 4 —	*Submission of Matters to Security Holders.*


	Exhibit 3.01:	Restated Certificate of Incorporation of Fisher Scientific International Inc.

	Exhibit 10.01:	Form of Indemnification Agreement.

	Exhibit 10.02:	Amendment to Employment Agreement, dated as of August 2, 2005, between Fisher Scientific International Inc. and Paul M. Montrone.

	Exhibit 10.03:	Amendment to Employment Agreement, dated as of August 2, 2005, between Fisher Scientific International Inc. and Paul M. Meister.

	Exhibit 10.04:	Second Amendment to Employment Agreement, dated as of August 2, 2005, between Fisher Scientific International Inc. and David T. Della Penta.

	Exhibit 10.05:	Amendment to Employment Agreement, dated as of August 2, 2005, between Fisher Scientific International Inc. and Mark D. Roellig.

	Exhibit 10.06:	Employment Agreement, dated as of August 2, 2005, between Fisher Scientific International Inc. and Kevin P. Clark.

	Exhibit 31.01:	Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

	Exhibit 31.02:	Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.


	Exhibit 32.01:	Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

	Exhibit 32.02:	Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.


	Fisher Scientific International Inc.

	/s/ Kevin P. Clark

	Kevin P. Clark
	Vice President and Chief Financial Officer
	(Principal Financial and Accounting Officer)