[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP]
July 29, 2004
Fisher Scientific International Inc.
One Liberty Lane
Hampton, NH 03842
Re: Fisher Scientific International Inc.; Registration Statement
on Form S-4 (File No. 333-115780)
We are acting as special counsel to Fisher Scientific
International Inc., a Delaware corporation (the "Company"), in connection with
the preparation of the Registration Statement on Form S-4 (File No. 333-115780)
initially filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), on May 24,
2004 and amended by Amendment No. 1 thereto filed on June 1, 2004, Amendment No.
2 thereto filed on July 13, 2004, Amendment No. 3 thereto filed on July 27, 2004
and Amendment No. 4 thereto filed as of the date hereof (as so amended, the
"Registration Statement") relating to the proposed exchange offer by Apogent
Technologies Inc. ("Apogent") of up to $300,000,000 aggregate principal amount
of the 2.25% Convertible Senior Debentures due 2021 (the "New 2.25% Debentures")
of Apogent for an equal principal amount of the issued and outstanding 2.25%
Senior Convertible Contingent Debt Securities due 2021 (the "Old 2.25% CODES")
of Apogent (the "2.25% Exchange Offer"). The 2.25% Exchange Offer is subject to
consummation of the merger pursuant to which a wholly owned subsidiary of the
Company will merge into Apogent and Apogent will become a wholly-owned
subsidiary of the Company (the "Merger"). The New 2.25% Debentures will be
issued pursuant to an Indenture to be entered into by and among Apogent, the
Company and The Bank of New York, as trustee (the "2.25% Indenture"). Upon
consummation of the Merger, the New 2.25% Debentures will be convertible, upon
the occurrence of certain events, into shares of the Company's common stock, par
value $0.01 per share (the "Common Stock" and the shares into which the New
2.25% Debentures are initially convertible, the "Shares") in accordance with the
terms of the 2.25% Indenture. Upon the occurrence of certain events, the Company
will fully and unconditionally guarantee the full and prompt payment of
principal and interest (including contingent interest), if any, with respect to
the New 2.25% Debentures to the extent set forth in the 2.25% Indenture and the
form of guarantee included in the form of the New 2.25% Debentures (the "2.25%
Guarantee").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
Fisher Scientific International Inc.
July 29, 2004
Page 2
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of: (i) the
Registration Statement as filed with the Commission on May 24, 2004; (ii)
Amendment No. 1 to the Registration Statement as filed with the Commission on
June 1, 2004; (iii) Amendment No. 2 to the Registration Statement as filed with
the Commission on July 13, 2004; (iv) Amendment No. 3 to the Registration
Statement as filed with the Commission on July 27, 2004; (v) Amendment No. 4 to
the Registration Statement filed as of the date hereof; (vi) a specimen
certificate evidencing the Common Stock; (vii) the Amended and Restated
Certificate of Incorporation of the Company, as filed with and certified by the
Secretary of State of the State of Delaware; (viii) the By-Laws of the Company,
certified by the Secretary of the Company, as currently in effect; (ix) the form
of the 2.25% Indenture, filed as an exhibit to Amendment No. 2 to the
Registration Statement; (x) the form of 2.25% Guarantee, attached as an exhibit
to the form of 2.25% Indenture; and (xi) certain resolutions of the Board of
Directors of the Company adopted as of June 8, 2004 relating to the reservation
for and authorization of issuance of the Shares, the authorization of the
issuance of the 2.25% Guarantee and related matters. We also have examined
originals or copies, certified or otherwise identified to our satisfaction, of
such documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as facsimile, electronic, certified or photostatic
copies, and the authenticity of the originals of such copies. In making our
examination of executed documents or documents to be executed, we have assumed
that the parties thereto, other than the Company, had or will have the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and the execution and delivery by such parties of such documents and the
validity and binding effect thereof on such parties. As to any facts material to
the opinions expressed herein that we did not independently establish or verify,
we have relied upon oral or written statements and representations of officers
and other representatives of the Company and others.
Our opinions set forth herein are limited to Delaware
corporate law and the laws of the State of New York that, in our experience, are
applicable to securities of the type covered by the Registration Statement and,
to the extent that judicial or regulatory orders or decrees or consents,
approvals, licenses, authorizations, validations, filings, recordings or
registrations with governmental authorities are relevant, to those required
under such laws (all of the foregoing being referred to as "Opined on Law"). We
do not express any opinion with respect to the law of any jurisdiction other
than Opined on Law or as to the effect of any such non-opined-on law on the
opinions herein stated.
The opinions set forth below are subject to the following
qualifications, further assumptions and limitations:
Fisher Scientific International Inc.
July 29, 2004
Page 3
(a) the validity or enforcement of any agreements or
instruments may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law);
(b) we do not express any opinion as to the applicability or
effect of any fraudulent transfer, preference or similar law on either of the
2.25% Indenture or the 2.25% Guarantee or any transaction contemplated thereby;
and
(c) in rendering the opinion set forth below in paragraph 2,
we have assumed that (1) the certificates evidencing the Shares will be manually
signed by one of the authorized officers of the transfer agent and registrar for
the Shares and registered by such transfer agent and registrar and will conform
to the specimen certificate examined by us evidencing the Shares and (2) the
Conversion Price (as defined in the 2.25% Indenture) will be at least equal to
the par value of the Shares at the time of conversion.
Based upon and subject to the foregoing and the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. When (i) the Registration Statement has been declared
effective under the Securities Act, (ii) the New 2.25% Debentures have been duly
executed and authenticated in accordance with the terms of the 2.25% Indenture
and have been issued and delivered upon consummation of the 2.25% Exchange Offer
against receipt of the Old 2.25% CODES surrendered in exchange therefor in
accordance with the terms of the 2.25% Exchange Offer and (iii) the 2.25%
Guarantee has been executed and delivered by the Company in accordance with the
terms of the 2.25% Indenture, the 2.25% Guarantee will constitute a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms.
2. The Shares initially issuable upon conversion of the New
2.25% Debentures have been duly authorized by all necessary corporate action,
and when (i) the 2.25% Indenture has been duly executed and delivered and (ii)
the Shares have been issued and delivered upon conversion of the New 2.25%
Debentures in accordance with the terms of the 2.25% Indenture, the Shares will
be validly issued, fully paid and nonassessable.
In rendering the opinions set forth above, we have assumed
that the execution and delivery by the Company of the 2.25% Indenture and the
2.25% Guarantee and the performance by the Company of its obligations under the
2.25% Indenture and the 2.25% Guarantee thereunder do not and will not violate,
conflict with or constitute a default under any agreement or instrument to which
the Company or its properties are subject, except that we do not make this
assumption for those agreements and instruments which have been identified to us
by the Company as being material to it and which are
Fisher Scientific International Inc.
July 29, 2004
Page 4
listed in Part II of the Registration Statement or the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 2003, as amended by
Amendment No. 1 to such Annual Report, filed with the Commission on May 13,
2004.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. We also consent to the
reference to our firm under the heading "Legal Matters" in the prospectus
forming a part of the Registration Statement. In giving this consent, we do not
thereby admit that we are included in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission. This opinion is expressed as of the date hereof unless otherwise
expressly stated, and we disclaim any undertaking to advise you of any
subsequent changes in the facts stated or assumed herein or of any subsequent
changes in applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP