EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
FISHER SCIENTIFIC INTERNATIONAL INC.,
FOX MERGER CORPORATION
AND
APOGENT TECHNOLOGIES INC.
DATED AS OF MARCH 17, 2004
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
ARTICLE I THE MERGER..................................................................... 2
SECTION 1.1 The Merger............................................................... 2
SECTION 1.2 Closing.................................................................. 2
SECTION 1.3 Effective Time........................................................... 2
SECTION 1.4 Effects of the Merger.................................................... 2
SECTION 1.5 Organizational Documents of the Surviving Corporation.................... 2
SECTION 1.6 Directors and Officers of the Surviving Corporation...................... 3
SECTION 1.7 Alternative Structure.................................................... 3
ARTICLE II EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES............................... 3
SECTION 2.1 Effect on Capital Stock................................................. 3
SECTION 2.2 Exchange of Shares and Certificates...................................... 5
ARTICLE III REPRESENTATIONS AND WARRANTIES.............................................. 8
SECTION 3.1 Representations and Warranties of Apogent................................ 8
(a) Organization, Standing and Corporate Power;
Charter Documents; Subsidiaries......... 8
(b) Capital Structure.................................................. 9
(c) Authority; Board Approval; Voting Requirements; No Conflict;
Required Filings and Consents 11
(d) SEC Documents; Financial Statements............................... 14
(e) Information Supplied.............................................. 15
(f) Absence of Certain Changes or Events.............................. 16
(g) Compliance with Applicable Laws; Permits; Litigation.............. 16
(h) Labor and Other Employment Matters................................ 18
(i) Benefit Plans..................................................... 19
(j) Taxes............................................................. 22
(k) Interested Party Transactions..................................... 25
(l) Environmental Matters............................................. 25
(m) Intellectual Property............................................. 25
(n) State Takeover Statutes........................................... 26
(o) Brokers .......................................................... 27
(p) Opinion of Financial Advisor...................................... 27
(q) Material Contracts................................................ 27
(r) Real Property..................................................... 30
(s) Apogent Rights Agreement.......................................... 30
SECTION 3.2 Representations and Warranties of Fisher and Merger Sub................. 30
(a) Organization, Standing and Corporate Power; Charter
Documents; Subsidiaries........ 31
(b) Capital Structure................................................. 32
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(c) Authority; Board Approval; Voting Requirements; No Conflict;
Required Filings and Consents 34
(d) SEC Documents; Financial Statements............................... 36
(e) Information Supplied.............................................. 38
(f) Absence of Certain Changes or Events.............................. 39
(g) Compliance with Applicable Laws; Permits; Litigation.............. 39
(h) Labor and Other Employment Matters................................ 41
(i) Benefit Plans..................................................... 42
(j) Taxes............................................................. 44
(k) Interested Party Transactions..................................... 46
(l) Environmental Matters............................................. 46
(m) Intellectual Property............................................. 47
(n) State Takeover Statutes........................................... 48
(o) Brokers .......................................................... 48
(p) Opinion of Financial Advisor...................................... 48
(q) Material Contracts................................................ 48
(r) Real Property..................................................... 51
(s) Merger Sub Approval............................................... 52
ARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS.................................... 52
SECTION 4.1 Conduct of Business..................................................... 52
SECTION 4.2 No Solicitation......................................................... 59
ARTICLE V ADDITIONAL AGREEMENTS......................................................... 62
SECTION 5.1 Preparation of SEC Documents; Shareholders' Meetings.................... 62
SECTION 5.2 Accountant's Letters.................................................... 64
SECTION 5.3 Access to Information; Confidentiality.................................. 64
SECTION 5.4 Reasonable Efforts...................................................... 65
SECTION 5.5 Indemnification and Insurance........................................... 67
SECTION 5.6 Fees and Expenses....................................................... 68
SECTION 5.7 Public Announcements.................................................... 68
SECTION 5.8 Listing................................................................. 68
SECTION 5.9 Tax-Free Reorganization Treatment....................................... 68
SECTION 5.10 Conveyance Taxes........................................................ 68
SECTION 5.11 Equity Awards and Employee Benefits..................................... 69
SECTION 5.12 Fisher Corporate Governance............................................. 70
SECTION 5.13 Affiliate Legends....................................................... 71
SECTION 5.14 Notification of Certain Matters......................................... 71
SECTION 5.15 Section 16 Matters...................................................... 71
SECTION 5.16 Rights Plans; State Takeover Laws....................................... 72
SECTION 5.17 Reservation of Fisher Common Stock...................................... 72
ARTICLE VI CONDITIONS PRECEDENT......................................................... 72
SECTION 6.1 Conditions to Each Party's Obligation to Effect the Merger.............. 72
SECTION 6.2 Conditions to Obligations of Apogent.................................... 73
SECTION 6.3 Conditions to Obligations of Fisher and Merger Sub...................... 74
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ARTICLE VII TERMINATION, AMENDMENT AND WAIVER........................................... 75
SECTION 7.1 Termination............................................................. 75
SECTION 7.2 Effect of Termination................................................... 77
SECTION 7.3 Payments................................................................ 78
SECTION 7.4 Amendment............................................................... 79
SECTION 7.5 Extension; Waiver....................................................... 80
ARTICLE VIII GENERAL PROVISIONS......................................................... 80
SECTION 8.1 Nonsurvival of Representations and Warranties........................... 80
SECTION 8.2 Notices................................................................. 80
SECTION 8.3 Definitions............................................................. 81
SECTION 8.4 Terms Defined Elsewhere................................................. 84
SECTION 8.5 Interpretation.......................................................... 87
SECTION 8.6 Counterparts............................................................ 88
SECTION 8.7 Entire Agreement; No Third-Party Beneficiaries.......................... 88
SECTION 8.8 Governing Law........................................................... 88
SECTION 8.9 Assignment.............................................................. 88
SECTION 8.10 Consent to Jurisdiction................................................. 88
SECTION 8.11 Headings, etc........................................................... 89
SECTION 8.12 Severability............................................................ 89
SECTION 8.13 Failure or Indulgence Not Waiver; Remedies Cumulative................... 89
SECTION 8.14 Waiver of Jury Trial.................................................... 89
SECTION 8.15 Specific Performance.................................................... 89
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of March 17, 2004, by and among FISHER SCIENTIFIC INTERNATIONAL INC., a
Delaware corporation ("Fisher"), FOX MERGER CORPORATION, a Wisconsin corporation
and a direct wholly-owned subsidiary of Fisher ("Merger Sub"), and APOGENT
TECHNOLOGIES INC., a Wisconsin corporation ("Apogent").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Fisher, Merger Sub and
Apogent have deemed it advisable and fair to and in the best interests of their
respective corporations and stockholders or shareholders, as applicable, that
Fisher and Apogent engage in a business combination in order to advance their
respective long-term strategic business interests; and
WHEREAS, in furtherance thereof, the respective Boards of Directors of
Fisher, Merger Sub and Apogent have approved this Agreement and the merger of
Merger Sub with and into Apogent with Apogent continuing as the surviving
corporation (the "Merger"), upon the terms and subject to the conditions set
forth in this Agreement and in accordance with the provisions of the Wisconsin
Business Corporation Law (the "WBCL"); and
WHEREAS, the Board of Directors of Apogent has approved and has determined
to recommend to its shareholders the approval and adoption of this Agreement and
the Merger; and
WHEREAS, the Board of Directors of Fisher has approved, and has determined
to recommend to its stockholders approval of, the issuance of shares of Fisher
Common Stock (as defined in Section 2.1(a)) in connection with the Merger (the
"Stock Issuance"); and
WHEREAS, Fisher, as the sole shareholder of Merger Sub, has approved this
Agreement and the Merger; and
WHEREAS, for United States federal income tax purposes, it is intended
that the Merger shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and this
Agreement is intended to be, and is hereby, adopted as a plan of reorganization
within the meaning of Section 368 of the Code.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
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ARTICLE I
THE MERGER
SECTION 1.1 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the WBCL, at the Effective Time
(as defined in Section 1.3), Merger Sub shall be merged with and into Apogent,
the separate corporate existence of Merger Sub shall cease and Apogent shall
continue as the surviving corporation in the Merger (the "Surviving
Corporation") and shall succeed to and assume all the property, rights,
privileges, powers and franchises of Merger Sub in accordance with the WBCL.
SECTION 1.2 Closing. The closing of the Merger (the "Closing") shall take
place at 10:00 a.m., New York time, on a date to be specified by the parties,
which shall be no later than the second business day after satisfaction or
waiver of all of the conditions set forth in Article VI (other than delivery of
items to be delivered at the Closing and other than those conditions that by
their nature are to be satisfied at the Closing, it being understood that the
occurrence of the Closing shall remain subject to the delivery of such items and
the satisfaction or waiver of such conditions at the Closing) at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York
10036, unless another time, date or place is agreed to in writing by the parties
hereto. The date on which the Closing occurs is referred to herein as the
"Closing Date."
SECTION 1.3 Effective Time. Subject to the terms and conditions of this
Agreement, as soon as practicable on the Closing Date, the parties shall cause
the Merger to be consummated by filing articles of merger in such form as
required by, and executed in accordance with, the relevant provisions of the
WBCL (the "Articles of Merger") with the Department of Financial Institutions of
the State of Wisconsin (the "DFI") and shall make all other filings or
recordings required under the WBCL. The Merger shall become effective at such
time as the Articles of Merger are duly filed with the DFI, or at such
subsequent date or time as Fisher and Apogent shall agree and specify in the
Articles of Merger, which date shall be not more than 90 days after the date the
Articles of Merger are received for filing. The time at which the Merger becomes
effective is referred to herein as the "Effective Time."
SECTION 1.4 Effects of the Merger. At the Effective Time, the Merger shall
have the effects set forth in this Agreement and in the applicable provisions of
the WBCL.
SECTION 1.5 Organizational Documents of the Surviving Corporation. At the
Effective Time, the Apogent Charter (as defined in Section 3.1(a)(ii)) shall be
amended and restated in its entirety to be identical to the articles of
incorporation of Merger Sub, as in effect immediately prior to the Effective
Time and as set forth in Exhibit A, and shall thereafter be the articles of
incorporation of the Surviving Corporation, until amended in accordance with
Applicable Laws (as defined in Section 3.1(g)(ii)) and as provided in such
articles of incorporation; provided, however, that at the Effective Time,
Article I of the articles of incorporation of the Surviving Corporation shall be
amended and restated in its entirety to read as follows: "The name of the
corporation is Apogent Technologies Inc." At the Effective Time,
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the Apogent Bylaws (as defined in Section 3.1(a)(ii)) shall be amended and
restated in their entirety to be identical to the bylaws of Merger Sub, as in
effect immediately prior to the Effective Time, until thereafter amended in
accordance with Applicable Laws and as provided in such bylaws.
SECTION 1.6 Directors and Officers of the Surviving Corporation. The
directors of Merger Sub immediately prior to the Effective Time shall be the
directors of the Surviving Corporation, each to hold office in accordance with
the articles of incorporation and bylaws of the Surviving Corporation and
Applicable Laws. The officers of the Surviving Corporation shall be the officers
of Apogent immediately prior to the Effective Time, each to hold office in
accordance with the articles of incorporation and bylaws of the Surviving
Corporation and Applicable Laws.
SECTION 1.7 Alternative Structure. Apogent and Fisher may mutually agree
in writing to cause the "Merger" to be a merger of Apogent with and into Merger
Sub at the Effective Time, in which case, following the "Merger," the separate
corporate existence of Apogent will cease and Merger Sub shall continue as the
Surviving Corporation, at any time prior to receipt of both Apogent Shareholder
Approval (as defined in Section 3.1(c)(iii)) and Fisher Stockholder Approval, or
at any time thereafter if, with appropriate disclosure, any required further
approval of the revised structure is obtained from the shareholders of Apogent
and the stockholders of Fisher, as applicable; provided, however, that (a) any
such change to the structure of the Merger would not affect the qualification of
the Merger as a reorganization within the meaning of Section 368(a) of the Code,
(b) any such change to the structure of the Merger would not affect the proposed
accounting treatment for the Merger or the tax treatment to Fisher, Apogent or
their stockholders or shareholders, as applicable, or otherwise prejudice
Fisher, Apogent or their stockholders or shareholders, as applicable, or, with
respect to Section 5.5, materially prejudice any third party beneficiary
thereof, (c) any such change to the structure of the Merger would not delay the
consummation of the Merger or any of the other transactions contemplated hereby
in any respect and (d) any such change to the structure of the Merger would not
in any way affect the corporate governance structure of Fisher, Apogent or the
Surviving Corporation. Apogent and Fisher agree to consider in good faith the
request of the other party to revise the structure of the Merger from that set
forth herein and, upon mutual written agreement to revise the structure of the
Merger, shall, subject to the foregoing, take any action necessary to permit the
provisions of this Article I to be effective and shall make such other changes
that are necessary to be made to reflect the change in structure that has been
agreed.
ARTICLE II
EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES
SECTION 2.1 Effect on Capital Stock. Subject to the terms and conditions
of this Agreement, at the Effective Time, by virtue of the Merger and without
any action on the part of Fisher, Merger Sub, Apogent or the holders of any
shares of common stock, par value $0.01 per share, of Apogent, "Apogent Common
Stock"):
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(a) Conversion of Apogent Common Stock. Subject to Sections 2.1(e)
and 2.1(f), each share of Apogent Common Stock issued and outstanding
immediately prior to the Effective Time, other than any shares of Apogent Common
Stock to be canceled pursuant to Section 2.1(c), shall be automatically
converted into the right to receive .56 (the "Exchange Ratio") fully paid and
nonassessable shares of common stock, par value $0.01 per share ("Fisher Common
Stock"), of Fisher (the "Merger Consideration"). As a result of the Merger, at
the Effective Time, each holder of a Certificate (as defined in Section 2.2(b))
shall cease to have any rights with respect thereto, except the right to receive
the Merger Consideration payable in respect of the shares of Apogent Common
Stock represented by such Certificate immediately prior to the Effective Time,
any cash in lieu of fractional shares payable pursuant to Section 2.1(e) and any
dividends or other distributions payable pursuant to Section 2.2(c), all to be
issued or paid, without interest, in consideration therefor upon the surrender
of such Certificate in accordance with Section 2.2(b) (or, in the case of a
lost, stolen or destroyed Certificate, Section 2.2(i)).
(b) Capital Stock of Merger Sub. Each share of common stock, par
value $0.01 per share, of Merger Sub issued and outstanding immediately prior to
the Effective Time shall be converted into one fully paid and nonassessable
share of common stock, par value $0.01 per share, of the Surviving Corporation.
(c) Cancellation of Treasury Shares. Each share of Apogent Common
Stock held in the treasury of Apogent, if any, shall automatically be
extinguished without any conversion, and no consideration shall be delivered in
respect thereof or any shares of Apogent Common Stock owned, beneficially or of
record, by any Subsidiary of Apogent.
(d) Apogent Options and Employee Stock Purchase Plans. At the
Effective Time, (i) all options to purchase Apogent Common Stock (each, an
"Apogent Option") and all Apogent Restricted Stock Units (as defined in Section
5.11(a)(ii)) issued and outstanding under each Apogent Stock Plan (as defined in
Section 3.1(b)(i)) shall vest (to the extent presently unvested) and, in the
case of Apogent Restricted Stock Units, become nonforfeitable and, in the case
of Apogent Options, become exercisable and be assumed by Fisher in accordance
with Section 5.11(a) and (ii) all rights outstanding under Apogent's Employee
Stock Purchase Plan (the "Apogent Purchase Plan"), shall be treated as set forth
in Section 5.11(b).
(e) Fractional Shares. No fraction of a share of Fisher Common Stock
will be issued by virtue of the Merger, but in lieu thereof each holder of
shares of Apogent Common Stock who would otherwise be entitled to a fraction of
a share of Fisher Common Stock (after aggregating all shares of Fisher Common
Stock that otherwise would be received by such holder) shall, upon surrender of
such holder's Certificate or Certificates, receive from Fisher an amount of cash
(rounded to the nearest whole cent), without interest, equal to the product of:
(i) the fractional share interest (after aggregating all shares of Fisher Common
Stock that would otherwise be received by such holder) which such holder would
otherwise receive, multiplied by (ii) the closing price of one share of Fisher
Common Stock on the New York Stock Exchange ("NYSE") Composite Transactions Tape
ending on the trading day one day prior to the Effective Time.
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(f) Adjustments to Exchange Ratio. The Exchange Ratio and the Merger
Consideration shall be adjusted to reflect fully the appropriate effect of any
stock split, split-up, reverse stock split, stock dividend (including any
dividend or distribution of securities convertible into Fisher Common Stock or
Apogent Common Stock), reorganization, recapitalization, reclassification or
other like change with respect to Fisher Common Stock or Apogent Common Stock
having a record date occurring on or after the date hereof and prior to the
Effective Time.
SECTION 2.2 Exchange of Shares and Certificates.
(a) Exchange Agent. At or prior to the Effective Time, Fisher shall
engage an institution reasonably satisfactory to Apogent to act as exchange
agent in connection with the Merger (the "Exchange Agent"), pursuant to an
agreement reasonably satisfactory to Apogent. At the Effective Time, Fisher
shall deposit with the Exchange Agent, in trust for the benefit of the holders
of shares of Apogent Common Stock immediately prior to the Effective Time,
certificates representing the shares of Fisher Common Stock issuable pursuant to
Section 2.1(a). In addition, Fisher shall make available by depositing with the
Exchange Agent, as necessary from time to time after the Effective Time, cash in
an amount sufficient to make the payments in lieu of fractional shares pursuant
to Section 2.1(e) and any dividends or distributions to which holders of shares
of Apogent Common Stock may be entitled pursuant to Section 2.2(c). All cash and
certificates representing shares of Fisher Common Stock deposited with the
Exchange Agent shall hereinafter be referred to as the "Exchange Fund."
(b) Exchange Procedures. Promptly after the Effective Time, and in
any event within 10 business days after the Effective Time, Fisher shall cause
the Exchange Agent to mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding shares of Apogent Common Stock (the "Certificates"), which at the
Effective Time were converted into the right to receive the Merger Consideration
pursuant to Section 2.1 hereof, (i) a letter of transmittal (which shall specify
that delivery shall be effected, and that risk of loss and title to the
Certificates shall pass only upon delivery of the Certificates to the Exchange
Agent and which shall be in form and substance reasonably satisfactory to Fisher
and Apogent) and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for certificates representing whole shares of Fisher
Common Stock, cash in lieu of any fractional shares pursuant to Section 2.1(e)
and any dividends or other distributions payable pursuant to Section 2.2(c).
Upon surrender of Certificates for cancellation to the Exchange Agent, together
with such letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, and such other documents as may
reasonably be required by the Exchange Agent, the holder of such Certificates
shall be entitled to receive in exchange therefor a certificate representing
that number of whole shares of Fisher Common Stock (after taking into account
all Certificates surrendered by such holder) to which such holder is entitled
pursuant to Section 2.1 (which shall be in uncertificated book entry form unless
a physical certificate is requested), payment by cash or check in lieu of
fractional shares which such holder is entitled to receive pursuant to Section
2.1(e) and any dividends or distributions payable pursuant to Section 2.2(c),
and the Certificates so surrendered shall forthwith be canceled. In the event of
a transfer of ownership of shares of Apogent Common Stock which is not
registered in the transfer records of Apogent, a certificate
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representing the proper number of shares of Fisher Common Stock may be issued to
a Person (as defined in Section 8.3(n)) other than the Person in whose name the
Certificate so surrendered is registered, if such Certificate shall be properly
endorsed or otherwise be in proper form for transfer and the Person requesting
such issuance shall pay any transfer or other taxes required by reason of the
issuance of shares of Fisher Common Stock to a Person other than the registered
holder of such Certificate or establish to the reasonable satisfaction of Fisher
that such tax has been paid or is not applicable. Until surrendered as
contemplated by this Section 2.2(b), each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive the Merger
Consideration (and any amounts to be paid pursuant to Section 2.1(e) or Section
2.2(c)) upon such surrender. No interest shall be paid or shall accrue on any
amount payable pursuant to Section 2.1(e) or Section 2.2(c).
(c) Distributions with Respect to Unexchanged Shares. No dividends
or other distributions with respect to shares of Fisher Common Stock with a
record date after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the shares of Fisher Common Stock
represented thereby, and no cash payment in lieu of fractional shares shall be
paid to any such holder pursuant to Section 2.1(e) hereof, until such
Certificate has been surrendered in accordance with this Article II. Subject to
Applicable Laws, following surrender of any such Certificate, there shall be
paid to the recordholder thereof, without interest, (i) promptly after such
surrender, the number of whole shares of Fisher Common Stock issuable in
exchange therefor pursuant to this Article II, together with any cash payable in
lieu of a fractional share of Fisher Common Stock to which such holder is
entitled pursuant to Section 2.1(e) and the amount of dividends or other
distributions with a record date after the Effective Time theretofore paid with
respect to such whole shares of Fisher Common Stock and (ii) at the appropriate
payment date, the amount of dividends or other distributions with a record date
after the Effective Time and a payment date subsequent to such surrender payable
with respect to such whole shares of Fisher Common Stock.
(d) No Further Ownership Rights in Apogent Common Stock. All shares
of Fisher Common Stock issued upon the surrender for exchange of Certificates in
accordance with the terms of this Article II and any cash paid pursuant to
Section 2.1(e) or Section 2.2(c) shall be deemed to have been issued (or paid)
in full satisfaction of all rights pertaining to the shares of Apogent Common
Stock previously represented by such Certificates. After the Effective Time, the
stock transfer books of Apogent shall be closed and there shall be no further
registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of Apogent Common Stock which were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation or the Exchange Agent
for any reason, they shall be canceled and exchanged as provided in this Article
II.
(e) Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed to the holders of Certificates one year after the
Effective Time shall be delivered to Fisher, upon demand, and any holders of
Certificates who have not theretofore complied with this Article II shall
thereafter look only to Fisher for payment of their claim for the Merger
Consideration, any cash in lieu of fractional shares of Fisher Common Stock
pursuant to Section 2.1(e) and any dividends or distributions pursuant to
Section 2.2(c).
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(f) No Liability. None of Fisher, Merger Sub, Apogent or the
Exchange Agent or any of their respective directors, officers, employees and
agents shall be liable to any Person in respect of any shares of Fisher Common
Stock (or dividends or distributions with respect thereto) or cash from the
Exchange Fund delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law. If any Certificate shall not have
been surrendered prior to seven years after the Effective Time, or immediately
prior to such earlier date on which any shares of Fisher Common Stock, any cash
in lieu of fractional shares of Fisher Common Stock or any dividends or
distributions with respect to Fisher Common Stock issuable in respect of such
Certificate would otherwise escheat to or become the property of any
Governmental Entity (as defined in Section 3.1(c)(v)), any such shares, cash,
dividends or distributions in respect of such Certificate shall, to the extent
permitted by Applicable Laws, become the property of the Surviving Corporation,
free and clear of all claims or interests of any Person previously entitled
thereto.
(g) Investment of Exchange Fund. The Exchange Agent shall invest any
cash included in the Exchange Fund as directed by Fisher on a daily basis,
provided that no such investment or loss thereon shall affect the amounts
payable to former shareholders of Apogent after the Effective Time pursuant to
this Article II. Any interest and other income resulting from such investment
shall become a part of the Exchange Fund, and any amounts in excess of the
amounts payable pursuant to this Article II shall promptly be paid to Fisher.
(h) Withholding Rights. Fisher and the Exchange Agent shall be
entitled to deduct and withhold from any consideration payable pursuant to this
Agreement to any Person who was a holder of Apogent Common Stock immediately
prior to the Effective Time such amounts as Fisher or the Exchange Agent may be
required to deduct and withhold with respect to the making of such payment under
the Code or any other provision of federal, state, local or foreign tax law. To
the extent that amounts are so withheld by Fisher or the Exchange Agent, such
withheld amounts shall be treated for all purposes of this Agreement as having
been paid to the Person to whom such consideration would otherwise have been
paid.
(i) Lost, Stolen or Destroyed Certificates. In the event any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, such shares of Fisher
Common Stock as may be required pursuant to Section 2.1(a), cash for fractional
shares pursuant to Section 2.1(e) and any dividends or distributions payable
pursuant to Section 2.2(c); provided, however, that Fisher may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed Certificates to deliver an agreement of
indemnification in form reasonably satisfactory to Fisher, or a bond in such sum
as Fisher may reasonably direct as indemnity, against any claim that may be made
against Fisher or the Exchange Agent in respect of the Certificates alleged to
have been lost, stolen or destroyed.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Apogent. Except as set forth
in (x) the disclosure schedule dated as of the date of this Agreement and
executed and delivered by Apogent to Fisher concurrently with or prior to the
execution and delivery by Apogent of this Agreement (the "Apogent Disclosure
Schedule") and (y) the Apogent SEC Documents filed prior to the date hereof (as
defined in Section 3.1(d)(i)) , Apogent represents and warrants to Fisher and
Merger Sub as set forth in this Article III. Each disclosure set forth in the
Apogent Disclosure Schedule, and any other information included in the Apogent
Disclosure Schedule, is identified by reference to, or has been grouped under a
heading referring to, a specific individual subsection of this Agreement and
shall be deemed to be disclosed solely for purposes of, and shall qualify and be
treated as an exception to, such subsection, except to the extent that
disclosure in one subsection of the Apogent Disclosure Schedule is specifically
referred to in another subsection of the Apogent Disclosure Schedule by
appropriate cross-reference and except to the extent that the relevance of a
disclosure in one subsection of the Apogent Disclosure Schedule to another
subsection of the Apogent Disclosure Schedule is reasonably apparent. The
parties hereby agree that no reference to or disclosure of any item or other
matter in the Apogent Disclosure Schedule shall be construed as an admission or
indication that (1) such item or other matter is material, (2) such item or
other matter is required to be referred to or disclosed in the Apogent
Disclosure Schedule or (3) any breach or violation of Applicable Laws or any
Contract (as defined in Section 8.3(d)) exists or has actually occurred.
(a) Organization, Standing and Corporate Power; Charter Documents;
Subsidiaries.
(i) Organization, Standing and Corporate Power. Apogent and
each of its Subsidiaries (as defined in Section 8.3(o)) is a corporation or
other legal entity duly organized, validly existing and in good standing (with
respect to jurisdictions which recognize such concept) under the laws of the
jurisdiction in which it is incorporated or otherwise organized and has the
requisite corporate (or similar) power and authority and all necessary
government approvals to own, lease and operate its properties and to carry on
its business as currently conducted, except for those jurisdictions in which the
failure to have such power, authority or government approvals and to be so
organized, existing or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect (as defined
in Section 8.3(k)) on Apogent and its Subsidiaries, taken as a whole. Each of
Apogent and each of its Subsidiaries is duly qualified or licensed to do
business and is in good standing (with respect to jurisdictions which recognize
such concept) in each jurisdiction in which the nature or conduct of its
business or the ownership, leasing or operation of its properties makes such
qualification, licensing or good standing necessary, except for those
jurisdictions where the failure to be so qualified or licensed or to be in good
standing would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect on Apogent and its Subsidiaries, taken as a
whole.
8
(ii) Charter Documents. Apogent has delivered or made
available to Fisher prior to the execution of this Agreement complete and
correct copies of (A) the Restated Articles of Incorporation of Apogent
(including any certificates of designation), as amended and currently in effect
(the "Apogent Charter"), and the bylaws of Apogent, as amended and currently in
effect (the "Apogent Bylaws," and, together with the Apogent Charter, the
"Apogent Organizational Documents") and (B) the articles or certificate of
incorporation and bylaws or like organizational documents of each of the Apogent
Significant Subsidiaries (as defined in Section 3.1(a)(iii)), as amended and
currently in effect (collectively, the "Apogent Subsidiary Organizational
Documents"), and each such instrument is in full force and effect. Apogent is
not in material violation of the Apogent Organizational Documents and no Apogent
Significant Subsidiary (as defined in Section 3.1(a)(iii)) is in material
violation of its Apogent Subsidiary Organizational Documents.
(iii) Subsidiaries. Section 3.1(a)(iii) of the Apogent
Disclosure Schedule lists all the Subsidiaries of Apogent which, as of the date
of this Agreement, are significant subsidiaries (as defined in Rule 1-02 of
Regulation S-X of the U.S. Securities and Exchange Commission (the "SEC")) (the
"Apogent Significant Subsidiaries"). Except as set forth in Section 3.1(a)(iii)
of the Apogent Disclosure Schedule, all the outstanding shares of capital stock
of, or other equity interests in, each Apogent Significant Subsidiary have been
validly issued and are fully paid and nonassessable (subject to Section
180.0622(2)(b) of the WBCL, as judicially interpreted, to the extent applicable)
and are owned directly or indirectly by Apogent, free and clear of all
mortgages, pledges, claims, restrictions, infringements, liens, charges,
encumbrances and security interests and claims of any kind or nature whatsoever
(collectively, "Liens") and free of any other restriction (including preemptive
rights and any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests).
(b) Capital Structure.
(i) The authorized capital stock of Apogent consists of
250,000,000 shares of Apogent Common Stock and 20,000,000 shares of preferred
stock, par value $0.01 per share ("Apogent Preferred Stock"). At the close of
business on March 12, 2004, (A) 88,845,288 shares of Apogent Common Stock were
issued and outstanding; (B) no shares of Apogent Preferred Stock were issued and
outstanding; (C) 9,839,292 shares of Apogent Common Stock were reserved for
issuance upon conversion of Apogent's 2 -1/4% senior Convertible Debt (as
defined in Section 8.3(e)) due 2021; (D) 10,426,110 shares of Apogent Common
Stock were reserved for issuance upon conversion of Apogent's floating senior
Convertible Debt due 2033; (E) 1,441,194 shares of Apogent Common Stock were
reserved for issuance pursuant to the Apogent Purchase Plan, as effective as of
January 1, 2002; (F) 14,031,853 shares of Apogent Common Stock were reserved for
issuance in respect of outstanding Apogent Options or Apogent Restricted Stock
Units and future grants of Apogent Options pursuant to the 1990 Stock Option
Plan, as amended, the Amended and Restated 1993 Long-Term Incentive Plan, the
1994 Amended and Restated Outside Directors' Stock Option Plan, the 1999 Outside
Directors' Stock Option Plan and the 2001 Equity Incentive Plan (such plans,
9
collectively, the "Apogent Stock Plans"), complete and correct copies of which,
in each case as amended, have been filed as exhibits to the Apogent SEC
Documents prior to the date of this Agreement or delivered to Fisher; and (G)
2,500,000 shares of Apogent Preferred Stock were designated as Series A
Preferred Stock, par value $0.01 per share, and were reserved for issuance upon
the exercise of preferred share purchase rights (the "Apogent Rights") issued
pursuant to the Rights Agreement, dated December 11, 2000, between Apogent and
Fleet National Bank as rights agent (the "Apogent Rights Agreement"). Each
outstanding share of capital stock of Apogent is duly authorized, validly
issued, fully paid, nonassessable (subject to Section 180.0622(2)(b) of the
WBCL, as judicially interpreted, to the extent applicable) and free of
preemptive rights.
(ii) As of the close of business on March 12, 2004, 13,006,160
shares of Apogent Common Stock were subject to issuance pursuant to outstanding
Apogent Options and Apogent Restricted Stock Units under the Apogent Stock
Plans. All shares of Apogent Common Stock subject to issuance under the Apogent
Stock Plans and the Apogent Purchase Plan, upon issuance on the terms and
conditions specified in the instruments pursuant to which they are issuable,
will be duly authorized, validly issued, fully paid and nonassessable (subject
to Section 180.0622(2)(b) of the WBCL, as judicially interpreted, to the extent
applicable) and free of preemptive rights. Except as set forth in Section
3.1(b)(ii) of the Apogent Disclosure Schedule, there are no commitments or
agreements of any character to which Apogent is a party or otherwise bound
obligating Apogent to accelerate the vesting of any Apogent Option as a result
of the Merger (whether alone or upon the occurrence of any additional or
subsequent events), and there are no outstanding or authorized stock
appreciation, phantom stock, profit participation or other similar rights with
respect to Apogent.
(iii) No bonds, debentures, notes or other evidences of
indebtedness having the right to vote on any matters on which shareholders of
Apogent may vote ("Voting Debt") are issued or outstanding as of the date
hereof.
(iv) Except as set forth in Section 3.1(b)(iv) of the Apogent
Disclosure Schedule, as of March 12, 2004, there are no securities, options,
warrants, calls, rights, commitments, agreements, arrangements or undertakings
of any kind to which Apogent or any of its Subsidiaries is a party or by which
any of them is bound obligating Apogent or any of its Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
capital stock, Voting Debt or other voting securities of Apogent or any of its
Subsidiaries, or obligating Apogent or any of its Subsidiaries to issue, grant,
extend or enter into any such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking. All outstanding shares of
Apogent Common Stock, all outstanding Apogent Options and all outstanding shares
of capital stock of each Subsidiary of Apogent have been issued and granted in
compliance in all material respects with (A) all applicable securities laws and
all other Applicable Laws and (B) all requirements set forth in applicable
material Contracts.
(v) Since October 1, 2003, and through the date hereof, except
as set forth in Section 3.1(b)(v) or Section 3.1(b)(ii) of the Apogent
Disclosure Schedule,
10
other than (A) issuances of Apogent Common Stock pursuant to the exercise of
Apogent Options granted under Apogent Stock Plans, (B) issuances of Apogent
Common Stock pursuant to the Apogent Purchase Plan, (C) repurchases of Apogent
Common Stock from employees of Apogent following their termination pursuant to
the terms of their pre-existing stock option or purchase agreements, (D)
issuances of Apogent Common Stock (consisting of newly-issued shares or shares
in treasury) as contributions of Apogent Common Stock to defined contribution
plans sponsored by Apogent and (E) grants of Apogent Options under Apogent Stock
Plans in the ordinary course of business consistent with past practice, there
has been no change in (1) the outstanding capital stock of Apogent, (2) the
number of Apogent Options outstanding or (3) the number of other options,
warrants or other rights to purchase Apogent capital stock.
(vi) Except as set forth in Section 3.1(b)(ii) or Section
3.1(b)(vi) of the Apogent Disclosure Schedule, neither Apogent nor any of its
Subsidiaries is a party to any currently effective agreement (A) restricting the
purchase or transfer of, (B) relating to the voting of, (C) requiring the
repurchase, redemption or disposition of, or containing any right of first
refusal with respect to, (D) requiring registration of or (E) granting any
preemptive or antidilutive rights with respect to any capital stock of Apogent
or any of its Subsidiaries or any securities of the type referred to in Section
3.1(b)(vi) hereof.
(vii) Except as set forth in Section 3.1(b)(vii) of the
Apogent Disclosure Schedule, other than its Subsidiaries, as of the date hereof,
Apogent does not directly or indirectly beneficially own any securities or other
beneficial ownership interests in any other entity except for non-controlling
investments made in the ordinary course of business consistent with past
practice in entities which are not individually or in the aggregate material to
Apogent and its Subsidiaries, taken as a whole. There are no outstanding
contractual obligations of Apogent or any of its Subsidiaries to make any loan
to, or any equity or other investment (in the form of a capital contribution or
otherwise) in, any Subsidiary of Apogent or any other Person, other than
guarantees by Apogent of any indebtedness or other obligations of any
wholly-owned Subsidiary of Apogent and other than loans made in the ordinary
course consistent with past practice to employees of Apogent and its
Subsidiaries.
(viii) Neither Apogent nor any of its Subsidiaries owns any
shares of capital stock of Fisher or any of its Subsidiaries.
(c) Authority; Board Approval; Voting Requirements; No Conflict;
Required Filings and Consents.
(i) Authority. Apogent has all requisite corporate power and
authority to enter into this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by Apogent, and the consummation by Apogent of the
transactions contemplated hereby, have been duly and validly authorized by all
necessary corporate action on the part of Apogent,
11
and no other corporate proceedings on the part of Apogent and no shareholder
votes are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby, other than, with respect to approval of this
Agreement and the Merger, the Apogent Shareholder Approval (as defined in
Section 3.1(c)(iii)). This Agreement has been duly executed and delivered by
Apogent. Assuming the due authorization, execution and delivery of this
Agreement by Fisher and Merger Sub, this Agreement constitutes the legal, valid
and binding obligation of Apogent enforceable against Apogent in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting the rights and remedies of
creditors generally and to general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
(ii) Board Approval. The Board of Directors of Apogent has (A)
determined that this Agreement and the Merger are advisable and fair to and in
the best interests of Apogent and its shareholders, (B) duly approved and
adopted this Agreement, the Merger and the other transactions contemplated
hereby, which adoption has not been rescinded or modified, (C) resolved (subject
to Section 4.2(d)) to recommend this Agreement and the Merger to its
shareholders for approval and (D) subject to Section 5.1(b), directed that this
Agreement and the Merger be submitted to its shareholders for consideration in
accordance with this Agreement.
(iii) Voting Requirements. Based on the representation and
warranty of Fisher in Section 3.2(b)(ix) of this Agreement, the affirmative vote
of a majority of the votes that holders of the outstanding shares of Apogent
Common Stock are entitled to cast (the "Apogent Shareholder Approval") is the
only vote of the holders of any class or series of Apogent capital stock
necessary to approve and adopt this Agreement, approve the Merger and consummate
the Merger and the other transactions contemplated hereby.
(iv) No Conflict. Except as set forth in Section 3.1(c)(iv) of
the Apogent Disclosure Schedule, the execution and delivery of this Agreement by
Apogent do not, and the consummation by Apogent of the transactions contemplated
hereby and compliance by Apogent with the provisions of this Agreement will not,
conflict with, result in any violation or breach of or change of control or
default (with or without notice or lapse of time, or both) under, require any
consent, waiver or approval under, give rise to any right of termination or
cancellation or acceleration of any right or obligation or loss of a benefit
under, or result in the creation of any Lien upon any of the properties or
assets of Apogent or any of its Subsidiaries or any restriction on the conduct
of Apogent's business or operations under, (A) the Apogent Organizational
Documents or the Apogent Subsidiary Organizational Documents, (B) any Contract
or Apogent Permit (as defined in Section 3.1(g)(i)) or (C) subject to the
governmental filings and other matters referred to in Section 3.1(c)(v), any
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Apogent or any of its Subsidiaries or their respective properties or assets,
other than, in the case of clauses (B) and (C), any such conflicts, violations,
defaults, rights, losses, restrictions or Liens, or failure to obtain consents,
waivers or approvals, which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Apogent and its
Subsidiaries, taken as a whole.
12
(v) Required Filings or Consents. No consent, approval, order
or authorization or permit of, action by or in respect of, registration,
declaration or filing with, or notification to, any federal, state, local or
foreign government, any court, administrative, regulatory or other governmental
agency, commission or authority or any non-governmental self-regulatory agency,
commission or authority (a "Governmental Entity") or any other Person is
required to be made, obtained, performed or given to or with respect to Apogent
or any of its Subsidiaries in connection with the execution and delivery of this
Agreement by Apogent or the consummation by Apogent of the transactions
contemplated hereby, except for:
(A) the filing of a pre-merger notification and report form by Apogent
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and any applicable filings or notifications
under the antitrust, competition or similar laws of any foreign
jurisdiction;
(B) the filing with the SEC of:
(1) a proxy statement relating to the Apogent Shareholders'
Meeting (as defined in Section 5.1(b)) (such proxy statement,
together with the proxy statement relating to the Fisher
Stockholders' Meeting (as defined in Section 5.1(b), in each
case as amended or supplemented from time to time, the "Joint
Proxy Statement");
(2) such reports and filings under Section 13(a), 13(d), 14(a),
15(d) or 16(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the rules and regulations
thereunder, as may be required in connection with this
Agreement and the transactions contemplated hereby;
(C) the filing of the Articles of Merger with the DFI and appropriate
documents with the NYSE and the relevant authorities of other states
in which Apogent is qualified to do business and such filings as may
be necessary in accordance with state securities or other "blue sky"
laws;
(D) the Apogent Shareholder Approval;
(E) the consents, approvals, orders or authorizations set forth in
Section 3.1(c)(v) of the Apogent Disclosure Schedule; and
(F) other such consents, approvals, orders or authorizations, the
failure of which to be made or obtained, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect on Apogent and its Subsidiaries, taken as a whole.
13
(d) SEC Documents; Financial Statements.
(i) Apogent has filed with the SEC all registration
statements, prospectuses, reports, schedules, forms, statements, certifications
and other documents (including exhibits and all other information incorporated
by reference therein) presently required to be so filed by Apogent since October
1, 2002 (excluding the Joint Proxy Statement, the "Apogent SEC Documents"). As
of their respective dates, the Apogent SEC Documents complied in all material
respects with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), or the Exchange Act, as the case may be, to the extent in
effect, the Sarbanes-Oxley Act of 2002 ("SOX") and the rules and regulations of
the SEC promulgated thereunder applicable to such Apogent SEC Documents, and
none of the Apogent SEC Documents, when filed, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except to the extent
corrected by a subsequently filed Apogent SEC Document filed with the SEC prior
to the date hereof. No Subsidiary of Apogent is subject to the periodic
reporting requirements of the Exchange Act.
(ii) Each of the principal executive officer of Apogent and
the principal financial officer of Apogent (or each former principal executive
officer of Apogent and each former principal financial officer of Apogent, as
applicable) has made all certifications required by Rule 13a-14 or 15d-14 under
the Exchange Act or Sections 302 and 906 of SOX and the rules and regulations of
the SEC promulgated thereunder with respect to the Apogent SEC Documents. For
purposes of the preceding sentence, "principal executive officer" and "principal
financial officer" shall have the meanings given to such terms in SOX. Neither
Apogent nor any of its Subsidiaries has outstanding, or has arranged any
outstanding, "extensions of credit" to directors or executive officers within
the meaning of Section 402 of SOX.
(iii) The financial statements of Apogent included in the
Apogent SEC Documents, including each Apogent SEC Document filed after the date
hereof until the Effective Time, comply, as of their respective dates of filing
with the SEC, in all material respects with applicable accounting requirements
and the published rules and regulations of the SEC with respect thereto, have
been prepared in accordance with United States generally accepted accounting
principles ("GAAP") (except, in the case of unaudited statements, as permitted
by Form 10-Q or 8-K or other applicable rules of the SEC) applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly present the consolidated financial position of Apogent
and its consolidated Subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal year-end audit adjustments which
are not material). The financial books and records of Apogent and its
Subsidiaries, taken as a whole, are true and correct in all material respects.
14
(iv) Except as reflected or reserved against in the balance
sheet of Apogent, dated December 31, 2003, included in the Form 10-Q filed
by Apogent with the SEC on February 13, 2004 (including the notes thereto,
the "Apogent Balance Sheet") and except as set forth in Section 3.1(d)(iv)
of the Apogent Disclosure Schedule, neither Apogent nor any of its
Subsidiaries has any liabilities or obligations of any nature (whether
absolute, accrued, known or unknown, contingent or otherwise) nor, to the
Knowledge (as defined in Section 8.3(j)) of Apogent, does any basis exist
therefor, other than (A) liabilities or obligations incurred since
December 31, 2003 in the ordinary course of business consistent with past
practice which would not reasonably be expected to have a Material Adverse
Effect on Apogent and its Subsidiaries, taken as a whole, (B) liabilities
or obligations under the Apogent Material Contracts set forth in Section
3.1(q)(ii) of the Apogent Disclosure Schedule, (C) liabilities or
obligations incurred pursuant to Contracts entered into after the date
hereof not in violation of this Agreement and (D) liabilities or
obligations incurred pursuant to this Agreement or the transactions
contemplated hereby.
(v) Except as set forth in Section 3.1(d)(v) of the Apogent
Disclosure Schedule, neither Apogent nor any of its Subsidiaries is a
party to, or has any commitment to become a party to, any joint venture,
off-balance sheet partnership or any similar contract or arrangement
(including without limitation any contract or arrangement relating to any
transaction or relationship between or among Apogent and any of its
Subsidiaries, on the one hand, and any unconsolidated Affiliate (as
defined in Section 8.3(a)), including without limitation any structured
finance, special purpose or limited purpose entity or Person, on the other
hand, or any "off-balance sheet arrangement" (as defined in Item 303(a) of
Regulation S)), where the result, purpose or intended effect of such
contract or arrangement is to avoid disclosure of any material transaction
involving, or material liabilities of, Apogent or any of its Subsidiaries
in Apogent's or such Subsidiary's published financial statements or other
Apogent SEC Documents.
(vi) No "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) filed as an exhibit to the
Apogent Form 10-K has been amended or modified, except for amendments or
modifications which have been filed as an exhibit to a subsequently dated
Apogent SEC Document or are not required to be filed with the SEC.
(e) Information Supplied. None of the information supplied or to
be supplied by or on behalf of Apogent for inclusion or incorporation by
reference in (i) the registration statement on Form S-4 to be filed with the SEC
by Fisher in connection with the issuance of Fisher Common Stock in the Merger
(including any amendments or supplements, the "Form S-4") will, at the time the
Form S-4 becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) the Joint Proxy Statement will, at the date it is first mailed to Apogent's
shareholders or at the time of the
15
Apogent Shareholders' Meeting, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. The Joint Proxy Statement and the Form S-4 will
comply as to form in all material respects with the requirements of the
Securities Act and the Exchange Act and the rules and regulations thereunder.
Notwithstanding the foregoing provisions of this Section 3.1(e), no
representation or warranty is made by Apogent with respect to information or
statements made or incorporated by reference in the Form S-4 or the Joint Proxy
Statement which were not supplied by or on behalf of Apogent.
(f) Absence of Certain Changes or Events.
(i) Except as set forth in Section 3.1(f) of the Apogent
Disclosure Schedule, since October 1, 2003 through the date hereof, except
as and to the extent disclosed in the Apogent SEC Documents filed prior to
the date of this Agreement and except for liabilities incurred pursuant to
this Agreement or the transactions contemplated hereby:
(A) Apogent and its Subsidiaries have conducted their business only in
the ordinary course consistent with past practice;
(B) there has not been any split, combination or reclassification of any
of Apogent's capital stock or any declaration, setting aside or
payment of any dividend on, or other distribution (whether in cash,
stock or property) in respect of, in lieu of or in substitution for,
shares of Apogent's capital stock;
(C) except as required by a change in GAAP, there has not been any
change in accounting methods, principles or practices by Apogent;
and
(D) there has not been any action taken by Apogent or any of its
Subsidiaries that, if taken during the period from the date of this
Agreement through the Effective Time, would constitute a breach of
Section 4.1(a), other than actions in connection with entering into
this Agreement.
(ii) Since October 1, 2003 through the date hereof, there
have not been any changes, circumstances or events that, individually or
in the aggregate, have had, or would reasonably be expected to have, a
Material Adverse Effect on Apogent and its Subsidiaries, taken as a whole.
(g) Compliance with Applicable Laws; Permits; Litigation.
(i) Apogent, its Subsidiaries and employees hold all
authorizations, permits, licenses, certificates, easements, concessions,
franchises, variances, exemptions, orders, consents, registrations,
approvals and clearances of
16
all Governmental Entities (including all authorizations under the Federal
Food, Drug and Cosmetic Act of 1938, as amended (the "FDCA"), and the
regulations of the U.S. Food and Drug Administration (the "FDA")
promulgated thereunder) and third Persons which are required for Apogent
and its Subsidiaries to own, lease and operate its properties and other
assets and to carry on their respective businesses in the manner described
in the Apogent SEC Documents filed prior to the date hereof and as they
are being conducted as of the date hereof (the "Apogent Permits"), and all
Apogent Permits are valid and in full force and effect, except where the
failure to have, or the suspension or cancellation of, or the failure to
be valid or in full force and effect of, any such Apogent Permits,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect on Apogent and its Subsidiaries, taken as a
whole.
(ii) Except as set forth in Section 3.2(g)(ii) of the Apogent
Disclosure Schedule, Apogent and its Subsidiaries are, and have been at
all times since October 1, 2002, in compliance with the terms of the
Apogent Permits and all laws, statutes, orders, rules, regulations,
policies or guidelines promulgated, or judgments, decisions or orders
entered by any Governmental Entity, including the Public Health Service
Act, Biological Products, 21 C.F.R.Sections 600-610 (the "Public
Health Service Act") (all such laws, statutes, orders, rules, regulations,
policies, directives, guidelines, judgments, decisions and orders,
collectively, "Applicable Laws") relating to Apogent and its Subsidiaries
or their respective businesses, assets or properties, except where the
failure to be in compliance with the terms of the Apogent Permits or such
Applicable Laws, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Apogent and its
Subsidiaries, taken as a whole. Except as set forth in Section 3.2(g)(ii)
of the Apogent Disclosure Schedule, since October 1, 2002, neither Apogent
nor any of its Subsidiaries has received any written notification from any
Governmental Entity (A) asserting that Apogent or any of its Subsidiaries
is not in compliance with, or at any time since such date has failed to
comply with, Applicable Laws (except for any such lack of compliance
which, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on Apogent and its Subsidiaries, taken
as a whole) or (B) or threatening to revoke any Permit (except for any
such revocation which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Apogent and
its Subsidiaries, taken as a whole) nor, to the Knowledge of Apogent, does
any basis exist therefore. As of the date hereof, no material
investigation or review by any Governmental Entity is pending or, to the
Knowledge of Apogent, has been threatened in writing against Apogent or
any of its Subsidiaries.
(iii) Except with respect to Section 404 of SOX, Apogent is,
and has been, in compliance in all material respects with the provisions
of SOX applicable to it on or prior to the date hereof and has implemented
such programs and has taken all reasonable steps necessary to ensure
Apogent's future compliance (not later than the relevant statutory and
regulatory deadlines therefor)
17
with all provisions of SOX which shall become applicable to Apogent after
the date hereof.
(iv) As of the date hereof, except as and to the extent
disclosed in the Apogent SEC Documents filed prior to the date of this
Agreement, including the notes to the financial statements included
therein, no action, audit, demand, claim, suit, proceeding, requirement or
investigation by any Governmental Entity, and no suit, action, mediation,
arbitration or proceeding by any Person, against or affecting Apogent or
any of its Subsidiaries or any of their respective properties, including
Intellectual Property (as defined in Section 8.3(i)), is pending or, to
the Knowledge of Apogent, threatened which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect
on Apogent and its Subsidiaries, taken as a whole.
(v) Neither Apogent nor any of its Subsidiaries is, or at
any time since October 1, 2002 has been, subject to any outstanding order,
injunction or decree which, individually or in the aggregate, has had or
would reasonably be expected to have a Material Adverse Effect on Apogent
and its Subsidiaries, taken as a whole.
(h) Labor and Other Employment Matters.
(i) As of the date hereof, except as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect on Apogent and its Subsidiaries, taken as a whole, or as set forth
in Section 3.1(h)(i) of the Apogent Disclosure Schedule, (A) no work
stoppage, slowdown, lockout, labor strike, material arbitrations or other
material labor disputes against Apogent or any of its Subsidiaries are
pending or, to the Knowledge of Apogent, threatened, (B) no unfair labor
practice charges, grievances or complaints are pending or, to the
Knowledge of Apogent, threatened against Apogent or any of its
Subsidiaries, (C) neither Apogent nor any of its Subsidiaries is
delinquent in payments to any of its employees for any wages, salaries,
commissions, bonuses or other direct compensation for any services
performed for it or amounts required to be reimbursed to such employees,
(D) neither Apogent nor any of its Subsidiaries is liable for any payment
to any trust or other fund or to any Governmental Entity with respect to
unemployment compensation benefits, social security or other benefits or
obligations for employees, (E) no employee of Apogent, at the officer
level or above, has given written notice to Apogent or any of its
Subsidiaries that any such employee intends to terminate his or her
employment with Apogent or any of its Subsidiaries, (F) to the Knowledge
of Apogent, no employee of Apogent or any of its Subsidiaries is in any
respect in violation of any term of any employment contract, nondisclosure
agreement, common law nondisclosure obligations, non-competition
agreement, or any restrictive covenant to a former employer relating to
the right of any such employee to be employed by Apogent or any of its
Subsidiaries because of the nature of the business conducted or presently
18
proposed to be conducted by Apogent or any of its Subsidiaries or to the
use of trade secrets or proprietary information of others, (G) neither
Apogent nor any of its Subsidiaries is a party to, or otherwise bound by,
any consent decree with, or citation by, any Governmental Entity relating
to employees or employment practices and (H) Apogent and its Subsidiaries
are in compliance with all applicable laws, agreements, contracts,
policies, plans and programs relating to employment, employment practices,
compensation, benefits, hours, terms and conditions of employment and the
termination of employment, including but not limited to any obligations
pursuant to the Worker Adjustment and Retraining Notification Act of 1988.
(ii) Except as set forth in Section 3.1(h)(ii) of the Apogent
Disclosure Schedule, as of the date hereof,
(A) neither Apogent nor any of its Subsidiaries is a
party to, or otherwise bound by, any collective bargaining agreement
or any other agreement, work rules or practices with a labor union,
labor organization or works council, nor are any such agreements,
work rules or practices presently being negotiated;
(B) none of the employees of Apogent or any of its
Subsidiaries is represented by any labor union, labor organization
or works council in his or her capacity as an employee of Apogent or
any of its Subsidiaries;
(C) no labor union, labor organization or works
council or group of employees of Apogent or any of its Subsidiaries
has made a pending demand for recognition or certification to
Apogent or any of its Subsidiaries, and there are no representation
or certification proceedings or petitions seeking a representation
proceeding presently pending or, to the Knowledge of Apogent,
threatened to be brought or filed with the National Labor Relations
Board ("NLRB") or any other labor relations tribunal or authority;
and
(D) to the Knowledge of Apogent, no labor union, labor
organization or works council is seeking to organize any employees
of Apogent or any of its Subsidiaries.
(i) Benefit Plans.
(i) Section 3.1(i)(i)(A) of the Apogent Disclosure Schedule
sets forth a true and complete list of each written bonus, pension, profit
sharing, deferred compensation, incentive compensation, stock ownership,
stock purchase, stock option or other equity compensation, phantom stock,
stock-related or performance award, retirement, vacation, severance or
termination pay, change in control, retention, disability, death benefit,
hospitalization, medical, life
19
insurance, loan, disability, and other similar plan, arrangement,
agreement or understanding, including, without limitation, each "employee
benefit plan" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") and any
employment agreement, consulting agreement, termination or severance
agreement (such plans, agreements, arrangements or understandings, except
any plan which is a Multiemployer Plan (as defined in Section 8.3(l)),
collectively, "Benefit Plans") with or for the benefit of any current or
former employee, officer or director of Apogent or any of its Subsidiaries
or ERISA Affiliates (as defined in Section 3.1(i)(v)) or with respect to
which Apogent or any of its Subsidiaries or ERISA Affiliates have any
obligations or liabilities (the "Apogent Benefit Plans"). With respect to
the Apogent Benefit Plans, no event has occurred, and there exists no
condition or set of circumstances, which would reasonably be expected to
have a Material Adverse Effect on Apogent and its Subsidiaries, taken as a
whole, under ERISA, the Code or any other Applicable Laws. Neither
Apogent, nor any of its Subsidiaries, nor, to the Knowledge of Apogent,
any other Person, has any express or implied commitment, whether legally
enforceable or not, to modify, change or terminate any Apogent Benefit
Plan, other than with respect to a modification, change or termination
required by ERISA or the Code, or any other Applicable Laws. Except as set
forth in Section 3.1(i)(i)(B) of the Apogent Disclosure Schedule, Apogent
has delivered or made available to Fisher true, correct and complete
copies of all Apogent Benefit Plans (or, if not so delivered, has
delivered or made available to Fisher a written summary of their material
terms) and, with respect thereto, all amendments, trust agreements,
insurance Contracts, other funding vehicles, determination letters issued
by the Internal Revenue Service, the most recent annual reports (Form 5500
series) filed with the Internal Revenue Service and the most recent
actuarial report or other financial statement relating to such Apogent
Benefit Plan.
(ii) Each Apogent Benefit Plan has been, in all material
respects, administered and operated in accordance with its terms, with the
applicable provisions of ERISA, the Code and other Applicable Laws and
with the terms of all applicable collective bargaining agreements. Each
Apogent Benefit Plan, including any material amendments thereto, that is
capable of approval by, or registration or qualification for special tax
status with, the appropriate taxation, social security or supervisory
authorities in the relevant country, state, territory or the like (each,
an "Approval") has received such Approval (or there remains a period of
time in which to obtain such Approval retroactive to the date of any
material amendment that has not previously received such Approval), and no
event has occurred which would reasonably be expected to result in the
revocation of such Approval or the imposition of material sanctions by
such authorities. Without limiting the generality of the foregoing, each
Apogent Benefit Plan that is intended to be qualified under Section 401(a)
of the Code has obtained a favorable determination letter from the
Internal Revenue Service that the Apogent Benefit Plan is so qualified and
all related trusts are exempt from U.S. federal income taxation under
Section 501(a) of the Code, and,
20
to the Knowledge of Apogent, nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification or
exemption.
(iii) Except as set forth in Section 3.1(i)(iii) of the
Apogent Disclosure Schedule, to the Knowledge of Apogent, no oral or
written representation or commitment with respect to any material aspect
of any Apogent Benefit Plan has been made to an employee or former
employee of Apogent or any of its Subsidiaries by an authorized Apogent
employee that is not materially in accordance with the written or
otherwise pre-existing terms and provisions of such Apogent Benefit Plans.
To the Knowledge of Apogent, neither Apogent nor any of its Subsidiaries
has entered into any agreement, arrangement or understanding, whether
written or oral, with any trade union, works council or other employee
representative body or any material number or category of its employees
which would prevent, restrict or materially impede the implementation of
any layoff, redundancy, severance or similar program within its or their
respective workforces (or any part of them).
(iv) There are no material unresolved claims or disputes
under the terms of, or in connection with, any Apogent Benefit Plan (other
than routine undisputed claims for benefits), and no action, legal or
otherwise, has been commenced or threatened with respect to any material
claim or otherwise in connection with an Apogent Benefit Plan.
(v) Except as set forth in Section 3.1(i)(v) of the Apogent
Disclosure Schedule, with respect to each Funded Retirement Plan (as
defined below) of Apogent or any of its Subsidiaries, the aggregate value
of the assets of such Funded Retirement Plan is equal to or greater than
the aggregate value of its liabilities assessed on an ongoing and
terminated basis and calculated in accordance with the actuarial methods
and assumptions used in such valuation pursuant to such Funded Retirement
Plan and Applicable Laws and GAAP. For purposes of this Agreement, "Funded
Retirement Plan" means, with respect to a party, a Benefit Plan that is a
"pension plan" within the meaning of Section 3(2) of ERISA (whether or not
such Benefit Plan is subject to ERISA) and under which the assets to
satisfy the benefit obligations are legally segregated from the general
assets of such party or any of its Subsidiaries and are not subject to the
creditors of such party or any of its Subsidiaries. None of Apogent or any
other Person or entity under common control within the meaning of Section
414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") with Apogent
has incurred, or is reasonably expected to incur, any liability to a
Funded Retirement Plan under Title IV of ERISA (other than for
contributions not yet due) or to the Pension Benefit Guaranty Corporation
(other than for payment of premiums not yet due) that, when aggregated
with other such liabilities, would reasonably be expected to result in a
material liability of Apogent and its Subsidiaries, taken as a whole,
which liability has not been fully paid.
21
(vi) Section 3.1(i)(vi) of the Apogent Disclosure Schedule
sets forth a true and complete list of each Multiemployer Plan to which
Apogent or any ERISA Affiliate of Apogent contributes or is required to
contribute, or to which or with respect to which, Apogent or any ERISA
Affiliate of Apogent has any material liability.
(vii) Except as set forth in Section 3.1(i)(vii) of the
Apogent Disclosure Schedule, no Apogent Benefit Plan provides health
benefits (whether or not insured) with respect to employees or former
employees of Apogent or any of its Subsidiaries after retirement or other
termination of service (other than coverage mandated by Applicable Laws or
benefits, the full cost of which is borne by the employee or former
employee).
(viii) Except as set forth in Section 3.1(i)(viii)(A) of the
Apogent Disclosure Schedule, and except with respect to each unvested
Apogent Option and Apogent Restricted Stock Unit, each of which by its
terms will automatically vest and, in the case of an Apogent Option,
become exercisable and, in the case of an Apogent Restricted Stock Unit,
become nonforfeitable, upon a change of control of Apogent, neither the
negotiation and execution of this Agreement nor the consummation of the
transactions contemplated hereby will (either alone or upon the occurrence
of any additional or subsequent events) constitute an event under any
Apogent Benefit Plan that will or may result in any payment (whether of
severance pay or otherwise), acceleration of payment, forgiveness of
indebtedness, vesting, distribution, increase in benefits or obligation to
fund benefits with respect to any employee or former employee of Apogent
or any of its Subsidiaries. Except as set forth in Section 3.1(i)(viii)(B)
of the Apogent Disclosure Schedule, there is no contract, agreement, plan
or arrangement with an employee or former employee of Apogent to which
Apogent or any of its Subsidiaries is a party as of the date of this
Agreement that, individually or collectively and as a result of the
transaction contemplated hereby (whether alone or upon the occurrence of
any additional or subsequent events) or otherwise, would reasonably be
expected to give rise to the payment of any amount that would not be
deductible pursuant to Sections 280G or 162(m) of the Code.
(j) Taxes.
(i) Each of Apogent and its Subsidiaries has (A) duly and
timely filed (or there have been filed on its behalf) all material Tax
Returns (as defined below) required to be filed by it (taking into account
all applicable extensions) with the appropriate Tax Authority (as defined
below) and all such Tax Returns are true, correct and complete in all
material respects, (B) duly paid in full or made provision in accordance
with GAAP (or there has been paid or provision has been made on its
behalf) for the payment of all material Taxes (as defined in Section
3.1(j)(xi)) for all periods ending through the date hereof and
22
(C) complied in all material respects with all Applicable Laws relating to
the payment and withholding of Taxes.
(ii) There are no material Liens for Taxes upon any property
or assets of Apogent or any of its Subsidiaries, except for liens for
Taxes not yet due and payable and for which adequate reserves have been
provided in accordance with GAAP in the most recent financial statements
contained in the Apogent SEC Documents filed prior to the date of this
Agreement.
(iii) The most recent financial statements contained in the
Apogent SEC Documents reflect an adequate reserve in accordance with GAAP
for all Tax liabilities of Apogent and its Subsidiaries for all taxable
periods and portions thereof accrued through the date of such financial
statements.
(iv) Except as set forth in Section 3.1(j)(iv) of the Apogent
Disclosure Schedule, there is no audit, examination, deficiency, refund
litigation, proposed adjustment or matter in controversy with respect to
any Taxes or Tax Return of Apogent or any of its Subsidiaries which, if
determined adversely, would be expected to result in a material Tax
deficiency. Neither Apogent nor any of its Subsidiaries has received
written notice of any claim made by a Governmental Entity in a
jurisdiction where Apogent or any of its Subsidiaries, as applicable, does
not file a Tax Return, that Apogent or such Subsidiary is or may be
subject to taxation by that jurisdiction.
(v) The material income Tax Returns of Apogent and each of
its Subsidiaries, including any predecessors thereof, have been examined
by the applicable Tax Authority (or the applicable statutes of limitations
for the assessment of income Taxes for such periods have expired) for all
periods through and including September 30, 1999, and no material
deficiencies were asserted as a result of such examinations which have not
been resolved and fully paid or accrued as a liability on the most recent
financial statements contained in the Apogent SEC Documents.
(vi) Except as set forth in Section 3.1(j)(vi) of the Apogent
Disclosure Schedule, there are no outstanding requests, agreements,
consents or waivers to extend the statutory period of limitations
applicable to the assessment of any Taxes or deficiencies against Apogent
or any of its Subsidiaries, and no power of attorney granted by either
Apogent or any of its Subsidiaries with respect to any Taxes is currently
in force.
(vii) Except as set forth in Section 3.1(j)(vii) of the
Apogent Disclosure Schedule, neither Apogent nor any of its Subsidiaries
is a party to any agreement providing for the allocation, indemnification
or sharing of Taxes (other than any agreements solely between Apogent and
its Subsidiaries), and neither Apogent nor any of its Subsidiaries (A) has
been a member of an affiliated group (or similar state, local or foreign
filing group) filing a
23
consolidated income Tax Return (other than a group the common parent of
which is Apogent) or (B) has any liability for the Taxes of any Person
(other than Apogent or any of its Subsidiaries) under Treasury
Regulation Section 1.1502-6 (or any similar provision of state, local or
foreign law), as a transferee or successor, by contract or otherwise.
(viii) Apogent and each of its Subsidiaries has delivered or
made available to Fisher complete copies of all material income Tax
Returns of Apogent and each of its Subsidiaries, including any
predecessors thereof, for taxable years ending between October 1, 1999 and
September 30, 2003, excepting such Tax Returns as have not been filed for
the taxable year ending September 30, 2003 pursuant to appropriate
extensions with respect thereto.
(ix) Except as set forth in Section 3.1(j)(ix) of the Apogent
Disclosure Schedule, neither Apogent nor any of its Subsidiaries has (A)
agreed to make nor is it required to make any material adjustment under
Section 481(a) of the Code by reason of a change in accounting method or
otherwise; (B) constituted either a "distributing corporation" or a
"controlled corporation" (within the meaning of Section 355(a)(1)(A) of
the Code) in a distribution of stock qualifying for tax-free treatment
under Section 355 of the Code (I) in the two years prior to the date of
this Agreement or (II) in a distribution which could otherwise constitute
part of a "plan" or "series of related transactions" (within the meaning
of Section 355(e) of the Code) in connection with the Merger; or (C) taken
(or caused to be taken) any action or knows of any fact, agreement, plan
or other circumstance that would reasonably be expected to prevent the
Merger from qualifying as a "reorganization" within the meaning of Section
368(a) of the Code.
(x) Apogent is not, and has not been, a United States real
property holding corporation (as defined in Section 897(c)(2) of the Code)
during the applicable period specified in Section 897(c)(1)(A)(ii) of the
Code.
(xi) "Taxes" means any and all federal, state, local, foreign
or other taxes of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto)
imposed by any Governmental Entity, including, without limitation, taxes
or other charges on or with respect to income, franchises, windfall or
other profits, gross receipts, property, sales, use, capital stock,
payroll, employment, unemployment, social security, workers' compensation,
or net worth, and taxes or other charges in the nature of excise,
withholding, ad valorem or value added; "Tax Authority" means the Internal
Revenue Service and any other domestic or foreign Governmental Entity
responsible for the administration or collection of any Taxes; and "Tax
Return" means any return, report or similar statement (including the
attached schedules) required to be filed with respect to Taxes, including,
without limitation, any information return, claim for refund, amended
return, or declaration of estimated Taxes.
24
(k) Interested Party Transactions. Since the date of the Apogent
Balance Sheet, no event has occurred that would be required to be reported as a
Certain Relationship or Related Transaction pursuant to Statement of Financial
Accounting Standards No. 57 or Item 404 of Regulation S-K of the SEC.
(l) Environmental Matters. Except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect on
Apogent and its Subsidiaries, taken as a whole, (i) the operations of Apogent
and its Subsidiaries are, and at all times since October 1, 2002 have been, in
compliance with all applicable Environmental Laws (as defined in Section
8.3(f)), including possession and compliance with the terms of all licenses
required by Environmental Laws, (ii) there are no pending or, to the Knowledge
of Apogent, threatened suits, actions, investigations or proceedings under or
pursuant to Environmental Laws against Apogent or any of its Subsidiaries or
involving any real property currently or, to the Knowledge of Apogent, formerly
owned, operated or leased or other sites at which Hazardous Materials (as
defined in Section 8.3(h) were disposed of, or allegedly disposed of, by Apogent
or any of its Subsidiaries, (iii) Apogent and its Subsidiaries are not subject
to and have received no written allegations of any Environmental Liabilities (as
defined in Section 8.3(g)), and no facts, circumstances or conditions relating
to, arising from, associated with or attributable to any real property currently
or, to the Knowledge of Apogent, formerly owned, operated or leased by Apogent
or any of its Subsidiaries or operations thereon has resulted in or would
reasonably be expected to result in Environmental Liabilities, and (iv) all real
property owned or operated by Apogent or any of its Subsidiaries is free of
contamination from Hazardous Materials that would have an adverse effect on
human health or the environment.
(m) Intellectual Property. Except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect on
Apogent and its Subsidiaries, taken as a whole, (i) Apogent or a Subsidiary of
Apogent (A) owns and is listed in the records of the appropriate United States,
state or foreign registry as the current owner of record for each application
and registration of Intellectual Property or (B) has a legally enforceable right
to use (in each case, free and clear of any Liens) all Intellectual Property
used in or necessary for the conduct of its business as currently conducted,
including without limitation all patents and patent applications and all
trademark registrations and trademark applications; (ii) except as set forth in
Section 3.1(m)(ii) of the Apogent Disclosure Schedule, to the Knowledge of
Apogent, the conduct of the business of Apogent and its Subsidiaries as
currently conducted does not infringe on or misappropriate, either directly or
indirectly (such as through contributory infringement or inducement to
infringe), the Intellectual Property rights of any Person, and the use by
Apogent or any of its Subsidiaries of any Intellectual Property is, to the
Knowledge of Apogent, in accordance with any applicable grant, license,
agreement, instrument or other arrangement pursuant to which Apogent or any
Affiliate acquired the right to use such Intellectual Property; (iii) to the
Knowledge of Apogent, no Person is misappropriating, infringing, diluting or
otherwise violating any right of Apogent or any of its Subsidiaries with respect
to any Intellectual Property owned or used by Apogent or any of its
Subsidiaries, and no such claims, suits, arbitrations or other adversarial
proceedings have been brought or threatened against any Person by Apogent or any
of its Subsidiaries; (iv) to the Knowledge of Apogent, except as set forth in
Section 3.1(m)(iv) of the Apogent Disclosure Schedule, neither Apogent nor any
of its Subsidiaries has received written notice by any Person of any pending or
25
threatened claim, suit, action, mediation, arbitration, order or other
adversarial proceeding (A) alleging infringement (or other violation) by Apogent
or any of its Subsidiaries of Intellectual Property or other rights of any
Person or (B) challenging Apogent's or any of its Subsidiaries' ownership or use
of, or the validity, enforcement, registrability or maintenance of, any
Intellectual Property owned or used by Apogent or any of its Subsidiaries, and,
to the Knowledge of Apogent, no Intellectual Property owned or used by Apogent
or any of its Subsidiaries is being used or enforced in a manner that would
reasonably be expected to result in the abandonment, cancellation or
unenforceability of such Intellectual Property; (v) to the Knowledge of Apogent,
the Intellectual Property owned or used by Apogent or any of its Subsidiaries
(A) has been duly maintained, (B) is subsisting, in full force and effect, (C)
is valid and enforceable, (D) has not expired, been cancelled or abandoned and
(E) all maintenance, registration and renewal fees necessary to preserve the
rights of Apogent in connection with such Intellectual Property have been paid
in a timely manner, and there are no actions that must be taken by Apogent or
any of its Subsidiaries within 90 days from the date hereof, including the
payment of any registration, maintenance or renewal fees or the filing with the
United States Patent and Trademark Office or such other appropriate U.S. or
foreign office or similar administrative agency of documents, applications or
certificates for the purposes of obtaining, maintaining, perfecting, preserving
or renewing any rights in the registered or applied-for Intellectual Property;
(vi) to the Knowledge of Apogent, except as set forth in Section 3.1(m)(vi) of
the Apogent Disclosure Schedule, neither Apogent nor any of its Subsidiaries has
entered into any consents, judgments, orders, indemnifications, forbearances to
sue, settlement agreements, licenses or other arrangements which (A) restrict
Apogent's or any of its Subsidiaries' right to use any Intellectual Property,
(B) restrict Apogent's or any of its Subsidiaries' businesses in order to
accommodate a third Person's Intellectual Property rights, (C) permit third
parties to use any Intellectual Property owned or controlled by Apogent or any
of its Subsidiaries or (D) reasonably would be expected to provide a third
Person a defense to patent infringement in connection with any Intellectual
Property owned or used by Apogent; (vii) to the Knowledge of Apogent, Apogent
and each of its Subsidiaries has implemented commercially reasonable measures to
maintain the confidentiality of the Intellectual Property and all other property
used in the business of Apogent or any of its Subsidiaries as presently
conducted; and (viii) each current and former employee of Apogent or any of its
Subsidiaries who has contributed to or participated in research and development
activities will not, after giving effect to the transactions contemplated
herein, own or retain any rights to use any of the Intellectual Property owned
or used by Apogent or any of its Subsidiaries.
(n) State Takeover Statutes. Apogent has, or will have prior to
the Effective Time, taken all necessary action so that, assuming compliance by
Fisher and Merger Sub with their respective obligations hereunder and the
accuracy of the representations and warranties made by Fisher and Merger Sub
herein, no "business combination," "moratorium," "fair price," "control share
acquisition" or other state antitakeover statute or regulation, nor any
takeover-related provision in the Apogent Organizational Documents, would (i)
prohibit or restrict Apogent's ability to perform its obligations under this
Agreement, any related agreement or the Articles of Merger or its ability to
consummate the transactions contemplated hereby and thereby, (ii) have the
effect of invalidating or voiding this Agreement or the Articles of Merger, or
any provision hereof or thereof, or (iii) subject Fisher to any impediment or
condition in connection with the exercise of any of its rights under this
Agreement or the Articles of Merger.
26
(o) Brokers. Except for fees payable to Lehman Brothers Inc.
("Lehman"), no broker, investment banker, financial advisor or other Person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Apogent.
(p) Opinion of Financial Advisor. Apogent has received the opinion
of its financial advisor, Lehman, dated the date of this Agreement, to the
effect that, as of such date, the Exchange Ratio is fair, from a financial point
of view, to the holders of Apogent Common Stock.
(q) Material Contracts.
(i) For purposes of this Agreement, "Apogent Material
Contract" shall mean:
(A) Any employment, severance, consulting or other
Contract with an employee or former employee, officer or director of
Apogent or any Subsidiary of Apogent (other than any unwritten Contract
for the employment of any such employee or former employee implied at law)
which will require the payment of amounts by Apogent or any Subsidiary of
Apogent, as applicable, after the date hereof in excess of $250,000 per
annum;
(B) Any collective bargaining Contract with any labor
union;
(C) Any Contract for capital expenditures or the
acquisition or construction of fixed assets which requires aggregate
future payments in excess of $2,500,000;
(D) Any Contract containing covenants of Apogent or
any Subsidiary of Apogent (1) to indemnify or hold harmless another Person
or group of Persons, unless such indemnification or hold harmless
obligation to such Person, or group of Persons, as the case may be, would
not reasonably be expected to exceed a maximum of $1,000,000 (except for
product warranty obligations in Contracts for the sale of goods in the
ordinary course of business) or (2) not to (or otherwise restrict or limit
the ability of Apogent or any of its Subsidiaries to) compete in any line
of business or geographic area;
(E) Any Contract requiring aggregate future payments
or expenditures in excess of $2,500,000
27
and relating to cleanup, abatement, remediation or similar actions in
connection with environmental liabilities;
(F) Any license, royalty Contract or other Contract
with respect to Intellectual Property which, pursuant to the terms
thereof, requires payments by Apogent or any Subsidiary of Apogent in
excess of $1,000,000 per annum;
(G) Any Contract pursuant to which Apogent or any
Subsidiary of Apogent has entered into a partnership or joint venture with
any other Person (other than Apogent or any Subsidiary of Apogent);
(H) Any indenture, mortgage, loan, guarantee or credit
Contract under which Apogent or any Subsidiary of Apogent has outstanding
indebtedness or any outstanding note, bond, indenture or other evidence of
indebtedness for borrowed money or otherwise or any guaranteed
indebtedness for money borrowed by others, in each case, for or
guaranteeing an amount in excess of $2,500,000;
(I) Any Contract under which Apogent or any Subsidiary
of Apogent is (1) a lessee of real property, (2) a lessee of, or holds or
uses, any machinery, equipment, vehicle or other tangible personal
property owned by a third Person, (3) a lessor of real property, or (4) a
lessor of any tangible personal property owned by Apogent or any
Subsidiary of Apogent, in each case which requires annual payments in
excess of $1,000,000;
(J) Any Contract (other than purchase or sale orders
in the ordinary course of business that are terminable or cancelable
without penalty on 90 days' notice or less) under which Apogent or any
Subsidiary of Apogent is a purchaser or supplier of goods and services
which, pursuant to the terms thereof, requires payments by Apogent or any
Subsidiary of Apogent in excess of $1,000,000 per annum;
(K) Any material Contract (including guarantees)
between Apogent or any wholly-owned Subsidiary of Apogent and another
Subsidiary of Apogent that is not wholly-owned by Apogent;
(L) Any Contract which requires payments by Apogent or
any Subsidiary of Apogent in excess of
28
$1,000,000 per annum containing "change of control" or similar provisions;
(M) Any Contract entered into on or after January 1,
2001 relating to the acquisition or disposition of any business or any
assets (whether by merger, sale of stock or assets or otherwise), in an
amount in excess of $5,000,000 (all of which Contracts have been made
available to Fisher prior to the date hereof in the data room maintained
by Apogent's counsel in connection with the transactions contemplated
hereby);
(N) Any Contract (other than Contracts of the type
described in subclauses (A) through (M) above) that involves aggregate
payments by or to Apogent or any Subsidiary of Apogent in excess of
$1,000,000 per annum, other than purchase or sales orders or other
Contracts entered into in the ordinary course of business consistent with
past practice that are terminable or cancelable without penalty on 90
days' notice or less; and
(O) Any Contract the termination or breach of which,
or the failure to obtain consent in respect of, would reasonably be
expected to have a Material Adverse Effect on Apogent and its
Subsidiaries, taken as a whole.
(ii) Schedule. Section 3.1(q)(ii) of the Apogent Disclosure
Schedule sets forth a list of all Apogent Material Contracts as of the date
hereof, except for the Contracts referred to in clause (M) of the foregoing
subsection (i) as having been made available in the data room maintained by
Apogent's counsel in connection with the transactions contemplated hereby. With
respect to the Contracts described in (i) Section 3.1(q)(i)(D), (F), (I), (J),
(L) and (N) of this Agreement, Section 3.1(q)(ii) of the Apogent Disclosure
Schedule sets forth only Contracts which require payments, or in the case of
clause (D) involve obligations, in excess of $2,500,000 and (ii) Section
3.1(q)(i)(N) of this Agreement, Section 3.1(q)(ii) of the Apogent Disclosure
Schedule sets forth only Contracts involving payments to Apogent, or any
Subsidiary of Apogent, in excess of $10,000,000.
(iii) No Breach. All Apogent Material Contracts are valid and
in full force and effect and enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting the rights and remedies of creditors
generally and to general principles of equity (regardless of whether considered
in a proceeding in equity or at law), except to the extent that (A) they have
previously expired in accordance with their terms or (B) the failure to be in
full force and effect, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Apogent and its Subsidiaries,
taken as a whole. Neither Apogent nor any of its Subsidiaries, nor, to Apogent's
Knowledge, any counterparty to any Apogent Material Contract, has violated any
provision of, or committed or failed to perform any act which, with or
29
without notice, lapse of time or both, would constitute a default under the
provisions of any Apogent Material Contract, except in each case for those
violations and defaults which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Apogent and its
Subsidiaries, taken as a whole.
(r) Real Property. Section 3.1(r)(i) of the Apogent Disclosure
Schedule lists all material real property owned in fee by Apogent or any of its
Subsidiaries (the "Apogent Owned Real Property") or leased by Apogent or any of
its Subsidiaries as lessee (the "Apogent Leased Real Property"). Apogent or any
of its Subsidiaries owns good and valid title to the Apogent Owned Real Property
and has valid and enforceable leasehold interests under the leases with respect
to the Apogent Leased Real Property, free and clear of all Liens other than (i)
Permitted Liens (as defined in Section 8.3(m) and (ii) easements, covenants,
rights-of-way and other encumbrances or restrictions, whether recorded or
referred to in an applicable lease or unrecorded, which do not materially impair
the continued use of the property subject thereto as currently used, but in no
event, with respect to clauses (i) and (ii), environmental or Tax Liens,
judgments, lis pendens or any Lien that would render the title to the Apogent
Owned Real Property uninsurable by a reputable title insurance company. All of
the improvements located on any Apogent Owned Real Property or Apogent Leased
Real Property are in good condition and repair (subject to normal wear and tear)
without any structural defects of any kind. Except as set forth in Section
3.1(r)(i) of the Apogent Disclosure Schedule, each material lease with respect
to the Apogent Leased Real Property is valid, unmodified and in full force and
effect, and there are no material subleases with respect to the Apogent Leased
Real Property. Neither any landlord nor Apogent nor any of its Subsidiaries
party to any material lease with respect to the Apogent Leased Real Property is
in monetary or other material default under any such lease.
(s) Apogent Rights Agreement. Apogent has taken all action so that
the execution of this Agreement, the consummation of the Merger and the other
transactions contemplated hereby do not and will not result in the grant of any
rights to any Person under the Apogent Rights Agreement or enable, require or
cause the Apogent Rights to be exercised, distributed or triggered thereunder.
SECTION 3.2 Representations and Warranties of Fisher and Merger Sub.
Except as set forth in (x) the disclosure schedule dated as of the date of this
Agreement and executed and delivered by Fisher and Merger Sub to Apogent
concurrently with or prior to the execution and delivery by Fisher and Merger
Sub of this Agreement (the "Fisher Disclosure Schedule") and (y) the Fisher SEC
Documents filed prior to the date hereof (as defined in Section 4.1(d), Fisher
and Merger Sub represent and warrant to Apogent as set forth in this Article
III. Each disclosure set forth in the Fisher Disclosure Schedule, and any other
information included in the Fisher Disclosure Schedule, is identified by
reference to, or has been grouped under a heading referring to, a specific
individual subsection of this Agreement and shall be deemed to be disclosed
solely for purposes of, and shall qualify and be treated as an exception to,
such subsection, except to the extent that disclosure in one subsection of the
Fisher Disclosure Schedule is specifically referred to in another subsection of
the Fisher Disclosure Schedule by appropriate cross-reference and except to the
extent that the relevance of a disclosure in one subsection of the Fisher
Disclosure Schedule to another subsection of the Fisher Disclosure Schedule is
reasonably apparent. The parties hereby agree that no reference to
30
or disclosure of any item or other matter in the Fisher Disclosure Schedule
shall be construed as an admission or indication that (1) such item or other
matter is material, (2) such item or other matter is required to be referred to
or disclosed in the Fisher Disclosure Schedule or (3) any breach or violation of
Applicable Laws or any Contract exists or has actually occurred.
(a) Organization, Standing and Corporate Power; Charter Documents;
Subsidiaries.
(i) Organization, Standing and Corporate Power. Fisher and
each of its Subsidiaries is a corporation or other legal entity duly
organized, validly existing and in good standing (with respect to
jurisdictions which recognize such concept) under the laws of the
jurisdiction in which it is incorporated or otherwise organized and has
the requisite corporate (or similar) power and authority and all necessary
government approvals to own, lease and operate its properties and to carry
on its business as currently conducted, except for those jurisdictions in
which the failure to have such power, authority or government approvals
and to be so organized, existing or in good standing would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect (as defined in Section 8.3(k)) on Fisher and its
Subsidiaries, taken as a whole. Each of Fisher and each of its
Subsidiaries is duly qualified or licensed to do business and is in good
standing (with respect to jurisdictions which recognize such concept) in
each jurisdiction in which the nature or conduct of its business or the
ownership, leasing or operation of its properties makes such
qualification, licensing or good standing necessary, except for those
jurisdictions where the failure to be so qualified or licensed or to be in
good standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on Fisher and its Subsidiaries,
taken as a whole.
(ii) Charter Documents. Fisher and Merger Sub have delivered
or made available to Apogent prior to the execution of this Agreement
complete and correct copies of (A) the Amended and Restated Certificate of
Incorporation of Fisher (including any certificates of designation), as
amended and currently in effect (the "Fisher Charter"), and the bylaws of
Fisher, as amended and currently in effect (the "Fisher Bylaws," and,
together with the Fisher Charter, the "Fisher Organizational Documents")
and (B) the articles of incorporation and bylaws of Merger Sub and
articles or certificate of incorporation and bylaws or like organizational
documents of each of the Fisher Significant Subsidiaries (as defined in
Section 3.2(a)(iii)), as amended and currently in effect (collectively,
the "Fisher Subsidiary Organizational Documents"), and each such
instrument is in full force and effect. Fisher is not in material
violation of the Fisher Organizational Documents and no Fisher Significant
Subsidiary (as defined below) is in material violation of its Fisher
Subsidiary Organizational Documents.
(iii) Subsidiaries. Section 3.2(a)(iii) of the Fisher
Disclosure Schedule lists all the Subsidiaries of Fisher which, as of the
date of
31
this Agreement, are significant subsidiaries (as defined in Rule 1-02 of
Regulation S-X of the SEC) (the "Fisher Significant Subsidiaries"). Except
as set forth in Section 3.2(a)(iii) of the Fisher Disclosure Schedule, all
the outstanding shares of capital stock of, or other equity interests in,
each Fisher Significant Subsidiary have been validly issued and are fully
paid and nonassessable (subject, in the case of Merger Sub, to Section
180.0622(2)(b) of the WBCL, as judicially interpreted, to the extent
applicable) and are owned directly or indirectly by Fisher, free and clear
of all Liens and free of any other restriction (including preemptive
rights and any restriction on the right to vote, sell or otherwise dispose
of such capital stock or other ownership interests).
(b) Capital Structure.
(i) The authorized capital stock of Fisher consists of
500,000,000 shares of Fisher Common Stock and 15,000,000 shares of
preferred stock, par value $0.01 per share ("Fisher Preferred Stock"). At
the close of business on March 12, 2004, (A) 63,791,017 shares of Fisher
Common Stock were issued and outstanding; (B) 262,645 shares of Fisher
Common Stock were held by Fisher in its treasury; (C) no shares of Fisher
Preferred Stock were issued and outstanding; (D) 6,320,580 shares of
Fisher Common Stock were reserved for issuance upon conversion of Fisher's
2.5% convertible senior notes due 2023; (E) 3,731,340 shares of Fisher
Common Stock were reserved for issuance upon conversion of Fisher's 3.25%
convertible senior notes due 2024; (F) 12,636,983 shares of Fisher Common
Stock were reserved for issuance pursuant to the 1998 Equity and Incentive
Plan, as effective as of May 12, 1998 (the "Fisher 1998 Plan"), the 2001
Equity and Incentive Plan, as effective as of May 16, 2001 (the "Fisher
2001 Plan") and the 2003 Equity and Incentive Plan, as effective as of May
2, 2003 (the "Fisher 2003 Plan") (such plans, collectively, the "Fisher
Stock Plans"), complete and correct copies of which, in each case as
amended, have been filed as exhibits to the Fisher SEC Documents (as
defined in Section 3.2(d)(i)) prior to the date of this Agreement or
delivered to Apogent; and (G) 1,653,585 warrants were issued and
outstanding, with such warrants convertible into 1,653,585 shares of
Fisher Common Stock. Each outstanding share of capital stock of Fisher is
duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights.
(ii) As of the close of business on March 12, 2004,
10,405,815 shares of Fisher Common Stock were subject to issuance pursuant
to outstanding options to acquire shares of Fisher Common Stock ("Fisher
Options") under the Fisher Stock Plans. All shares of Fisher Common Stock
subject to issuance under the Fisher Stock Plans, upon issuance on the
terms and conditions specified in the instruments pursuant to which they
are issuable, will be duly authorized, validly issued, fully paid and
nonassessable and free of preemptive rights. Except as set forth in
Section 3.2(b)(ii) of the Fisher Disclosure Schedule, there are no
commitments or agreements of any character to which Fisher is a party or
otherwise bound obligating Fisher to accelerate the vesting of any Fisher
Option as a result of the Merger (whether alone or upon the occurrence of
32
any additional or subsequent events), and there are no outstanding or
authorized stock appreciation, phantom stock, profit participation or
other similar rights with respect to Fisher.
(iii) No Voting Debt of Fisher is issued or outstanding as of
the date hereof.
(iv) Except as set forth in Section 3.2(b)(iv) of the Fisher
Disclosure Schedule, as of March 12, 2004, there are no securities,
options, warrants, calls, rights, commitments, agreements, arrangements or
undertakings of any kind to which Fisher or any of its Subsidiaries is a
party or by which any of them is bound obligating Fisher or any of its
Subsidiaries to issue, deliver or sell, or cause to be issued, delivered
or sold, additional shares of capital stock, Voting Debt or other voting
securities of Fisher or any of its Subsidiaries, or obligating Fisher or
any of its Subsidiaries to issue, grant, extend or enter into any such
security, option, warrant, call, right, commitment, agreement, arrangement
or undertaking. All outstanding shares of Fisher Common Stock, all
outstanding Fisher Options and all outstanding shares of capital stock of
each Subsidiary of Fisher have been issued and granted in compliance in
all material respects with (A) all applicable securities laws and all
other Applicable Laws and (B) all requirements set forth in applicable
material Contracts.
(v) Since October 1, 2003, and through the date hereof,
except as set forth in Section 3.2(b)(v) or Section 3.2(b)(ii) of the
Fisher Disclosure Schedule, other than (A) issuances of Fisher Common
Stock pursuant to the exercise of Fisher Options granted under Fisher
Stock Plans, (B) repurchases of Fisher Common Stock from employees of
Fisher following their termination pursuant to the terms of their
pre-existing stock option or purchase agreements, (C) issuances of Fisher
Common Stock (consisting of newly-issued shares or shares in treasury) as
contributions of Fisher Common Stock to defined contribution plans
sponsored by Fisher and (D) grants of Fisher Options under Fisher Stock
Plans in the ordinary course of business consistent with past practice,
there has been no change in (1) the outstanding capital stock of Fisher,
(2) the number of Fisher Options outstanding or (3) the number of other
options, warrants or other rights to purchase Fisher capital stock.
(vi) Except as set forth in Section 3.2(b)(ii) or Section
3.2(b)(vi) of the Fisher Disclosure Schedule, neither Fisher nor any of
its Subsidiaries is a party to any currently effective agreement (A)
restricting the purchase or transfer of, (B) relating to the voting of,
(C) requiring the repurchase, redemption or disposition of, or containing
any right of first refusal with respect to, (D) requiring registration of
or (E) granting any preemptive or antidilutive rights with respect to any
capital stock of Fisher or any of its Subsidiaries or any securities of
the type referred to in Section 3.2(b)(iv) hereof.
(vii) Except as set forth in Section 3.2(b)(vii) of the Fisher
Disclosure Schedule, other than its Subsidiaries, as of the date hereof,
Fisher does not directly or indirectly beneficially own any securities or
other beneficial ownership interests in any other entity except for
non-controlling investments made in the ordinary
33
course of business consistent with past practice in entities which are not
individually or in the aggregate material to Fisher and its Subsidiaries,
taken as a whole. There are no outstanding contractual obligations of
Fisher or any of its Subsidiaries to make any loan to, or any equity or
other investment (in the form of a capital contribution or otherwise) in,
any Subsidiary of Fisher or any other Person, other than guarantees by
Fisher of any indebtedness or other obligations of any wholly-owned
Subsidiary of Fisher and other than loans made in the ordinary course
consistent with past practice to employees of Fisher and its Subsidiaries.
(viii) The authorized capital stock of Merger Sub consists of
1,000 shares of common stock, par value $.01 per share, all of which
shares are issued and outstanding. Fisher is the legal and beneficial
owner of all of the issued and outstanding shares of Merger Sub. Merger
Sub was formed at the direction of Fisher prior to the date hereof, solely
for the purposes of effecting the Merger and the other transactions
contemplated hereby. Except as required by or provided for in this
Agreement, Merger Sub (x) does not hold, nor has it held, any assets, (y)
does not have, nor has it incurred, any liabilities and (z) has not
carried on any business activities other than in connection with the
Merger and the transactions contemplated hereby. All of the outstanding
shares of capital stock of Merger Sub have been duly authorized and
validly issued, and are fully paid and nonassessable and not subject to
any preemptive rights.
(ix) Neither Fisher nor any of its Subsidiaries owns any
shares of capital stock of Apogent or any of its Subsidiaries. Neither
Fisher nor Merger Sub is, or will become prior to the Effective Time, a
"significant shareholder" or an "interested stockholder" with respect to
Apogent within the meaning of Sections 180.1130(11) and 180.1140(8),
respectively, of the WBCL.
(c) Authority; Board Approval; Voting Requirements; No Conflict;
Required Filings and Consents.
(i) Authority. Each of Fisher and Merger Sub has all
requisite corporate power and authority to enter into this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
Fisher and Merger Sub, and the consummation by Fisher and Merger Sub of
the transactions contemplated hereby, have been duly and validly
authorized by all necessary corporate action on the part of Fisher and
Merger Sub, and no other corporate proceedings on the part of Fisher or
Merger Sub and no stockholder or shareholder votes, as applicable, are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby, other than, with respect to approval of the Stock
Issuance, the Fisher Stockholder Approval (as defined in Section
3.2(c)(iii)). This Agreement has been duly executed and delivered by
Fisher and Merger Sub. Assuming the due authorization, execution and
delivery of this Agreement by Apogent, this Agreement constitutes the
legal, valid and binding obligation of each of Fisher and Merger Sub,
enforceable against Fisher and Merger Sub in accordance with its terms,
subject to applicable bankruptcy,
34
insolvency, reorganization, moratorium or other laws relating to or
affecting the rights and remedies of creditors generally and to general
principles of equity (regardless of whether considered in a proceeding in
equity or at law).
(ii) Board Approval. The Board of Directors of Fisher has (A)
determined that this Agreement, the Merger and the Stock Issuance are
advisable and fair to and in the best interests of Fisher and its
shareholders, (B) duly approved and adopted this Agreement, the Merger,
the Stock Issuance and the other transactions contemplated hereby, which
adoption has not been rescinded or modified, (C) resolved (subject to
Section 4.2(d)) to recommend the Stock Issuance to its stockholders for
approval and (D) subject to Section 5.1(b), directed that the Stock
Issuance be submitted to its stockholders for consideration in accordance
with this Agreement.
(iii) Voting Requirements. The affirmative vote of the holders
of a majority of the outstanding shares of Fisher Common Stock present in
person or by proxy in favor of the Stock Issuance at a meeting duly called
and held for approval of the Stock Issuance (the "Fisher Stockholder
Approval") is the only vote of the holders of any class or series of
Fisher capital stock necessary to approve the Stock Issuance, and no other
vote of the holders of any class or series of Fisher capital stock is
necessary to approve the Stock Issuance.
(iv) No Conflict. Except as set forth in Section 3.2(c)(iv)
of the Fisher Disclosure Schedule, the execution and delivery of this
Agreement by Fisher and Merger Sub do not, and the consummation by Fisher
and Merger Sub of the transactions contemplated hereby and compliance by
Fisher and Merger Sub with the provisions of this Agreement will not,
conflict with, result in any violation or breach of or change of control
or default (with or without notice or lapse of time, or both) under,
require any consent, waiver or approval under, give rise to any right of
termination or cancellation or acceleration of any right or obligation or
loss of a benefit under, or result in the creation of any Lien upon any of
the properties or assets of Fisher or any of its Subsidiaries or any
restriction on the conduct of Fisher's business or operations under, (A)
the Fisher Organizational Documents or the Fisher Subsidiary
Organizational Documents, (B) any Contract or Fisher Permit (as defined in
Section 3.2(g)(i)) or (C) subject to the governmental filings and other
matters referred to in Section 3.2(c)(v), any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Fisher or any of
its Subsidiaries or their respective properties or assets, other than, in
the case of clauses (B) and (C), any such conflicts, violations, defaults,
rights, losses, restrictions or Liens, or failure to obtain consents,
waivers or approvals, which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole, or Merger Sub.
(v) Required Filings or Consents. No consent, approval,
order or authorization or permit of, action by or in respect of,
registration,
35
declaration or filing with, or notification to, any Governmental Entity or
any other Person is required to be made, obtained, performed or given to
or with respect to Fisher or any of its Subsidiaries in connection with
the execution and delivery of this Agreement by Fisher or Merger Sub, the
approval of the Stock Issuance or the consummation by Fisher or Merger Sub
of the transactions contemplated hereby, except for:
(A) the filing of a pre-merger notification and report form by Fisher
and Merger Sub under the HSR Act and any applicable filings or
notifications under the antitrust, competition or similar laws of
any foreign jurisdiction;
(B) the filing with the SEC of:
(1) the Form S-4 (including the Joint Proxy Statement);
(2) such reports and filings under Section 13(a), 13(d), 14(a),
15(d) or 16(a) of the Exchange Act and the rules and
regulations thereunder as may be required in connection with
this Agreement and the transactions contemplated hereby;
(C) the filing of the Articles of Merger with the DFI and appropriate
documents with the NYSE and the relevant authorities of other states
in which Fisher or Merger Sub are qualified to do business and such
filings as may be necessary in accordance with state securities or
other "blue sky" laws;
(D) the Fisher Stockholder Approval;
(E) the consents, approvals, orders or authorizations set forth in
Section 3.2(c)(v) of the Fisher Disclosure Schedule; and
(F) other such consents, approvals, orders or authorizations, the
failure of which to be made or obtained, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect on Fisher and its Subsidiaries, taken as a whole, or
Merger Sub.
(d) SEC Documents; Financial Statements.
(i) Fisher has filed with the SEC all registration
statements, prospectuses, reports, schedules, forms, statements,
certifications and other documents (including exhibits and all other
information incorporated by reference therein) presently required to be so
filed by Fisher since October 1, 2002 (excluding the Form S-4 and the
Joint Proxy Statement, the "Fisher SEC
36
Documents"). As of their respective dates, the Fisher SEC Documents
complied in all material respects with the requirements of the Securities
Act or the Exchange Act, as the case may be, to the extent in effect, SOX
and the rules and regulations of the SEC promulgated thereunder applicable
to such Fisher SEC Documents, and none of the Fisher SEC Documents, when
filed, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading, except to the extent corrected by a
subsequently filed Fisher SEC Document filed with the SEC prior to the
date hereof. No Subsidiary of Fisher is subject to the periodic reporting
requirements of the Exchange Act.
(ii) Each of the principal executive officer of Fisher and
the principal financial officer of Fisher (or each former principal
executive officer of Fisher and each former principal financial officer of
Fisher, as applicable) has made all certifications required by Rule 13a-14
or 15d-14 under the Exchange Act or Sections 302 and 906 of SOX and the
rules and regulations of the SEC promulgated thereunder with respect to
the Fisher SEC Documents. For purposes of the preceding sentence,
"principal executive officer" and "principal financial officer" shall have
the meanings given to such terms in SOX. Neither Apogent nor any of its
Subsidiaries has outstanding, or has arranged any outstanding, "extensions
of credit" to directors or executive officers within the meaning of
Section 402 of SOX.
(iii) The financial statements of Fisher included in the
Fisher SEC Documents, including each Fisher SEC Document filed after the
date hereof until the Effective Time, comply, as of their respective dates
of filing with the SEC, in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with GAAP (except,
in the case of unaudited statements, as permitted by Form 10-Q or 8-K of
the SEC) applied on a consistent basis during the periods involved (except
as may be indicated in the notes thereto) and fairly present the
consolidated financial position of Fisher and its consolidated
Subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal year-end audit adjustments which are
not material). The financial books and records of Fisher and its
Subsidiaries, taken as a whole, are true and correct in all material
respects.
(iv) Except as reflected or reserved against in the balance
sheet of Fisher, dated December 31, 2003, included in the Form 10-K filed
by Fisher with the SEC on March 12, 2004 (including the notes thereto, the
"Fisher Balance Sheet") and except as set forth in Section 3.2(d)(iv) of
the Fisher Disclosure Schedule, neither Fisher nor any of its Subsidiaries
has any liabilities or obligations of any nature (whether absolute,
accrued, known or unknown, contingent or otherwise) nor, to the Knowledge
of Fisher, does any basis exist
37
therefor, other than (A) liabilities or obligations incurred since January
1, 2004 in the ordinary course of business consistent with past practice
which would not reasonably be expected to have a Material Adverse Effect
on Fisher and its Subsidiaries, taken as a whole, (B) liabilities or
obligations under the Fisher Material Contracts set forth in Section
3.2(q)(ii) of the Fisher Disclosure Schedule, (C) liabilities or
obligations incurred pursuant to Contracts entered into after the date
hereof not in violation of this Agreement and (D) liabilities or
obligations incurred pursuant to this Agreement or the transactions
contemplated hereby.
(v) Except as set forth in Section 3.2(d)(v) of the Fisher
Disclosure Schedule, neither Fisher nor any of its Subsidiaries is a party
to, or has any commitment to become a party to, any joint venture,
off-balance sheet partnership or any similar contract or arrangement
(including without limitation any contract or arrangement relating to any
transaction or relationship between or among Fisher and any of its
Subsidiaries, on the one hand, and any unconsolidated Affiliate, including
without limitation any structured finance, special purpose or limited
purpose entity or Person, on the other hand, or any "off-balance sheet
arrangement" (as defined in Item 303(a) of Regulation S of the SEC)),
where the result, purpose or intended effect of such contract or
arrangement is to avoid disclosure of any material transaction involving,
or material liabilities of, Fisher or any of its Subsidiaries in Fisher's
or such Subsidiary's published financial statements or other Fisher SEC
Documents.
(vi) No "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) filed as an exhibit to the Fisher
Form 10-K has been amended or modified, except for amendments or
modifications permitted under this Agreement which have been filed as an
exhibit to a subsequently dated Fisher SEC Document or are not required to
be filed with the SEC.
(e) Information Supplied. None of the information supplied or to
be supplied by or on behalf of Fisher or Merger Sub for inclusion or
incorporation by reference in (i) the Form S-4 will, at the time the Form S-4
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) the Joint
Proxy Statement will, at the date it is first mailed to Fisher's stockholders or
at the time of the Fisher Stockholders' Meeting, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Joint Proxy
Statement and the Form S-4 will comply as to form in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations thereunder. Notwithstanding the foregoing provisions of this Section
3.2(e), no representation or warranty is made by Fisher with respect to
information or statements made or incorporated by reference in the Form S-4 or
the Joint Proxy Statement which were not supplied by or on behalf of Fisher.
38
(f) Absence of Certain Changes or Events.
(i) Except as set forth in Section 3.2(f) of the
Fisher Disclosure Schedule, since January 1, 2004 through the date hereof,
except as and to the extent disclosed in the Fisher SEC Documents filed
prior to the date of this Agreement and except for liabilities incurred
pursuant to this Agreement or the transactions contemplated hereby:
(A) Fisher and its Subsidiaries have conducted their business only
in the ordinary course consistent with past practice;
(B) there has not been any split, combination or reclassification
of any of Fisher's capital stock or any declaration, setting
aside or payment of any dividend on, or other distribution
(whether in cash, stock or property) in respect of, in lieu of
or in substitution for, shares of Fisher's capital stock;
(C) except as required by a change in GAAP, there has not been any
change in accounting methods, principles or practices by
Fisher; and
(D) there has not been any action taken by Fisher or any of its
Subsidiaries that, if taken during the period from the date of
this Agreement through the Effective Time, would constitute a
breach of Section 4.1(b), other than actions in connection
with entering into this Agreement.
(ii) Since January 1, 2004 through the date hereof,
there have not been any changes, circumstances or events that,
individually or in the aggregate, have had, or would reasonably be
expected to have, a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole.
(g) Compliance with Applicable Laws; Permits; Litigation.
(i) Fisher, its Subsidiaries and employees hold all
authorizations, permits, licenses, certificates, easements, concessions,
franchises, variances, exemptions, orders, consents, registrations,
approvals and clearances of all Governmental Entities (including all
authorizations under the FDCA and the regulations of the FDA promulgated
thereunder) and third Persons which are required for Fisher and its
Subsidiaries to own, lease and operate its properties and other assets and
to carry on their respective businesses in the manner described in the
Fisher SEC Documents filed prior to the date hereof and as they are being
conducted as of the date hereof (the "Fisher Permits"), and all Fisher
Permits are valid and in full force and effect, except where the failure
to have, or the suspension or cancellation of, or the failure to be valid
or in full force and effect of, any such Fisher Permits, individually or
in the aggregate, would not
39
reasonably be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole.
(ii) Except as set forth in Section 3.2(g)(ii) of the
Fisher Disclosure Schedule, Fisher and its Subsidiaries are, and have been
at all times since October 1, 2002, in compliance with the terms of the
Fisher Permits and all Applicable Laws relating to Fisher and its
Subsidiaries or their respective businesses, assets or properties, except
where the failure to be in compliance with the terms of the Fisher Permits
or such Applicable Laws, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole. Except as set forth in Section 3.2(g)(ii)
of the Fisher Disclosure Schedule, since October 1, 2002, neither Fisher
nor any of its Subsidiaries has received any written notification from any
Governmental Entity (A) asserting that Fisher or any of its Subsidiaries
is not in compliance with, or at any time since such date has failed to
comply with, Applicable Laws (except for any such lack of compliance
which, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on Fisher and its Subsidiaries, taken as
a whole) or (B) threatening to revoke any Permit (except for any such
revocation which, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole) nor, to the Knowledge of Fisher, does any
basis exist therefore. As of the date hereof, no material investigation or
review by any Governmental Entity is pending or, to the Knowledge of
Fisher, has been threatened in writing against Fisher or any of its
Subsidiaries.
(iii) Except with respect to Section 404 of SOX, Fisher
is, and has been, in compliance in all material respects with the
provisions of SOX applicable to it on or prior to the date hereof and has
implemented such programs and has taken all reasonable steps necessary to
ensure Fisher's future compliance (not later than the relevant statutory
and regulatory deadlines therefor) with all provisions of SOX which shall
become applicable to Fisher after the date hereof.
(iv) As of the date hereof, except as and to the extent
disclosed in the Fisher SEC Documents filed prior to the date of this
Agreement, including the notes to the financial statements included
therein, no action, audit, demand, claim, suit, proceeding, requirement or
investigation by any Governmental Entity, and no suit, action, mediation,
arbitration or proceeding by any Person, against or affecting Fisher or
any of its Subsidiaries or any of their respective properties, including
Intellectual Property, is pending or, to the Knowledge of Fisher,
threatened which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect on Fisher and its Subsidiaries,
taken as a whole, or Merger Sub.
(v) Neither Fisher nor any of its Subsidiaries is, or
at any time since October 1, 2002 has been, subject to any outstanding
order, injunction or decree which, individually or in the aggregate, has
had or would reasonably be
40
expected to have a Material Adverse Effect on Fisher and its Subsidiaries,
taken as a whole.
(h) Labor and Other Employment Matters.
(i) As of the date hereof, except as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on Fisher and its Subsidiaries, taken as a whole,
or as set forth in Section 3.2(h)(i) of the Fisher Disclosure Schedule,
(A) no work stoppage, slowdown, lockout, labor strike, material
arbitrations or other material labor disputes against Fisher or any of its
Subsidiaries are pending or, to the Knowledge of Fisher, threatened, (B)
no unfair labor practice charges, grievances or complaints are pending or,
to the Knowledge of Fisher, threatened against Fisher or any of its
Subsidiaries, (C) neither Fisher nor any of its Subsidiaries is delinquent
in payments to any of its employees for any wages, salaries, commissions,
bonuses or other direct compensation for any services performed for it or
amounts required to be reimbursed to such employees, (D) neither Fisher
nor any of its Subsidiaries is liable for any payment to any trust or
other fund or to any Governmental Entity, with respect to unemployment
compensation benefits, social security or other benefits or obligations
for employees, (E) no employee of Fisher at the officer level or above has
given written notice to Fisher or any of its Subsidiaries that any such
employee intends to terminate his or her employment with Fisher or any of
its Subsidiaries, (F) to the Knowledge of Fisher, no employee of Fisher or
any of its Subsidiaries is in any respect in violation of any term of any
employment contract, nondisclosure agreement, common law nondisclosure
obligations, non-competition agreement, or any restrictive covenant to a
former employer relating to the right of any such employee to be employed
by Fisher or any of its Subsidiaries because of the nature of the business
conducted or presently proposed to be conducted by Fisher or any of its
Subsidiaries or to the use of trade secrets or proprietary information of
others,(G) neither Fisher nor any of its Subsidiaries is a party to, or
otherwise bound by, any consent decree with, or citation by, any
Governmental Entity relating to employees or employment practices and (H)
Fisher and its Subsidiaries are in compliance with all applicable laws,
agreements, contracts, policies, plans and programs relating to
employment, employment practices, compensation, benefits, hours, terms and
conditions of employment and the termination of employment, including but
not limited to any obligations pursuant to the Worker Adjustment and
Retraining Notification Act of 1988.
(ii) Except as set forth in Section 3.2(h)(ii) of the
Fisher Disclosure Schedule, as of the date hereof,
(A) neither Fisher nor any of its Subsidiaries
is a party to, or otherwise bound by, any collective bargaining
agreement or any other agreement, work rules or practices with a
labor union, labor
41
organization or works council, nor are any such agreements, work
rules or practices presently being negotiated;
(B) none of the employees of Fisher or any of
its Subsidiaries is represented by any labor union, labor
organization or works council in his or her capacity as an employee
of Fisher or any of its Subsidiaries;
(C) no labor union, labor organization or works
council or group of employees of Fisher or any of its Subsidiaries
has made a pending demand for recognition or certification to Fisher
or any of its Subsidiaries, and there are no representation or
certification proceedings or petitions seeking a representation
proceeding presently pending or, to the Knowledge of Fisher,
threatened to be brought or filed with the NLRB or any other labor
relations tribunal or authority; and
(D) to the Knowledge of Fisher, no labor union,
labor organization or works council is seeking to organize any
employees of Fisher or any of its Subsidiaries.
(i) Benefit Plans.
(i) Section 3.2(i)(i)(A) of the Fisher Disclosure
Schedule sets forth a true and complete list of each Benefit Plan with or
for the benefit of any current or former employee, officer or director of
Fisher or any of its Subsidiaries or ERISA Affiliates or with respect to
which Fisher or any of its Subsidiaries or ERISA Affiliates have any
obligations or liabilities (the "Fisher Benefit Plans"). With respect to
the Fisher Benefit Plans, no event has occurred, and there exists no
condition or set of circumstances, which would reasonably be expected to
have a Material Adverse Effect on Fisher and its Subsidiaries, taken as a
whole, under ERISA, the Code or any other Applicable Laws. Neither Fisher,
nor any of its Subsidiaries, nor, to the Knowledge of Fisher, any other
Person, has any express or implied commitment, whether legally enforceable
or not, to modify, change or terminate any Fisher Benefit Plan, other than
with respect to a modification, change or termination required by ERISA or
the Code or any other Applicable Laws. Except as set forth in Section
3.2(i)(i)(B) of the Fisher Disclosure Schedule, Fisher has delivered or
made available to Apogent true, correct and complete copies of all Fisher
Benefit Plans (or, if not so delivered, has delivered or made available to
Apogent a written summary of their material terms) and, with respect
thereto, all amendments, trust agreements, insurance Contracts, other
funding vehicles, determination letters issued by the Internal Revenue
Service, the most recent annual reports (Form 5500 series) filed with the
Internal Revenue Service and the most recent actuarial report or other
financial statement relating to such Fisher Benefit Plan.
42
(ii) Each Fisher Benefit Plan has been, in all material
respects, administered and operated in accordance with its terms, with the
applicable provisions of ERISA, the Code and other Applicable Laws and
with the terms of all applicable collective bargaining agreements. Each
Fisher Benefit Plan, including any material amendments thereto, that is
capable of Approval has received such Approval (or there remains a period
of time in which to obtain such Approval retroactive to the date of any
material amendment that has not previously received such Approval), and no
event has occurred which would reasonably be expected to result in the
revocation of such Approval or the imposition of material sanctions by
such authorities. Without limiting the generality of the foregoing, each
Fisher Benefit Plan that is intended to be qualified under Section 401(a)
of the Code has obtained a favorable determination letter from the
Internal Revenue Service that the Fisher Benefit Plan is so qualified and
all related trusts are exempt from U.S. federal income taxation under
Section 501(a) of the Code, and, to the Knowledge of Fisher, nothing has
occurred, whether by action or by failure to act, which would cause the
loss of such qualification or exemption.
(iii) Except as set forth in Section 3.2(i)(iii) of the
Fisher Disclosure Schedule, to the Knowledge of Fisher, no oral or written
representation or commitment with respect to any material aspect of any
Fisher Benefit Plan has been made to an employee or former employee of
Fisher or any of its Subsidiaries by an authorized Fisher employee that is
not materially in accordance with the written or otherwise pre-existing
terms and provisions of such Fisher Benefit Plans. To the Knowledge of
Fisher, neither Fisher nor any of its Subsidiaries has entered into any
agreement, arrangement or understanding, whether written or oral, with any
trade union, works council or other employee representative body or any
material number or category of its employees which would prevent, restrict
or materially impede the implementation of any layoff, redundancy,
severance or similar program within its or their respective workforces (or
any part of them).
(iv) There are no material unresolved claims or
disputes under the terms of, or in connection with, any Fisher Benefit
Plan (other than routine undisputed claims for benefits), and no action,
legal or otherwise, has been commenced or threatened with respect to any
material claim or otherwise in connection with a Fisher Benefit Plan.
(v) Except as set forth in Section 3.2(i)(v) of the
Fisher Disclosure Schedule, with respect to each Funded Retirement Plan of
Fisher or any of its Subsidiaries, the aggregate value of the assets of
such Funded Retirement Plan is equal to or greater than the aggregate
value of its liabilities assessed on an ongoing and terminated basis and
calculated in accordance with the actuarial methods and assumptions used
in such valuation pursuant to such Funded Retirement Plan and Applicable
Laws and GAAP. None of Fisher or any ERISA Affiliate of Fisher has
incurred, or is reasonably expected to incur, any
43
liability to a Funded Retirement Plan under Title IV of ERISA (other than
for contributions not yet due) or to the Pension Benefit Guaranty
Corporation (other than for payment of premiums not yet due) that, when
aggregated with other such liabilities, would reasonably be expected to
result in a material liability of Fisher and its Subsidiaries, taken as a
whole, which liability has not been fully paid.
(vi) Section 3.2(i)(vi) of the Fisher Disclosure
Schedule sets forth a true and complete list of each Multiemployer Plan to
which Fisher or any ERISA Affiliate of Fisher contributes or is required
to contribute, or to which, or with respect to which, Fisher or any ERISA
Affiliate of Fisher has any material liability.
(vii) Except as set forth in Section 3.2(i)(vii) of the
Fisher Disclosure Schedule, no Fisher Benefit Plan provides health
benefits (whether or not insured), with respect to employees or former
employees of Fisher or any of its Subsidiaries after retirement or other
termination of service (other than coverage mandated by Applicable Laws or
benefits, the full cost of which is borne by the employee or former
employee).
(viii) Except as set forth in Section 3.2(i)(viii)(A) of
the Fisher Disclosure Schedule, neither the negotiation and execution of
this Agreement nor the consummation of the transactions contemplated
hereby will (either alone or upon the occurrence of any additional or
subsequent events) constitute an event under any Fisher Benefit Plan that
will or may result in any payment (whether of severance pay or otherwise),
acceleration of payment, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligation to fund benefits with
respect to any employee or former employee of Fisher or any of its
Subsidiaries. Except as set forth in Section 3.2(i)(viii)(B) of the Fisher
Disclosure Schedule, there is no contract, agreement, plan or arrangement
with an employee or former employee of Fisher to which Fisher or any of
its Subsidiaries is a party as of the date of this Agreement that,
individually or collectively and as a result of the transaction
contemplated hereby (whether alone or upon the occurrence of any
additional or subsequent events) or otherwise, would reasonably be
expected to give rise to the payment of any amount that would not be
deductible pursuant to Sections 280G or 162(m) of the Code.
(j) Taxes.
(i) Each of Fisher and its Subsidiaries has (A) duly
and timely filed (or there have been filed on its behalf) all material Tax
Returns required to be filed by it (taking into account all applicable
extensions) with the appropriate Tax Authority and all such Tax Returns
are true, correct and complete in all material respects, (B) duly paid in
full or made provision in accordance with GAAP (or there has been paid or
provision has been made on its behalf) for the payment of all material
Taxes for all periods ending through the date hereof and
44
(C) complied in all material respects with all Applicable Laws relating to
the payment and withholding of Taxes.
(ii) There are no material Liens for Taxes upon any
property or assets of Fisher or any of its Subsidiaries, except for liens
for Taxes not yet due and payable and for which adequate reserves have
been provided in accordance with GAAP in the most recent financial
statements contained in the Fisher SEC Documents filed prior to the date
of this Agreement.
(iii) The most recent financial statements contained in
the Fisher SEC Documents reflect an adequate reserve in accordance with
GAAP for all Tax liabilities of Fisher and its Subsidiaries for all
taxable periods and portions thereof accrued through the date of such
financial statements.
(iv) Except as set forth in Section 3.2(j)(iv) of the
Fisher Disclosure Schedule, there is no audit, examination, deficiency,
refund litigation, proposed adjustment or matter in controversy with
respect to any Taxes or Tax Return of Fisher or any of its Subsidiaries
which, if determined adversely, would be expected to result in a material
Tax deficiency. Neither Fisher nor any of its Subsidiaries has received
written notice of any claim made by a Governmental Entity in a
jurisdiction where Fisher or any of its Subsidiaries, as applicable, does
not file a Tax Return, that Fisher or such Subsidiary is or may be subject
to taxation by that jurisdiction.
(v) The material income Tax Returns of Fisher and each
of its Subsidiaries, including any predecessors thereof, have been
examined by the applicable Tax Authority (or the applicable statutes of
limitations for the assessment of income Taxes for such periods have
expired) for all periods through and including December 31, 2001, and no
material deficiencies were asserted as a result of such examinations which
have not been resolved and fully paid or accrued as a liability on the
most recent financial statements contained in the Fisher SEC Documents.
(vi) Except as set forth in Section 3.2(j)(vi) of the
Fisher Disclosure Schedule, there are no outstanding requests, agreements,
consents or waivers to extend the statutory period of limitations
applicable to the assessment of any Taxes or deficiencies against Fisher
or any of its Subsidiaries, and no power of attorney granted by either
Fisher or any of its Subsidiaries with respect to any Taxes is currently
in force.
(vii) Except as set forth in Section 3.2(j)(vii) of the
Fisher Disclosure Schedule, neither Fisher nor any of its Subsidiaries is
a party to any agreement providing for the allocation, indemnification or
sharing of Taxes (other than agreements solely between Fisher and its
Subsidiaries), and neither Fisher nor any of its Subsidiaries (A) has been
a member of an affiliated group (or similar state, local or foreign filing
group) filing a consolidated income Tax
45
Return (other than a group the common parent of which is Fisher) or (B)
has any liability for the Taxes of any Person (other than Fisher or any of
its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any
similar provision of state, local or foreign law), as a transferee or
successor, by contract or otherwise.
(viii) Fisher and each of its Subsidiaries has delivered
or made available to Apogent complete copies of all material income Tax
Returns of Fisher and each of its Subsidiaries, including any predecessors
thereof, for taxable years ending between January 1, 1999 and December 31,
2003, excepting such Tax Returns as have not been filed for the taxable
year ending December 31, 2003 pursuant to appropriate extensions with
respect thereto.
(ix) Except as set forth in Section 3.1(j)(ix) of the
Fisher Disclosure Schedule, neither Fisher nor any of its Subsidiaries has
(A) agreed to make nor is it required to make any material adjustment
under Section 481(a) of the Code by reason of a change in accounting
method or otherwise; (B) constituted either a "distributing corporation"
or a "controlled corporation" (within the meaning of Section 355(a)(1)(A)
of the Code) in a distribution of stock qualifying for tax-free treatment
under Section 355 of the Code (I) in the two years prior to the date of
this Agreement or (II) in a distribution which could otherwise constitute
part of a "plan" or "series of related transactions" (within the meaning
of Section 355(e) of the Code) in connection with the Merger; or (C) taken
(or caused to be taken) any action or knows of any fact, agreement, plan
or other circumstance that would reasonably be expected to prevent the
Merger from qualifying as a "reorganization" within the meaning of Section
368(a) of the Code.
(x) Fisher is not, and has not been, a United States
real property holding corporation (as defined in Section 897(c)(2) of the
Code) during the applicable period specified in Section 897(c)(1)(A)(ii)
of the Code.
(k) Interested Party Transactions. Since the date of the
Fisher Balance Sheet, no event has occurred that would be required to be
reported as a Certain Relationship or Related Transaction pursuant to Statement
of Financial Accounting Standards No. 57 or Item 404 of Regulation S-K of the
SEC.
(l) Environmental Matters. Except as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect on
Fisher and its Subsidiaries, taken as a whole, (i) the operations of Fisher and
its Subsidiaries are, and at all times since October 1, 2002 have been, in
compliance with all applicable Environmental Laws, including possession and
compliance with the terms of all licenses required by Environmental Laws, (ii)
there are no pending or, to the Knowledge of Fisher, threatened suits, actions,
investigations or proceedings under or pursuant to Environmental Laws against
Fisher or any of its Subsidiaries or involving any real property currently or,
to the Knowledge of Fisher, formerly owned, operated or leased or other sites at
which Hazardous Materials were disposed of, or allegedly disposed of, by Fisher
or any of its Subsidiaries, (iii) Fisher and its Subsidiaries are not
46
subject to and have received no written allegations of any Environmental
Liabilities, and no facts, circumstances or conditions relating to, arising
from, associated with or attributable to any real property currently or, to the
Knowledge of Fisher, formerly owned, operated or leased by Fisher or any of its
Subsidiaries or operations thereon has resulted in or would reasonably be
expected to result in Environmental Liabilities, and (iv) all real property
owned or operated by Fisher or any of its Subsidiaries is free of contamination
from Hazardous Materials that would have an adverse effect on human health or
the environment.
(m) Intellectual Property. Except as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect on
Fisher and its Subsidiaries, taken as a whole, (i) Fisher or a Subsidiary of
Fisher (A) owns and is listed in the records of the appropriate United States,
state or foreign registry as the current owner of record for each application
and registration of Intellectual Property or (B) has a legally enforceable right
to use (in each case, free and clear of any Liens) all Intellectual Property
used in or necessary for the conduct of its business as currently conducted,
including without limitation all patents and patent applications and all
trademark registrations and trademark applications; (ii) except as set forth in
Section 3.1(m)(ii) of the Fisher Disclosure Schedule, to the Knowledge of
Fisher, the conduct of the business of Fisher and its Subsidiaries as currently
conducted does not infringe on or misappropriate, either directly or indirectly
(such as through contributory infringement or inducement to infringe), the
Intellectual Property rights of any Person, and the use by Fisher or any of its
Subsidiaries of any Intellectual Property is, to the Knowledge of Fisher, in
accordance with any applicable grant, license, agreement, instrument or other
arrangement pursuant to which Fisher or any Affiliate acquired the right to use
such Intellectual Property; (iii) to the Knowledge of Fisher, no Person is
misappropriating, infringing, diluting or otherwise violating any right of
Fisher or any of its Subsidiaries with respect to any Intellectual Property
owned or used by Fisher or any of its Subsidiaries, and no such claims, suits,
arbitrations or other adversarial proceedings have been brought or threatened
against any Person by Fisher or any of its Subsidiaries; (iv) to the Knowledge
of Fisher, except as set forth in Section 3.2(m)(iv) of the Fisher Disclosure
Schedule, neither Fisher nor any of its Subsidiaries has received written notice
by any Person of any pending or threatened claim, suit, action, mediation,
arbitration, order or other adversarial proceeding (A) alleging infringement (or
other violation) by Fisher or any of its Subsidiaries of Intellectual Property
or other rights of any Person or (B) challenging Fisher's or any of its
Subsidiaries' ownership or use of, or the validity, enforcement, registrability
or maintenance of, any Intellectual Property owned or used by Fisher or any of
its Subsidiaries, and, to the Knowledge of Fisher, no Intellectual Property
owned or used by Fisher or any of its Subsidiaries is being used or enforced in
a manner that would reasonably be expected to result in the abandonment,
cancellation or unenforceability of such Intellectual Property; (v) to the
Knowledge of Fisher, the Intellectual Property owned or used by Fisher or any of
its Subsidiaries (A) has been duly maintained, (B) is subsisting, in full force
and effect, (C) is valid and enforceable, (D) has not expired, been cancelled or
abandoned and (E) all maintenance, registration and renewal fees necessary to
preserve the rights of Fisher in connection with such Intellectual Property have
been paid in a timely manner, and there are no actions that must be taken by
Fisher or any of its Subsidiaries within 90 days from the date hereof, including
the payment of any registration, maintenance or renewal fees or the filing with
the United States Patent and Trademark Office or such other appropriate U.S. or
foreign office or similar administrative agency of documents, applications or
certificates for the purposes of obtaining,
47
maintaining, perfecting, preserving or renewing any rights in the registered or
applied-for Intellectual Property; (vi) to the Knowledge of Fisher, except as
set forth in Section 3.2(m)(vi) of the Fisher Disclosure Schedule, neither
Fisher nor any of its Subsidiaries has entered into any consents, judgments,
orders, indemnifications, forbearances to sue, settlement agreements, licenses
or other arrangements which (A) restrict Fisher's or any of its Subsidiaries'
right to use any Intellectual Property, (B) restrict Fisher's or any of its
Subsidiaries' businesses in order to accommodate a third Person's Intellectual
Property rights, (C) permit third parties to use any Intellectual Property owned
or controlled by Fisher or any of its Subsidiaries or (D) reasonably would be
expected to provide a third Person a defense to patent infringement in
connection with any Intellectual Property owned or used by Fisher; (vii) to the
Knowledge of Fisher, Fisher and each of its Subsidiaries has implemented
commercially reasonable measures to maintain the confidentiality of the
Intellectual Property and all other property used in the business of Fisher or
any of its Subsidiaries as presently conducted; and (viii) each current and
former employee of Fisher or any of its Subsidiaries who has contributed to or
participated in research and development activities will not, after giving
effect to the transactions contemplated herein, own or retain any rights to use
any of the Intellectual Property owned or used by Fisher or any of its
Subsidiaries.
(n) State Takeover Statutes. Article Sixteenth of the Fisher
Charter provides that Fisher has expressly elected not to be governed by Section
203 of the DGCL and, therefore, such Section 203 will not apply to the Merger,
the Stock Issuance or the other transactions contemplated hereby. Assuming
compliance by Apogent with its obligations hereunder and the accuracy of the
representations and warranties made by Apogent herein, no other state
antitakeover statute or regulation, nor any takeover-related provision in the
Fisher Organizational Documents, would (i) prohibit or restrict Fisher's or
Merger Sub's ability to perform its obligations under this Agreement, any
related agreement or the Articles of Merger or its ability to consummate the
transactions contemplated hereby and thereby, (ii) have the effect of
invalidating or voiding this Agreement or the Articles of Merger, or any
provision hereof or thereof, or (iii) subject Fisher or Merger Sub to any
impediment or condition in connection with the exercise of any of its rights
under this Agreement or the Articles of Merger.
(o) Brokers. Except for fees payable to Goldman, Sachs & Co.
("Goldman Sachs") and Lazard Freres & Co. LLC ("Lazard"), no broker, investment
banker, financial advisor or other Person, is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Fisher or Merger Sub.
(p) Opinion of Financial Advisor. Fisher has received
opinions of each of its financial advisors, Goldman Sachs and Lazard, dated the
date of this Agreement, to the effect that, as of such date, the Exchange Ratio
is fair, from a financial point of view, to Fisher.
(q) Material Contracts.
(i) For purposes of this Agreement, "Fisher Material
Contract" shall mean:
48
(A) Any employment, severance, consulting or
other Contract with an employee or former employee, officer or
director of Fisher or any Subsidiary of Fisher (other than any
unwritten Contract for the employment of any such employee or former
employee implied at law) which will require the payment of amounts
by Fisher or any Subsidiary of Fisher, as applicable, after the date
hereof in excess of $250,000 per annum;
(B) Any collective bargaining Contract with any
labor union;
(C) Any Contract for capital expenditures or the
acquisition or construction of fixed assets which requires aggregate
future payments in excess of $2,500,000;
(D) Any Contract containing covenants of Fisher
or any Subsidiary of Fisher (1) to indemnify or hold harmless
another Person or group of Persons, unless such indemnification or
hold harmless obligation to such Person, or group of Persons, as the
case may be, would not reasonably be expected to exceed a maximum of
$1,000,000 (except for product warranty obligations in Contracts for
the sale of goods in the ordinary course of business) or (2) not to
(or otherwise restrict or limit the ability of Fisher or any of its
Subsidiaries to) compete in any line of business or geographic area;
(E) Any Contract requiring aggregate future
payments or expenditures in excess of $2,500,000 and relating to
cleanup, abatement, remediation or similar actions in connection
with environmental liabilities;
(F) Any license, royalty Contract or other
Contract with respect to Intellectual Property which, pursuant to
the terms thereof, requires payments by Fisher or any Subsidiary of
Fisher in excess of $1,000,000 per annum;
(G) Any Contract pursuant to which Fisher or any
Subsidiary of Fisher has entered into a partnership or joint venture
with any other Person (other than Fisher or any Subsidiary of
Fisher);
(H) Any indenture, mortgage, loan, guarantee or
credit Contract under which Fisher or any Subsidiary of Fisher has
outstanding indebtedness or any outstanding note, bond, indenture or
other evidence of indebtedness for borrowed money or otherwise or
any guaranteed indebtedness for money
49
borrowed by others, in each case, for or guaranteeing an amount in
excess of $2,500,000;
(I) Any Contract under which Fisher or any
Subsidiary of Fisher is (1) a lessee of real property, (2) a lessee
of, or holds or uses, any machinery, equipment, vehicle or other
tangible personal property owned by a third Person, (3) a lessor of
real property, or (4) a lessor of any tangible personal property
owned by Fisher or any Subsidiary of Fisher, in each case which
requires annual payments in excess of $1,000,000;
(J) Any Contract (other than purchase or sale
orders in the ordinary course of business that are terminable or
cancelable without penalty on 90 days' notice or less) under which
Fisher or any Subsidiary of Fisher is a purchaser or supplier of
goods and services which, pursuant to the terms thereof, requires
payments by Fisher or any Subsidiary of Fisher in excess of
$1,000,000 per annum;
(K) Any material Contract (including guarantees)
between Fisher or any wholly-owned Subsidiary of Fisher and another
Subsidiary of Fisher that is not wholly-owned by Fisher;
(L) Any Contract which requires payments by
Fisher or any Subsidiary of Fisher in excess of $1,000,000 per annum
containing "change of control" or similar provisions;
(M) Any Contract entered into on or after
January 1, 2001 relating to the acquisition or disposition of any
business or any assets (whether by merger, sale of stock or assets
or otherwise), in an amount in excess of $5,000,000 (all of which
Contracts have been made available to Apogent prior to the date
hereof in the data room maintained by Fisher's counsel in connection
with the transactions contemplated hereby);
(N) Any Contract (other than Contracts of the
type described in subclauses (A) through (M) above) that involves
aggregate payments by or to Fisher or any Subsidiary of Fisher in
excess of $1,000,000 per annum, other than purchase or sales orders
or other Contracts entered into in the ordinary course of business
consistent with past practice that are terminable or cancelable
without penalty on 90 days' notice or less; and
50
(O) Any Contract the termination or breach of
which, or the failure to obtain consent in respect of, would
reasonably be expected to have a Material Adverse Effect on Fisher
and its Subsidiaries, taken as a whole.
(ii) Schedule. Section 3.2(q)(ii) of the Fisher
Disclosure Schedule sets forth a list of all Fisher Material Contracts as
of the date hereof. With respect to the Contracts described in (i) Section
3.2(q)(i)(D), (F), (I), (J), (L) and (N) of this Agreement, Section
3.2(q)(ii) of the Fisher Disclosure Schedule sets forth only Contracts
which require payments, or in the case of clause (D) involve obligations,
in excess of $2,500,000 and (ii) Section 3.2(q)(i)(N) of this Agreement,
Section 3.2(q)(ii) of the Fisher Disclosure Schedule sets forth only
Contracts involving payments to Fisher, or any Subsidiary of Fisher, in
excess of $10,000,000.
(iii) No Breach. All Fisher Material Contracts are valid
and in full force and effect and enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
rights and remedies of creditors generally and to general principles of
equity (regardless of whether considered in a proceeding in equity or at
law), except to the extent that (A) they have previously expired in
accordance with their terms or (B) the failure to be in full force and
effect, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on Fisher and its Subsidiaries, taken as
a whole. Neither Fisher nor any of its Subsidiaries, nor, to Fisher's
Knowledge, any counterparty to any Fisher Material Contract, has violated
any provision of, or committed or failed to perform any act which, with or
without notice, lapse of time or both would constitute a default under the
provisions of, any Fisher Material Contract, except in each case for those
violations and defaults which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole.
(r) Real Property. Section 3.2(r)(i) of the Fisher
Disclosure Schedule lists all material real property owned in fee by Fisher or
any of its Subsidiaries (the "Fisher Owned Real Property") or leased by Fisher
or any of its Subsidiaries as lessee (the "Fisher Leased Real Property"). Fisher
or any of its Subsidiaries owns good and valid title to the Fisher Owned Real
Property and has valid and enforceable leasehold interests under the leases with
respect to the Fisher Leased Real Property, free and clear of all Liens other
than (i) Permitted Liens and (ii) easements, covenants, rights-of-way and other
encumbrances or restrictions, whether recorded or referred to in an applicable
lease or unrecorded, which do not materially impair the continued use of the
property subject thereto as currently used, but in no event, with respect to
clauses (i) and (ii), environmental or Tax Liens, judgments, lis pendens or any
Lien that would render the title to the Fisher Owned Real Property uninsurable
by a reputable title insurance company. All of the improvements located on any
Fisher Owned Real Property or Fisher Leased Real Property are in good condition
and repair (subject to normal wear and tear) without any structural defects of
any kind. Except as set forth in Section 3.2(r)(i) of the Fisher Disclosure
Schedule, each material lease with respect to the Fisher Leased Real Property is
valid, unmodified and in full force and effect, and there are no material
subleases with respect to the Fisher Leased Real Property. Neither any landlord
nor Fisher nor any of its Subsidiaries party to
51
any material lease with respect to the Fisher Leased Real Property is in
monetary or other material default under any such lease.
(s) Merger Sub Approval. The Board of Directors of Merger
Sub, by written consent duly adopted prior to the date hereof, (i) determined
that this Agreement and the Merger are advisable and fair to and in the best
interests of Merger Sub and its shareholder, (ii) duly approved and adopted this
Agreement, the Merger and the other transactions contemplated hereby, which
adoption has not been rescinded or modified, and (iii) submitted this Agreement
for adoption by Fisher, as the sole shareholder of Merger Sub. Promptly
following the date hereof, Fisher, as the sole shareholder of Merger Sub, will
have duly approved and adopted this Agreement and the Merger.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 4.1 Conduct of Business.
(a) Apogent agrees that, between the date of this Agreement
and the Effective Time, except as set forth in Section 4.1(a) of the Apogent
Disclosure Schedule or as expressly provided by any other provision of this
Agreement, or unless Fisher shall otherwise agree in advance in writing, Apogent
shall, and shall cause each of its Subsidiaries to, (i) maintain its existence
in good standing under Applicable Laws, (ii) subject to the restrictions and
exceptions set forth in this Section 4.1(a), conduct its operations only in the
ordinary and usual course of business consistent with past practice and (iii)
use its reasonable best efforts to keep available the services of the current
officers, key employees and consultants of Apogent and each of its Subsidiaries
and to preserve the current relationships of Apogent and its Subsidiaries with
their customers, suppliers and other Persons with which Apogent or any of its
Subsidiaries has significant business relations as are reasonably necessary in
order to preserve substantially intact its business organization. In addition,
without limiting the foregoing, except as set forth in Section 4.1(a) of the
Apogent Disclosure Schedule or as expressly provided by any other provision of
this Agreement, Apogent shall not and shall not permit any of its Subsidiaries
to (unless required by Applicable Laws applicable to Apogent and its
Subsidiaries), between the date of this Agreement and the Effective Time,
directly or indirectly, do, or agree to do, any of the following without the
prior written consent of Fisher:
(i) amend or otherwise change its articles or
certificate of incorporation or bylaws or equivalent organizational
documents;
(ii) issue, sell, pledge, dispose of, grant, transfer,
encumber, or authorize the issuance, sale, pledge, disposition, grant,
transfer or encumbrance of any shares of capital stock of, or other equity
interests in, Apogent or any of its Subsidiaries of any class, or
securities convertible or exchangeable or exercisable for any shares of
such capital stock or other equity interests, or any options, warrants or
other rights of any kind to acquire any shares of such capital stock or
other equity interests or such convertible or exchangeable
52
securities, or any other ownership interest, of Apogent or any of its
Subsidiaries, except for (A) the issuance of securities issuable upon the
exercise of options or other rights outstanding as of the date hereof
under any Apogent Benefit Plan, (B) grants of stock options and Apogent
Restricted Stock Units to the extent permitted by Section 4.1(a)(vii) or
(C) to the extent reflected in Section 4.1(a)(ii)(C) of the Apogent
Disclosure Schedule;
(iii) (A) sell, pledge, dispose of, transfer, lease,
license, or encumber, or authorize the sale, pledge, disposition,
transfer, lease, license, or encumbrance of, any material property or
assets (other than Intellectual Property) of Apogent or any of its
Subsidiaries, except (1) sales, pledges, dispositions, transfers, leases,
licenses or encumbrances required to be effected prior to the Effective
Time pursuant to existing Contracts, (2) sales, pledges, dispositions,
transfers, leases, licenses or encumbrances of (x) assets or properties of
Apogent or any of its Subsidiaries having a value not to exceed in the
aggregate $5,000,000, (y) inventory which is obsolete or no longer used or
useful in the conduct of Apogent's or any of its Subsidiaries' business
having an aggregate sales value not to exceed in the aggregate $5,000,000
or (z) finished goods in the ordinary course of business consistent with
past practice, (B) sell, pledge, dispose of, transfer, lease, license,
abandon, fail to maintain or encumber, or authorize the sale, pledge,
disposition, transfer, lease, license, abandonment, failure to maintain or
encumbrance of, any Intellectual Property, except sales, pledges,
dispositions, transfers, leases, licenses, abandonments, failures to
maintain or encumbrances of Intellectual Property which is obsolete or no
longer used or useful in the conduct of Apogent's or any of its
Subsidiaries' businesses having an aggregate value not to exceed in the
aggregate $5,000,000 or (C) unless otherwise permitted under another
clause of this Section 4.1(a), enter into any material commitment or
transaction outside the ordinary course of business consistent with past
practice other than transactions between a wholly-owned Subsidiary of
Apogent and Apogent or another wholly-owned Subsidiary of Apogent;
(iv) declare, set aside, make or pay any dividend or
other distribution (whether payable in cash, stock, property or a
combination thereof) with respect to any of the capital stock of Apogent
(other than dividends or distributions paid by wholly-owned Subsidiaries
of Apogent to Apogent or to other wholly-owned Subsidiaries of Apogent) or
enter into any agreement with respect to the voting of the capital stock
of Apogent;
(v) (A) reclassify, combine, split or subdivide any of
its capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of, or in substitution for, shares of
its capital stock, or (B) redeem, purchase or otherwise acquire, directly
or indirectly, any of its capital stock, other equity interests or other
securities;
(vi) (A) incur any indebtedness for borrowed money or
issue any debt securities or assume, guarantee or endorse, or otherwise as
an
53
accommodation become responsible for, the obligations of any Person (other
than a wholly-owned Subsidiary of Apogent) for borrowed money, except for
(y) indebtedness for borrowed money under or guarantees with respect to
indebtedness under Apogent's existing credit facility or (z) indebtedness
of any wholly-owned Subsidiary of Apogent to any other wholly-owned
Subsidiary of Apogent or indebtedness of Apogent to any wholly-owned
Subsidiary of Apogent, (B) terminate, cancel, or agree to any material and
adverse change in, any Apogent Material Contract other than in the
ordinary course of business consistent with past practice or (C) make or
authorize any material loan to any Person (other than a Subsidiary of
Apogent) outside the ordinary course of business;
(vii) except as disclosed in Section 4.1(a)(vii) of the
Apogent Disclosure Schedule, (A) increase the compensation or benefits
payable or to become payable to its directors or officers, (B) increase
the compensation or benefits payable or to become payable to its other
employees (except for regularly scheduled increases in the ordinary course
of business in accordance with past practices and methodologies), (C)
grant any rights to severance or termination pay to, or enter into any
employment or severance agreement with, any director, officer or other
employee of Apogent or any of its Subsidiaries (excluding any payments
made under severance plans or agreements in effect on the date hereof and
other than with respect to newly hired employees in the ordinary course of
business in accordance with past practices of Apogent or any of its
Subsidiaries, provided that any such agreements shall not provide for the
payment of any severance or termination pay solely as a result of the
execution of this Agreement or the consummation of the transactions
contemplated hereby), (D) except in accordance with Section 5.11(d),
establish, adopt, enter into or amend any collective bargaining agreement
or Benefit Plan for the benefit of any director, officer, consultant or
employee, except to the extent required by Applicable Laws and, with
respect to the grant of equity-based awards, except for grants in the
ordinary course consistent with past practice or (E) take any affirmative
action to amend or waive any performance or vesting criteria or accelerate
vesting, exercisability or funding under any Apogent Benefit Plan or
Apogent Option, except in accordance with Section 5.11(a);
(viii) make any material change in accounting policies
or procedures, other than in the ordinary course of business consistent
with past practice or except as required by GAAP or by a Governmental
Entity;
(ix) except in the ordinary course of business
consistent with past practice, make any material Tax election or settle or
compromise any material liability for Taxes, change any annual Tax
accounting period, change any method of Tax accounting, file any amended
material Tax Return, enter into any closing agreement relating to any
material Tax, surrender any right to claim a material Tax refund, or
consent to any extension or waiver of the statute of limitations period
applicable to any material Tax claim or assessment;
54
(x) except as provided in Section 4.1(a)(x) of the
Apogent Disclosure Schedule, modify, amend or terminate, or waive, release
or assign any material rights or claims with respect to any
confidentiality or standstill agreement to which Apogent is a party and
which relates to a business combination involving Apogent;
(xi) write up, write down or write off the book value
of any assets, individually or in the aggregate, for Apogent and its
Subsidiaries, taken as a whole, other than (A) in the ordinary course of
business, (B) as may be required by GAAP or (C) otherwise not in excess of
$5,000,000;
(xii) except as permitted by Section 5.16(b), take any
action to render inapplicable, or to exempt any third Person (other than
Fisher or Merger Sub) from, (A) the provisions of the WBCL or (B) any
other state takeover law or state law that purports to limit or restrict
business combinations or the ability to acquire or vote shares of capital
stock;
(xiii) acquire, or agree to acquire, from any Person any
assets (not including Intellectual Property), operations, business or
securities or engage in, or agree to engage in, any merger, consolidation
or other business combination with any Person, except in connection with
(A) capital expenditures set forth in Section 4.1(a)(xiii) of the Apogent
Disclosure Schedule permitted hereunder, (B) acquisitions of inventory and
other tangible assets (not including Intellectual Property) in the
ordinary course of business consistent with past practice and (C)
acquisitions of assets, operations, businesses or securities set forth in
Section 4.1(a) of the Apogent Disclosure Schedule and other such
acquisitions not to exceed $20,000,000 in the aggregate;
(xiv) take any action that is intended or would
reasonably be expected to result in any of the conditions to the Merger
set forth in Article VI not being satisfied;
(xv) except as permitted by Section 5.16(a), amend or
alter its shareholder rights agreement, or "poison pill";
(xvi) acquire, or agree to acquire, from any Person, any
Intellectual Property having a value, in the aggregate, in excess of
$5,000,000 or as set forth in Section 4.1(a)(xvi) of the Apogent
Disclosure Schedule; or
(xvii) authorize or enter into any agreement or
otherwise make any commitment to do any of the foregoing.
(b) Fisher agrees that, between the date of this Agreement
and the Effective Time, except as set forth in Section 4.1(b) of the Fisher
Disclosure Schedule or as expressly provided by any other provision of this
Agreement, or unless Apogent shall otherwise agree in advance in writing, Fisher
shall, and shall cause each of its Subsidiaries to, (i) maintain its existence
in good standing under Applicable Laws (ii) subject to the restrictions and
55
exceptions set forth in this Section 4.1(b), conduct its operations only in the
ordinary and usual course of business consistent with past practice, provided
that the acquisition by Fisher of any assets, operations, business or
securities, however effectuated, and any capital expenditures by Fisher shall be
deemed to be permitted under this Section 4.1, and (iii) use its reasonable best
efforts to keep available the services of the current officers, key employees
and consultants of Fisher and each of its Subsidiaries and to preserve the
current relationships of Fisher and its Subsidiaries with their customers,
suppliers and other Persons with which Fisher or any of its Subsidiaries has
significant business relations as are reasonably necessary in order to preserve
substantially intact its business organization. In addition, without limiting
the foregoing, except as set forth in Section 4.1(b) of the Fisher Disclosure
Schedule or as expressly provided by any other provision of this Agreement,
Fisher shall not and shall not permit any of its Subsidiaries to (unless
required by Applicable Laws applicable to Fisher and its Subsidiaries), between
the date of this Agreement and the Effective Time, directly or indirectly, do,
or agree to do, any of the following without the prior written consent of
Apogent:
(i) amend or otherwise change its articles or
certificate of incorporation or bylaws or equivalent organizational
documents;
(ii) issue, sell, pledge, dispose of, grant, transfer,
encumber, or authorize the issuance, sale, pledge, disposition, grant,
transfer or encumbrance of any shares of capital stock of, or other equity
interests in, Fisher or any of its Subsidiaries of any class, or
securities convertible or exchangeable or exercisable for any shares of
such capital stock or other equity interests, or any options, warrants or
other rights of any kind to acquire any shares of such capital stock or
other equity interests or such convertible or exchangeable securities, or
any other ownership interest, of Fisher or any of its Subsidiaries, except
for (A) the issuance of securities issuable upon the exercise of options
or other rights outstanding as of the date hereof under any Fisher Benefit
Plan, (B) grants of stock options and restricted stock to the extent
permitted by Section 4.1(b)(vii) or (C) to the extent reflected in Section
4.1(b)(ii)(C) of the Fisher Disclosure Schedule;
(iii) (A) sell, pledge, dispose of, transfer, lease,
license, or encumber, or authorize the sale, pledge, disposition,
transfer, lease, license, or encumbrance of, any material property or
assets (other than Intellectual Property) of Fisher or any of its
Subsidiaries, except (1) sales, pledges, dispositions, transfers, leases,
licenses or encumbrances required to be effected prior to the Effective
Time pursuant to existing Contracts, (2) sales, pledges, dispositions,
transfers, leases, licenses or encumbrances of (x) assets or properties of
Fisher's or any of its Subsidiaries' having a value not to exceed in the
aggregate $5,000,000, (y) inventory which is obsolete or no longer used or
useful in the conduct of Fisher's or any of its Subsidiaries' business
having an aggregate sales value not to exceed in the aggregate $5,000,000
or (z) finished goods in the ordinary course of business consistent with
past practice, (B) sell, pledge, dispose of, transfer, lease, license,
abandon, fail to maintain or encumber, or authorize the sale, pledge,
disposition, transfer, lease, license, abandonment, failure to maintain or
56
encumbrance of, any Intellectual Property except sales, pledges,
dispositions, transfers, leases, licenses, abandonments, failures to
maintain or encumbrances of Intellectual Property which is obsolete or no
longer used or useful in the conduct of Fisher's or any of its
Subsidiaries' businesses having an aggregate value not to exceed in the
aggregate $5,000,000 or (C) unless otherwise permitted under another
clause of this Section 4.1(b), enter into any material commitment or
transaction outside the ordinary course of business consistent with past
practice other than transactions between a wholly-owned Subsidiary of
Fisher and Fisher or another wholly-owned Subsidiary of Fisher;
(iv) declare, set aside, make or pay any dividend or
other distribution (whether payable in cash, stock, property or a
combination thereof) with respect to any of the capital stock of Fisher
(other than dividends or distributions paid by wholly-owned Subsidiaries
of Fisher to Fisher or to other wholly-owned Subsidiaries of Fisher) or
enter into any agreement with respect to the voting of the capital stock
of Fisher;
(v) (A) reclassify, combine, split or subdivide any of
its capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of, or in substitution for, shares of
its capital stock, or (B) redeem, purchase or otherwise acquire, directly
or indirectly, any of its capital stock, other equity interests or other
securities;
(vi) (A) incur any indebtedness for borrowed money or
issue any debt securities or assume, guarantee or endorse, or otherwise as
an accommodation become responsible for, the obligations of any Person
(other than a wholly-owned Subsidiary of Fisher) for borrowed money,
except for (y) indebtedness for borrowed money under or guarantees with
respect to indebtedness under Fisher's existing credit facility or (z)
indebtedness of any wholly-owned Subsidiary of Fisher to any other
wholly-owned Subsidiary of Fisher or indebtedness of Fisher to any other
wholly-owned Subsidiary of Fisher, (B) terminate, cancel, or agree to any
material and adverse change in, any Fisher Material Contract other than in
the ordinary course of business consistent with past practice or (C) make
or authorize any material loan to any Person (other than a Subsidiary of
Fisher) outside the ordinary course of business;
(vii) except as disclosed in Section 4.1(b)(vii) of the
Fisher Disclosure Schedule, (A) increase the compensation or benefits
payable or to become payable to its directors or officers, (B) increase
the compensation or benefits payable or to become payable to its other
employees (except for regularly scheduled increases in the ordinary course
of business in accordance with past practices and methodologies), (C)
grant any rights to severance or termination pay to, or enter into any
employment or severance agreement with, any director, officer or other
employee of Fisher or any of its Subsidiaries (other than with respect to
newly hired employees in the ordinary course of business in accordance
with past practices of Fisher or any of its Subsidiaries, provided that
any such
57
agreements shall not provide for the payment of any severance or
termination pay solely as a result of the execution of this Agreement or
the consummation of the transactions contemplated hereby), (D) except in
accordance with Section 5.11(d), establish, adopt, enter into or amend any
collective bargaining agreement or Benefit Plan for the benefit of any
director, officer, consultant or employee, except to the extent required
by Applicable Laws and with respect to the grant of equity-based awards,
except for grants in the ordinary course consistent with past practice or
(E) take any affirmative action to amend or waive any performance or
vesting criteria or accelerate vesting, exercisability or funding under
any Fisher Benefit Plan or Fisher Option, except in accordance with
Section 5.11(a);
(viii) make any material change in accounting policies
or procedures, other than in the ordinary course of business consistent
with past practice or except as required by GAAP or by a Governmental
Entity;
(ix) except in the ordinary course of business
consistent with past practice, make any material Tax election or settle or
compromise any material liability for Taxes, change any annual Tax
accounting period, change any method of Tax accounting, file any amended
material Tax Return, enter into any closing agreement relating to any
material Tax, surrender any right to claim a material Tax refund, or
consent to any extension or waiver of the statute of limitations period
applicable to any material Tax claim or assessment;
(x) except as provided in Section 4.1(b)(x) of the
Fisher Disclosure Schedule, modify, amend or terminate, or waive, release
or assign any material rights or claims with respect to any
confidentiality or standstill agreement to which Fisher is a party and
which relates to a business combination involving Fisher;
(xi) write up, write down or write off the book value
of any assets, individually or in the aggregate, for Fisher and its
Subsidiaries, taken as a whole, other than (A) in the ordinary course of
business, (B) as may be required by GAAP or (C) otherwise not in excess of
$5,000,000;
(xii) except as permitted by Section 5.16(b), take any
action to render inapplicable, or to exempt any Person (other than
Apogent) from, (A) the provisions of the DGCL or (B) any other state
takeover law or state law that purports to limit or restrict business
combinations or the ability to acquire or vote shares of capital stock;
(xiii) take any action that is intended or would
reasonably be expected to result in any of the conditions to the Merger
set forth in Article VI not being satisfied; or
(xiv) authorize or enter into any agreement or otherwise
make any commitment to do any of the foregoing.
58
(c) Other Actions. Except as required by Applicable Laws,
Fisher, Apogent and Merger Sub shall not, and shall not permit any of their
respective Subsidiaries to, voluntarily take any action that would, or that
would reasonably be expected to, result in (i) any of the representations and
warranties of such party set forth in this Agreement that are qualified as to
"materiality" or "Material Adverse Effect" becoming untrue as of the Closing
(for this purpose, without giving effect to any limitation as to any such
representation or warranty being made as of the date of this Agreement), (ii)
any of such representations and warranties that are not so qualified becoming
untrue in any material respect as of the Closing (for this purpose, without
giving effect to any limitation as to any such representation or warranty being
made as of the date of this Agreement), or (iii) any of the conditions to the
Merger set forth in Article VI not being satisfied.
SECTION 4.2 No Solicitation.
(a) Neither Apogent nor Fisher shall, nor permit any of its
Subsidiaries to, nor authorize or permit any of its officers, directors or
employees or any investment banker, financial advisor, attorney, accountant or
other representative retained by it or any of its Subsidiaries to, directly, or
indirectly, (i) solicit, initiate or encourage (including by way of furnishing
any information to any Person), or take any other action to, or which is
designed or intended to or would be reasonably likely to, facilitate, induce or
encourage, any inquiries with respect to, or the making, submission or
announcement of, any Alternative Transaction Proposal (as defined in Section
8.3(c)), (ii) participate in any discussions or negotiations regarding, furnish
to any Person any information with respect to, otherwise cooperate in any way
with or knowingly facilitate any effort or attempt to make or implement any, or
any possible, Alternative Transaction Proposal (except to disclose the existence
of the provisions of this Section 4.2), (iii) approve, endorse or recommend any
Alternative Transaction (as defined in Section 8.3(b))(except to the extent
specifically permitted pursuant to Section 4.2(d)), or (iv) enter into any
letter of intent or similar document or any contract, agreement or commitment
(whether binding or not) contemplating or otherwise relating to any Alternative
Transaction Proposal. Each of Apogent and Fisher and each of their respective
Subsidiaries will immediately cease, and will cause its officers, directors and
employees and instruct any investment banker, financial adviser, attorney,
accountant or other representative retained by it to cease, any and all existing
activities, discussions or negotiations with any third parties conducted
heretofore with respect to any Alternative Transaction Proposal, and will use
its reasonable best efforts to enforce (and not waive any provisions of) any
confidentiality or standstill agreement (or any similar agreement) relating to
any such Alternative Transaction Proposal.
(b) Notification of Alternative Transactions. As promptly as
practicable (and in any event within 24 hours) after receipt of any Alternative
Transaction Proposal or any request for nonpublic information or any inquiry
relating in any way to any Alternative Transaction Proposal, Apogent or Fisher,
as the case may be, shall provide the other party with oral and written notice
of the material terms and conditions of such Alternative Transaction Proposal,
request or inquiry, and the identity of the Person or group of Persons making
any such Alternative Transaction Proposal, request or inquiry and a copy of all
written materials provided to it in connection with such Alternative Transaction
Proposal, request or inquiry. In addition, Apogent or Fisher, as the case may
be, shall provide the other party as
59
promptly as possible with oral and written notice setting forth all such
information as is reasonably necessary to keep the other party informed in all
material respects of all oral or written communications regarding, and the
status and details (including material amendments or proposed material
amendments) of, any such Alternative Transaction Proposal, request or inquiry,
and, without limitation of the other provisions of this Section 4.2, shall
promptly provide to the other party a copy of all written materials (including
written materials provided by email or otherwise in electronic format)
subsequently provided by or to it in connection with such Alternative
Transaction Proposal, request or inquiry. Apogent or Fisher, as the case may be,
shall provide the other party with 48 hours prior notice (or such lesser prior
notice as is provided to the members of its Board of Directors) of any meeting
of its Board of Directors at which its Board of Directors is reasonably expected
to consider any Alternative Transaction Proposal or Alternative Transaction.
(c) Superior Proposals. Notwithstanding anything to the
contrary contained in Section 4.2(a), in the event that Apogent or Fisher, as
the case may be, receives an unsolicited, bona fide written Alternative
Transaction Proposal which is determined (in accordance with Section 8.3(p)) to
be, or is reasonably likely to be, a Superior Proposal (as defined in Section
8.3(p)), it may then take the following actions (but only (1) if and to the
extent that (y) its Board of Directors concludes in good faith, after
consultation with its outside legal counsel, that the failure to do so is
reasonably likely to result in a breach of its fiduciary obligations to its
shareholders or stockholders, as applicable, under Applicable Laws, and (z)
Apogent or Fisher, as the case may be, has given the other party at least two
business days prior written notice of its intention to take any of the following
actions and of the identity of the Person or group of Persons making such
Alternative Transaction Proposal and the material terms and conditions of such
Alternative Transaction Proposal and (2) if it shall not have breached in any
material respect any of the provisions of this Section 4.2):
(i) Furnish nonpublic information to the Person or
group of Persons making such Superior Proposal, provided that (A) prior to
furnishing any such nonpublic information, it receives from such Person or
group of Persons an executed confidentiality and standstill agreement
containing terms at least as restrictive as the terms contained in the
Confidentiality Agreement, dated as of March 3, 2004, between Fisher and
Apogent (the "CDA") and (B) contemporaneously with furnishing any such
nonpublic information to such Person or group of Persons, it furnishes
such nonpublic information to the other party hereto (to the extent such
nonpublic information has not been previously so furnished to such party);
and
(ii) Engage in discussions or negotiations with such
Person or group of Persons with respect to such Superior Proposal.
(d) Changes of Recommendation.
(i) Solely in response to the receipt of an
unsolicited, bona fide written Alternative Transaction Proposal which is
determined (in accordance with Section 8.3(p)) to be a Superior Proposal,
the Board of Directors
60
of Apogent or Fisher, as the case may be, may make a Change of
Recommendation (as defined in Section 4.2(d)(ii)), if all of the following
conditions in clauses (A) through (E) are met:
(A) The Superior Proposal has been made and has
not been withdrawn and continues to be a Superior Proposal;
(B) The Apogent Shareholders' Meeting or Fisher
Stockholders' Meeting, as the case may be, has not occurred;
(C) Apogent or Fisher, as the case may be, has
(1) provided to the other party hereto three business days' prior
written notice which shall state expressly (x) that it has received
a Superior Proposal, (y) the material terms and conditions of the
Superior Proposal and the identity of the Person or group of Persons
making the Superior Proposal, and (z) that it intends to effect a
Change of Recommendation and the manner in which it intends to do
so, (2) provided to the other party hereto all materials and
information delivered or made available to the Person or group of
Persons making the Superior Proposal in connection with such
Superior Proposal and (3) during the aforementioned period, if
requested by the other party hereto, engaged in good faith
negotiations to amend this Agreement in such a manner that the
Alternative Transaction Proposal which was determined to be a
Superior Proposal no longer is a Superior Proposal;
(D) The Board of Directors of Apogent or Fisher,
as the case may be, has determined in good faith, after consultation
with its outside legal counsel, that, in light of such Superior
Proposal, the failure of the Board of Directors to effect a Change
of Recommendation is reasonably likely to result in a breach of its
fiduciary obligations to its shareholders or stockholders, as
applicable, under Applicable Laws; and
(E) Apogent or Fisher, as the case may be, shall
have complied with Section 4.2(c) and shall not have breached in any
material respect any of the other provisions set forth in this
Section 4.2.
(ii) A "Change of Recommendation" shall mean the
withholding, withdrawal, amendment, qualification or modification of the
Board of Directors' recommendation in favor of, in the case of Apogent,
approval and adoption of this Agreement and the Merger and, in the case of
Fisher, the Stock Issuance, and, in the case of a tender or exchange offer
made directly to Apogent's
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shareholders or Fisher's stockholders, as the case may be, a
recommendation that Apogent's shareholders or Fisher's stockholders, as
the case may be, accept the tender or exchange offer.
(e) Compliance with Tender Offer Rules. Nothing contained in
this Agreement shall prohibit Apogent or Fisher or their respective Boards of
Directors from taking and disclosing to their shareholders or stockholders, as
applicable, a position contemplated by Rules 14d-9 and 14e-2(a) promulgated
under the Exchange Act; provided that neither Apogent nor Fisher shall effect,
or disclose pursuant to such rules or otherwise a position which constitutes, a
Change of Recommendation unless specifically permitted pursuant to the terms of
Section 4.2(d).
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1 Preparation of SEC Documents; Shareholders' Meetings.
(a) As soon as practicable following the date of this
Agreement, Fisher and Apogent shall prepare and file with the SEC the Joint
Proxy Statement, and Fisher shall prepare and file with the SEC the Form S-4, in
which the Joint Proxy Statement will be included as a prospectus. Each of Fisher
and Apogent shall use commercially reasonable efforts to have the Form S-4
declared effective under the Securities Act as promptly as practicable after
such filing. Fisher will use all commercially reasonable efforts to cause the
Joint Proxy Statement to be mailed to Fisher's stockholders, and Apogent will
use all commercially reasonable efforts to cause the Joint Proxy Statement to be
mailed to Apogent's shareholders, in each case as promptly as practicable after
the Form S-4 is declared effective under the Securities Act. Fisher shall also
take any action (other than qualifying to do business in any jurisdiction in
which it is not now so qualified or filing a general consent to service of
process) required to be taken under any applicable state securities laws in
connection with the issuance and reservation of shares of Fisher Common Stock in
the Merger and the conversion of Apogent Options into options to acquire Fisher
Common Stock, and Apogent shall furnish all information concerning Apogent and
the holders of Apogent Common Stock as may be reasonably requested in connection
with any such action. No filing of, or amendment or supplement to, the Form S-4
or the Joint Proxy Statement will be made by Fisher without Apogent's prior
consent (which shall not be unreasonably withheld) and without providing Apogent
the opportunity to review and comment thereon. Fisher will advise Apogent
promptly after it receives oral or written notice thereof, of the time when the
Form S-4 has become effective or any supplement or amendment has been filed, the
issuance of any stop order, the suspension of the qualification of the Fisher
Common Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, or any oral or written request by the SEC for amendment of the
Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto
or requests by the SEC for additional information and will promptly provide
Apogent with copies of any written communication from the SEC or any state
securities commission. If at any time prior to the Effective Time any
information (including any Change of Recommendation) relating to Fisher or
Apogent, or any of their respective Affiliates, officers or directors, should be
discovered by Fisher or Apogent which
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should be set forth in an amendment or supplement to any of the Form S-4 or the
Joint Proxy Statement, so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, the party which discovers such information shall promptly
notify the other parties hereto and an appropriate amendment or supplement
describing such information shall be promptly filed with the SEC and, to the
extent required by law, disseminated to the stockholders or shareholders, as
applicable, of Fisher and Apogent.
(b) Each of Apogent and Fisher shall, as promptly as
practicable after the Form S-4 is declared effective under the Securities Act,
take all action necessary in accordance with Applicable Laws and the Apogent
Organizational Documents, in the case of Apogent, and the Fisher Organizational
Documents, in the case of Fisher, to duly give notice of, convene and hold a
meeting of its shareholders or stockholders, as applicable, to be held as
promptly as practicable to consider, in the case of Fisher, the Stock Issuance
(the "Fisher Stockholders' Meeting") and, in the case of Apogent, the adoption
and approval of this Agreement and the Merger (the "Apogent Shareholders'
Meeting"). Subject to Section 4.2(d), each of Apogent and Fisher will use all
commercially reasonable efforts to solicit from its shareholders or
stockholders, as applicable, proxies in favor of, in the case of Fisher, the
Stock Issuance, and, in the case of Apogent, the adoption and approval of this
Agreement and the Merger, and will take all other action necessary or advisable
to secure the vote or consent of its shareholders or stockholders, as
applicable, required by the rules of the NYSE or Applicable Laws to obtain such
approvals. Notwithstanding anything to the contrary contained in this Agreement,
Apogent or Fisher may adjourn or postpone the Apogent Shareholders' Meeting or
Fisher Stockholders' Meeting, as the case may be, to the extent necessary to
ensure that any necessary supplement or amendment to the Joint Proxy Statement
is provided to its respective stockholders or shareholders, as applicable, in
advance of a vote on, in the case of Fisher, the Stock Issuance and, in the case
of Apogent, the approval and adoption of this Agreement and the Merger, or, if,
as of the time for which the Apogent Shareholders' Meeting or Fisher
Stockholders' Meeting, as the case may be, is originally scheduled, there are
insufficient shares of Apogent Common Stock or Fisher Common Stock, as the case
may be, represented (either in person or by proxy) to constitute a quorum
necessary to conduct the business of such meeting. Each of Apogent and Fisher
shall ensure that the Apogent Shareholders' Meeting and the Fisher Stockholders'
Meeting, respectively, is called, noticed, convened, held and conducted, and
that all proxies solicited in connection with the Apogent Shareholders' Meeting
or Fisher Stockholders' Meeting, as the case may be, are solicited in compliance
with Applicable Laws, the rules of the NYSE and, in the case of Apogent, the
Apogent Organizational Documents, and, in the case of Fisher, the Fisher
Organizational Documents. Except with respect to matters as to which preliminary
proxy materials would not be required to be filed with the SEC, without the
prior written consent of Apogent, the Stock Issuance is the only matter which
Fisher shall propose to be acted on by Fisher's stockholders at the Fisher
Stockholders' Meeting. Without the prior written consent of Fisher, approval and
adoption of this Agreement and the Merger is the only matter which Apogent shall
propose to be acted on by Apogent's shareholders at the Apogent Shareholders'
Meeting.
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(c) Each of Apogent and Fisher will use commercially
reasonable efforts to hold the Apogent Shareholders' Meeting and Fisher
Stockholders' Meeting, respectively, on the same date as the other party and as
soon as reasonably practicable after the date of this Agreement.
(d) Except to the extent expressly permitted by Section
4.2(d): (i) the Board of Directors of each of Apogent and Fisher shall recommend
that its shareholders or stockholders, as applicable, vote in favor of, in the
case of Apogent, the approval and adoption of this Agreement and the Merger at
the Apogent Shareholders' Meeting, and, in the case of Fisher, the Stock
Issuance at the Fisher Stockholders Meeting, (ii) the Joint Proxy Statement
shall include a statement to the effect that the Board of Directors of (A)
Fisher has recommended that Fisher's stockholders vote in favor of the Stock
Issuance and (B) Apogent has recommended that Apogent's shareholders vote in
favor of approval and adoption of this Agreement and the Merger at the Apogent
Shareholders' Meeting and (iii) neither the Board of Directors of Apogent or
Fisher nor any committee thereof shall withdraw, amend or modify, or propose or
resolve to withdraw, amend or modify in a manner adverse to the other party, the
recommendation of its respective Board of Directors that the respective
shareholders or stockholders, as applicable, of Apogent or Fisher vote in favor
of, in the case of Apogent, the approval and adoption of this Agreement and the
Merger, and, in the case of Fisher, the Stock Issuance.
SECTION 5.2 Accountant's Letters. Each of Apogent and Fisher shall
use commercially reasonable efforts to cause to be delivered to the other party
two letters from their respective independent accountants, one dated
approximately as of the date the Form S-4 is declared effective and one dated
approximately as of the Closing Date, each addressed to the other party, in form
and substance reasonably satisfactory to the other party and customary in scope
and substance for comfort letters delivered by independent public accountants in
connection with registration statements similar to the Form S-4.
SECTION 5.3 Access to Information; Confidentiality. (a) Subject to
the CDA and Applicable Laws, each of Fisher and Apogent shall, and shall cause
each of its respective Subsidiaries to, afford to the other party and to the
officers, employees, accountants, counsel, financial advisors and other
representatives of such other party, full access at all reasonable times on
reasonable notice during the period prior to the Effective Time to all their
respective properties, books, contracts, commitments, personnel and records
(provided, that such access shall not unreasonably interfere with the business
or operations of such party) and, during such period and subject to the CDA and
Applicable Laws, each of Fisher and Apogent shall, and shall cause each of its
respective Subsidiaries to, furnish promptly to the other party (i) a copy of
each report, schedule, registration statement and other document filed by it
during such period pursuant to the requirements of federal or state securities
laws and (ii) all other information concerning its business, properties and
personnel as such other party may reasonably request. No review pursuant to this
Section 5.3 shall affect or be deemed to modify any representation or warranty
contained herein, the covenants or agreements of the parties hereto or the
conditions to the obligations of the parties hereto under this Agreement.
(b) Each of Fisher and Apogent will hold and keep
confidential, and will cause its respective officers and employees and will
direct its accountants, counsel, financial advisors and
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other representatives and Affiliates to hold and keep confidential, any
nonpublic information in accordance with the terms of the CDA.
SECTION 5.4 Reasonable Efforts.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, each of the parties agrees to use their commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable under Applicable Laws to consummate
and make effective, in the most expeditious manner practicable, the Merger and
the other transactions contemplated by this Agreement, including (i) the
obtaining of all necessary actions or non-actions, waivers, consents and
approvals from Governmental Entities and the making of all necessary
registrations and filings and the taking of all steps as may be necessary to
obtain an approval or waiver from, or to avoid an action or proceeding by, any
Governmental Entity, including all filings required under the HSR Act, with the
Federal Trade Commission or the United States Department of Justice and any
necessary antitrust, competition or similar laws of any foreign jurisdiction,
(ii) the obtaining of all necessary consents, approvals or waivers from third
parties, (iii) the defending of any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the consummation of
the transactions contemplated by this Agreement, including promptly seeking to
have any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed, and (iv) the execution and delivery of
any additional instruments necessary to consummate the transactions contemplated
by, and to fully carry out the purposes of, this Agreement. Subject to
Applicable Laws relating to the exchange of information, Apogent and Fisher
shall have the right to review in advance, and to the extent reasonably
practicable each will consult the other on, all the information relating to
Apogent and its Subsidiaries or Fisher and its Subsidiaries, as the case may be,
that appears in any filing made with, or written materials submitted to, any
third Person or any Governmental Entity in connection with the Merger and the
other transactions contemplated by this Agreement.
(b) Promptly following the date hereof, Apogent shall (i)
cause Apogent Holdings Denmark A/S to be converted into an Anpartsselskab, and
(ii) submit a ruling request to the appropriate Danish authorities in order to
treat the sale, exchange or other disposition of shares by Apogent Holdings
Denmark A/S (or any successor entity) as a share sale for Danish income Tax
purposes. In addition, prior to the Closing Date, Apogent shall cause Apogent
Holdings Denmark A/S (or any successor entity) to be treated as a disregarded
entity for U.S. federal income Tax purposes.
(c) Each of Fisher and Apogent shall keep the other
reasonably apprised of the status of matters relating to the completion of the
transactions contemplated hereby and work cooperatively in connection with
obtaining all required approvals or consents of any Governmental Entity (whether
domestic, foreign or supranational). In that regard, each party shall without
limitation: (i) promptly notify the other of, and if in writing, furnish the
other with copies of (or, in the case of material oral communications, advise
the other orally of) any communications from or with any Governmental Entity
(whether domestic, foreign or supranational) with respect to the Merger or any
of the other transactions contemplated by this
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Agreement, (ii) permit the other to review and discuss in advance, and consider
in good faith the views of the other in connection with, any proposed written
(or any material proposed oral) communication with any such Governmental Entity
with respect to the Merger or any of the other transactions contemplated by this
Agreement, (iii) not participate in any meeting with any such Governmental
Entity with respect to the Merger or any of the other transactions contemplated
by this Agreement unless it consults with the other in advance and to the extent
permitted by such Governmental Entity gives the other the opportunity to attend
and participate thereat, (iv) furnish the other with copies of all
correspondence, filings and communications (and memoranda setting forth the
substance thereof) between it and any such Governmental Entity with respect to
the Merger or any of the other transactions contemplated by this Agreement and
the Merger, and (v) furnish the other with such necessary information and
reasonable assistance as Fisher or Apogent, as applicable, may reasonably
request in connection with its preparation of necessary filings or submissions
of information to any such Governmental Entity. Each of Fisher and Apogent may,
as each deems advisable and necessary, reasonably designate any competitively
sensitive material provided to the other under this Section 5.4 as "outside
counsel only." Such material and the information contained therein shall be
given only to the outside legal counsel of the recipient and will not be
disclosed by such outside counsel to employees, officers, or directors of the
recipient unless express permission is obtained in advance from the source of
the materials (Fisher or Apogent, as the case may be) or its legal counsel.
(d) In connection with and without limiting the foregoing,
Fisher and Apogent shall (i) take all action necessary to ensure that no state
takeover statute or similar statute or regulation is or becomes applicable to
this Agreement or any of the transactions contemplated hereby and (ii) if any
state takeover statute or similar statute or regulation becomes applicable to
this Agreement or any of the transactions contemplated hereby, take all action
necessary to ensure that such transactions may be consummated as promptly as
practicable on the terms required by, or provided for, in this Agreement and
otherwise to minimize the effect of such statute or regulation on the Merger and
the other transactions contemplated by this Agreement.
(e) Notwithstanding anything to the contrary in this
Agreement, neither Fisher nor Apogent shall be required to hold separate
(including by trust or otherwise) or divest or take any other action with
respect to any of its businesses or assets or enter into any consent decree or
other agreement that would restrict it in the conduct of its business as
heretofore conducted if such action is reasonably expected to have a Material
Adverse Effect on Fisher, including a Material Adverse Effect on the total
benefits expected to be realized by Fisher after completion of the Merger.
(f) Promptly following the date hereof, Apogent and Fisher
shall cooperate in determining a mutually acceptable manner in which to cause no
Apogent Subsidiary to own, beneficially or of record, directly or indirectly,
any shares of Apogent Common Stock immediately prior to the Effective Time.
Apogent shall take (or cause to be taken) all actions proposed by Fisher and
legally available to Apogent in order to effect the result described in the
preceding sentence.
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SECTION 5.5 Indemnification and Insurance.
(a) From and after the Effective Time, Fisher will, and will cause
the Surviving Corporation to, fulfill and honor in all respects the obligations
of Apogent pursuant to any indemnification agreements between Apogent and its
directors, officers and employees in effect immediately prior to the Effective
Time, subject to Applicable Laws. For at least six years after the Effective
Time, Fisher shall, and shall cause the Surviving Corporation to, indemnify and
hold harmless the present and former officers and directors of Apogent and its
Subsidiaries (the "Indemnified Parties") for any costs, judgments, fines,
losses, claims, damages or liabilities incurred in connection with any claim,
action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that such Person was an officer, director
or employee of Apogent or any of its Subsidiaries in respect of acts or
omissions occurring at or prior to the Effective Time (including those related
to this Agreement and the transactions contemplated hereby), and shall advance
expenses in respect thereof, in each case, to the fullest extent permitted by
Applicable Laws.
(b) For a period of six years after the Effective Time, the
Surviving Corporation shall cause to be maintained in effect the current
policies of directors' and officers' and fiduciary liability insurance
maintained by Apogent with respect to claims arising from facts or events which
occurred on or before the Effective Time (including those related to this
Agreement and the transactions contemplated hereby); provided, that the
Surviving Corporation may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions which are no less
advantageous to former officers and directors of Apogent) only with respect to
claims arising from facts or events which occurred at or before the Effective
Time; and provided, further, that if the aggregate annual premiums for such
policies at any time during such period will exceed 300% of the per annum
premium rate paid by Apogent and its Subsidiaries as of the date hereof for such
policies, then Fisher shall only be required to provide such coverage as will
then be available at an annual premium equal to 300% of such rate.
(c) Notwithstanding anything herein to the contrary and to the
maximum extent permitted by Law, if any claim, action, suit, proceeding or
investigation is made or brought against any Indemnified Party on or prior to
the sixth anniversary of the Effective Time, the provisions of this Section 5.5
shall continue in effect until the final disposition of such claim, action,
suit, proceeding or investigation.
(d) If Fisher, the Surviving Corporation or any of their
respective successors or assigns (i) shall consolidate with or merge into any
other Person and shall not be the continuing or surviving corporation or entity
of such consolidation or merger or (ii) shall transfer all or substantially all
of its properties or assets to any Person, then, in each case, Fisher shall take
such action as may be necessary so that such Person shall assume all of the
applicable obligations set forth in this Section 5.5.
(e) The provisions of this Section 5.5 are (i) intended to be for
the benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and representatives and (ii) in addition to, and not in substitution for,
any other rights to indemnification or contribution that any such Person may
have by contract or otherwise.
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SECTION 5.6 Fees and Expenses. Except as set forth in this Section 5.6 and
in Section 7.3, all fees and expenses incurred in connection with the Merger,
this Agreement and the transactions contemplated by this Agreement shall be paid
by the party incurring such fees or expenses, whether or not the Merger is
consummated, except that each of Apogent and Fisher shall bear and pay one-half
of the costs and expenses incurred by Fisher, Merger Sub or Apogent (other than
attorneys' fees, accountants' fees and related expenses) in connection with (i)
the filing, printing and mailing of the Form S-4 (including financial statements
and exhibits), the Joint Proxy Statement (including SEC filing fees) and any
preliminary materials related thereto and (ii) the filings of the premerger
notification and report forms under the HSR Act and any applicable antitrust,
competition or similar laws of any foreign jurisdiction (including filing fees).
SECTION 5.7 Public Announcements. Apogent and Fisher will use commercially
reasonable efforts to consult with each other before issuing, and will provide
each other the opportunity to review, comment upon and concur with, and use
commercially reasonable efforts to agree on, any press release or other public
statements with respect to the transactions contemplated by this Agreement,
including the Merger, and shall not issue any such press release or make any
such public statement prior to such consultation, except as either party may
determine is required by Applicable Laws, court process or by obligations
pursuant to any listing agreement with any national securities exchange or stock
market. The parties agree that the initial press release to be issued with
respect to the transactions contemplated by this Agreement shall be in the form
heretofore agreed to by the parties.
SECTION 5.8 Listing. Fisher shall use commercially reasonable efforts to
cause the Fisher Common Stock issuable under Article II, and those shares of
Fisher Common Stock required to be reserved for issuance in connection with the
Merger, to be authorized for listing on the NYSE, upon official notice of
issuance.
SECTION 5.9 Tax-Free Reorganization Treatment. Fisher and Apogent hereby
adopt this Agreement as a plan of reorganization within the meaning of Treasury
Regulations Sections 1.368-2(g) and 1.368-3(a). Fisher and Apogent intend that
the Merger will qualify as a reorganization within the meaning of Section 368(a)
of the Code, and each shall, and shall cause its respective Subsidiaries to, use
its reasonable best efforts to cause the Merger to so qualify. Neither Fisher,
Merger Sub nor Apogent shall take any action, cause or permit any action to be
taken, or fail to take any action, that would reasonably be expected to cause
the Merger to fail to qualify as a reorganization within the meaning of Section
368(a) of the Code.
SECTION 5.10 Conveyance Taxes. Apogent and Fisher shall cooperate in the
preparation, execution and filing of all returns, questionnaires, applications
or other documents regarding any real property transfer or gains, sales, use,
transfer, value added, stock transfer and stamp taxes, any transfer, recording,
registration and other fees or any similar taxes which become payable in
connection with the transactions contemplated by this Agreement that are
required or permitted to be filed on or before the Effective Time. Apogent shall
pay on behalf of its shareholders and out of its own funds any such Taxes or
fees which become payable in connection with the transactions contemplated by
this Agreement for which such shareholders are primarily liable and in no event
shall Fisher pay such amounts.
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SECTION 5.11 Equity Awards and Employee Benefits.
(a) (i) At the Effective Time, each then outstanding Apogent
Option, whether or not exercisable at the Effective Time, shall become fully
vested and exercisable and will be assumed by Fisher, which shall continue to
treat such Apogent Options as fully vested and exercisable. Subject to, and in
accordance with, the terms of the applicable Apogent Stock Plan and option award
agreement, each Apogent Option so assumed by Fisher under this Agreement will
otherwise continue to have, and be subject to, the same terms and conditions set
forth in the applicable Apogent Option (including any applicable option award
agreement or other document evidencing such Apogent Option) immediately prior to
the Effective Time (including any repurchase rights), except that (A) each
Apogent Option will be exercisable for that number of whole shares of Fisher
Common Stock equal to the product of the number of shares of Apogent Common
Stock that were issuable upon exercise of such Apogent Option immediately prior
to the Effective Time (disregarding any vesting schedule applicable to such
option) multiplied by the Exchange Ratio, rounded down to the nearest whole
number of shares of Fisher Common Stock and (B) the per share exercise price for
the shares of Fisher Common Stock issuable upon exercise of such assumed Apogent
Option will be equal to the quotient determined by dividing the exercise price
per share of Apogent Common Stock of such Apogent Option by the Exchange Ratio,
rounded up to the nearest whole cent.
(ii) Fisher shall take all requisite action such that, at the
Effective Time, all awards based on Apogent Common Stock that are
restricted stock units granted under the Apogent Stock Plans ("Apogent
Restricted Stock Units") outstanding immediately prior to the Effective
Time shall become fully vested and nonforfeitable immediately prior to the
Effective Time in accordance with Section 2.1(d).
(iii) Apogent shall, and shall be permitted under this
Agreement, to take all corporate action necessary, including, but not
limited to, amending any Apogent Option, Apogent equity award agreement
thereunder, or Apogent Stock Plan, to effectuate the provisions of Section
5.11(a)(i) and (ii). In addition, Fisher shall, or shall cause the
Surviving Corporation to, cooperate with Apogent and take all requisite
action to effectuate such provisions. As soon as reasonably practicable,
but in no event later than 10 business days following the Effective Time,
Fisher will (A) issue to each holder of an assumed Apogent Option a
document evidencing the foregoing assumption of such Apogent Option by
Fisher, (B) issue appropriate notices setting forth such holders' rights
pursuant to the assumed Apogent Options (including that, as applicable,
pursuant to the terms of the Apogent Stock Plans, the Merger constitutes a
"Change in Control" (or "Change of Control," as applicable) (as either
such term is defined in each applicable Apogent Stock Plan)), and (C)
issue appropriate notices to each holder of an assumed Apogent Option or
any Apogent Restricted Stock Units setting forth the effect of the Merger
on the Apogent Options and the Apogent Restricted Stock Units. Prior to
the Effective Time, Fisher shall take all corporate action necessary to
reserve for issuance a sufficient number of shares of Fisher Common Stock
for delivery in connection with the exercise of the converted Apogent
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Options. The parties shall use their commercially reasonable efforts to
ensure that the conversion of any Apogent Options which are intended to be
"incentive stock options" (as defined in Section 422 of the Code) provided
for in this Section 5.11(a) shall be effected in a manner consistent with
Section 424(a) of the Code.
(b) Apogent shall terminate the Apogent Purchase Plan immediately
prior to the Effective Time. To the extent any offering period under the Apogent
Purchase Plan is in progress prior to such termination, Apogent shall ensure
that such offering period ends immediately prior to such termination, and that
each participant's accumulated contributions for such offering period are
applied towards the purchase of Apogent Common Stock immediately prior to such
termination unless the participant has previously withdrawn from such offering
period in accordance with the terms of such plan.
(c) From and after the Closing Date and for two years thereafter
(the "Benefit Continuation Period"), Fisher shall provide, or cause to be
provided, to current and former employees, directors, and consultants of Apogent
and its Subsidiaries, benefits (other than stock option plans) that in the
aggregate are no less favorable than the benefits provided, in the aggregate,
under the Apogent Benefit Plans in which such current and former employees,
directors and consultants participated immediately prior to the Effective Time
and which plans are set forth in Section 3.1(i)(i)(A) of the Apogent Disclosure
Schedule (or if not so set forth, then such other Apogent Benefit Plans at the
subsidiary level in which such individuals participated immediately prior to the
Effective Time).
(d) Fisher shall, or shall cause the Surviving Corporation to,
take all actions set forth in Section 5.11(d) of the Apogent Disclosure
Schedule.
(e) During the Benefit Continuation Period, post-retirement
medical benefits to former employees of Apogent and its Subsidiaries or any
employees of Apogent and its Subsidiaries who are eligible as of the Closing
Date for post-retirement medical benefits under Apogent Benefit Plans in effect
immediately prior to the Closing Date shall be provided as set forth in Section
5.11(e) of the Apogent Disclosure Schedule.
(f) Notwithstanding anything in this Agreement to the contrary, no
provision of this Agreement shall be deemed to (i) guarantee employment for any
period of time for, or preclude the ability of either party to terminate, any
continuing employee for any reason or (ii) subject to the limitations and
requirements specifically set forth in this Section 5.11, require either party
to continue any Fisher Benefit Plan or Apogent Benefit Plan or prevent the
amendment, modification or termination thereof after the Effective Time.
SECTION 5.12 Fisher Corporate Governance. (a) Board of Directors. On or
prior to the Effective Time, the Board of Directors of Fisher shall cause the
number of directors that will comprise the full Board of Directors of Fisher
immediately following the Effective Time to be 10. Of the members of such Board
of Directors, six shall be current directors of the Board of Directors of Fisher
as identified in Section 5.12 of the Fisher Disclosure Schedule, and four shall
be directors designated by Apogent as identified in Section 5.12 of the Fisher
Disclosure Schedule. Each such director shall serve on the class of the Board of
Directors of
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Fisher immediately following the Effective Time set forth opposite his name in
Section 5.12 of the Fisher Disclosure Schedule.
(b) Other Matters. Immediately following the Effective Time, Frank
H. Jellinek, Jr. shall be appointed as "Chairman Emeritus" of Fisher.
SECTION 5.13 Affiliate Legends. Apogent shall notify Fisher in writing of
the identity of those Persons who are, in Apogent's reasonable judgment,
"affiliates" of Apogent within the meaning of Rule 145 promulgated under the
Securities Act ("Rule 145 Affiliates") prior to the Closing Date. Fisher shall
be entitled to place appropriate legends (reasonably acceptable to Apogent) on
the certificates evidencing any shares of Fisher Common Stock to be received by
Rule 145 Affiliates in the Merger reflecting the restrictions set forth in Rule
145 promulgated under the Securities Act and to issue appropriate stop transfer
instructions to the transfer agent for Fisher Common Stock (provided, that such
legends or stop transfer instructions shall be removed, one year after the
Effective Time, upon the request of any holder of shares of Fisher Common Stock
issued in the Merger if such holder is not then a Rule 145 Affiliate).
SECTION 5.14 Notification of Certain Matters. Fisher shall give prompt
notice to Apogent and Apogent shall give prompt notice to Fisher, as the case
may be, of the occurrence, or failure to occur, of any event, which occurrence
or failure to occur would reasonably be expected to cause (a)(i) any
representation or warranty of such party contained in this Agreement that is
qualified as to "materiality" or "Material Adverse Effect" to be untrue or
inaccurate in any respect or (ii) any other representation or warranty of such
party contained in this Agreement that is not qualified as to "materiality" or
"Material Adverse Effect" to be untrue or inaccurate in any material respect, in
each case at any time from and after the date of this Agreement until the
Effective Time, or (b) any material failure of Fisher and the Merger Sub or
Apogent, as the case may be, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it under this Agreement. In
addition, Fisher shall give prompt notice to Apogent and Apogent shall give
prompt notice to Fisher, as the case may be, of any change or event having, or
which would reasonably be expected to have, a Material Adverse Effect on such
party and its Subsidiaries, taken as a whole, or which would reasonably be
expected to result in the failure of any of the conditions set forth in Article
VI to be satisfied. Notwithstanding the above, the delivery of any notice
pursuant to this Section 5.14 will not limit or otherwise affect the remedies
available hereunder to the party receiving such notice or the conditions to such
party's obligation to consummate the Merger.
SECTION 5.15 Section 16 Matters. Prior to the Effective Time, each of
Fisher and Apogent shall use their commercially reasonable efforts to take all
such steps as may be required (to the extent permitted under Applicable Laws) to
cause any dispositions of Apogent Common Stock (including derivative securities)
or acquisitions of Fisher Common Stock (including derivative securities with
respect to Fisher Common Stock) resulting from the transactions contemplated by
this Agreement by each individual who is subject to the reporting requirements
of Section 16(a) of the Exchange Act with respect to Apogent to be exempt under
Rule 16b-3 promulgated under the Exchange Act, such steps to be taken in
accordance with the No-Action Letter, dated January 12, 1999, issued by the SEC
to Skadden, Arps, Slate, Meagher
71
& Flom LLP. The parties acknowledge that all such above referenced dispositions
and acquisitions are compensatory in nature.
SECTION 5.16 Rights Plans; State Takeover Laws.
(a) Prior to the Effective Time, Apogent shall not redeem the
Apogent Rights or amend, modify (other than to delay any "distribution date"
therein or to render the Apogent Rights inapplicable to the Merger or any action
permitted under this Agreement) or terminate the Apogent Rights Agreement unless
(i) required to do so by order of a court of competent jurisdiction or (ii)
Apogent's Board of Directors, as the case may be, has concluded in good faith,
after consultation with its outside legal counsel, that, in light of a Superior
Proposal with respect to it, the failure to effect such amendment, modification
or termination is reasonably likely to result in a breach of its Board of
Directors' fiduciary obligations to its shareholders under Applicable Laws.
(b) Prior to the Effective Time, neither Apogent nor Fisher shall
take any action to render inapplicable or to exempt any third Person from, any
state takeover law or state law that purports to limit or restrict business
combinations or the ability to acquire or vote shares of capital stock unless
(i) required to do so by order of a court of competent jurisdiction or (ii)
Fisher's or Apogent's Board of Directors, as the case may be, has concluded in
good faith, after consultation with its outside legal counsel, that, in light of
a Superior Proposal with respect to it, the failure to take such action is
reasonably likely to result in a breach of its Board of Directors' fiduciary
obligations to its shareholders or stockholders, as applicable, under Applicable
Laws.
SECTION 5.17 Reservation of Fisher Common Stock. Effective at or prior to
the Effective Time, Fisher shall reserve (free from preemptive rights) out of
its reserved but unissued shares of Fisher Common Stock, for the purposes of
effecting the conversion of the issued and outstanding shares of Apogent Common
Stock pursuant to this Agreement, sufficient shares of Fisher Common Stock to
provide for such conversion as well as the issuance of Fisher Common Stock upon
the exercise of Apogent Options assumed by Fisher under Section 5.11.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1 Conditions to Each Party's Obligation to Effect the Merger.
The obligation of each party to effect the Merger is subject to the satisfaction
or waiver at or prior to the Closing of the following conditions:
(a) Shareholder Approvals. Each of the Fisher Stockholder Approval
and the Apogent Shareholder Approval shall have been obtained.
(b) Antitrust Waiting Periods. The waiting periods (and any
extensions thereof) applicable to the Merger under the HSR Act shall have been
terminated or shall have expired.
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(c) Consents and Approvals. Other than as required by Section
6.1(b), all filings with, and all consents, approvals and authorizations of, any
Governmental Entity required to be made or obtained by Fisher, Apogent or any of
their Subsidiaries to consummate the Merger (i) the failure of which to be made
or obtained would, individually or in the aggregate, have a Material Adverse
Effect on Fisher and its Subsidiaries, taken as a whole (determined, for
purposes of this clause, after giving effect to the Merger) or (ii) which are
specified in Section 6.1(c) of the Apogent Disclosure Schedule and Section
6.1(c) of the Fisher Disclosure Schedule have, in all cases, been made or
obtained and shall be in full force and effect at the Closing.
(d) No Injunctions or Restraints. No judgment, order, decree,
statute, law, ordinance, rule or regulation, or other legal restraint or
prohibition, entered, enacted, promulgated, enforced or issued by any court or
other Governmental Entity of competent jurisdiction (collectively,
"Restraints"), shall be in effect which prohibits, materially restricts, makes
illegal or enjoins the consummation of the transactions contemplated by this
Agreement.
(e) Form S-4. The Form S-4 shall have become effective under the
Securities Act prior to the mailing of the Joint Proxy Statement by each of
Fisher and Apogent to their stockholders or shareholders, as applicable, and no
stop order or proceedings seeking a stop order shall be threatened by the SEC or
shall have been initiated or, to the Knowledge of Fisher or Apogent, threatened
by the SEC.
(f) Listing. The shares of Fisher Common Stock issuable to the
shareholders of Apogent as provided for in Article II shall have been authorized
for listing on the NYSE upon official notice of issuance.
SECTION 6.2 Conditions to Obligations of Apogent. The obligation of
Apogent to effect the Merger is further subject to satisfaction or waiver at or
prior to the Closing of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Fisher and Merger Sub set forth herein shall be true and correct
(without giving effect to any limitation as to "materiality" or "Material
Adverse Effect" set forth therein (other than the representation set forth in
Section 3.2(f)(ii), which shall be read with the Material Adverse Effect
qualification)) both when made and at and as of the Closing Date, as if made at
and as of such time (except to the extent expressly made as of an earlier date,
in which case as of such date), except where the failure of such representations
and warranties to be so true and correct (without giving effect to any
limitation as to "materiality" or "Material Adverse Effect" set forth therein
(other than the representation set forth in Section 3.2(f)(ii), which shall be
read with the Material Adverse Effect qualification)) does not have, and would
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Fisher and its Subsidiaries, taken as a whole.
(b) Performance of Obligations of Fisher and Merger Sub. Each of
Fisher and Merger Sub shall have performed, or complied with, in all material
respects all
73
obligations required to be performed or complied with by it under this Agreement
at or prior to the Closing Date.
(c) No Material Adverse Change. No Material Adverse Change (as
defined in Section 8.3(k)) of Fisher and its Subsidiaries, taken as a whole,
shall have occurred since the date of this Agreement and be continuing.
(d) Officer's Certificate. Apogent shall have received an
officer's certificate duly executed by each of the Chief Executive Officer and
Chief Financial Officer of Fisher to the effect that the conditions set forth in
Sections 6.2(a), (b) and (c) have been satisfied.
(e) Tax Opinion. Apogent shall have received the opinion of
Simpson Thacher & Bartlett LLP, dated as of the Effective Time, to the effect
that the Merger will qualify as a reorganization within the meaning of Section
368(a) of the Code. The issuance of such opinion shall be conditioned upon
receipt by such counsel of customary representation letters from each of Fisher,
Merger Sub and Apogent, in each case, in form and substance reasonably
satisfactory to such counsel, which representation letters shall not have been
withdrawn or modified.
SECTION 6.3 Conditions to Obligations of Fisher and Merger Sub. The
obligations of Fisher and Merger Sub to effect the Merger are further subject to
satisfaction or waiver at or prior to the Closing of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Apogent set forth herein shall be true and correct (without giving
effect to any limitation as to "materiality" or "Material Adverse Effect" set
forth therein (other than the representation set forth in Section 3.1(f)(ii),
which shall be read with the Material Adverse Effect qualification)) both when
made and at and as of the Closing Date, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of
such date), except where the failure of such representations and warranties to
be so true and correct (without giving effect to any limitation as to
"materiality" or "Material Adverse Effect" set forth therein (other than the
representation set forth in Section 3.1(f)(ii), which shall be read with the
Material Adverse Effect qualification)) does not have, and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
on Apogent and its Subsidiaries, taken as a whole.
(b) Performance of Obligations of Apogent. Apogent shall have
performed, or complied with, in all material respects all obligations required
to be performed or complied with by it under this Agreement at or prior to the
Closing Date.
(c) Apogent Rights Agreement. The Apogent Rights issued pursuant
to the Apogent Rights Agreement shall not have become non-redeemable,
exercisable, distributed (separately from Apogent Common Stock) or triggered
pursuant to the terms of such agreement.
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(d) No Material Adverse Change. No Material Adverse Change of
Apogent and its Subsidiaries, taken as a whole, shall have occurred since the
date of this Agreement and be continuing.
(e) Officer's Certificate. Fisher shall have received an officer's
certificate duly executed by each of the Chief Executive Officer and Chief
Financial Officer of Apogent to the effect that the conditions set forth in
Sections 6.3(a), (b), (c) and (d) have been satisfied.
(f) Tax Opinion. Fisher shall have received the opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, dated as of the Effective Time, to the
effect that the Merger will qualify as a reorganization within the meaning of
Section 368(a) of the Code. The issuance of such opinion shall be conditioned
upon receipt by such counsel of customary representation letters from each of
Fisher, Merger Sub and Apogent, in each case, in form and substance reasonably
satisfactory to such counsel, which representation letters shall not have been
withdrawn or modified.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time by action taken or authorized by the Board of
Directors of the terminating party or parties, which action (A) in the case of
Sections 7.1(a), (b)(i), (b)(ii), (c) and (d), may be taken or authorized before
or after the Fisher Stockholder Approval or the Apogent Shareholder Approval, as
the case may be, (B) in the case of Sections 7.1(e), (f), (g) and (h), may be
taken or authorized only before the Fisher Stockholder Approval or Apogent
Shareholder Approval, as the case may be, and (C) in the case of Sections
7.1(b)(iii) and (iv), may be taken or authorized only after the Fisher
Stockholders' Meeting where a vote was taken or the Apogent Shareholders'
Meeting where a vote was taken, as the case may be:
(a) by mutual written consent of Apogent and Fisher, if the Board
of Directors of each so determines;
(b) by written notice of either Apogent or Fisher (as authorized
by the Board of Directors of Apogent or Fisher, as applicable):
(i) if the Merger shall not have been consummated by
September 30, 2004 (the "Outside Date");
(ii) if a Governmental Entity set forth in either Section
7.1(b)(ii) of the Fisher Disclosure Schedule or Section 7.1(b)(ii) of the
Apogent Disclosure Schedule that is of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action (including the
failure to have taken an action), in any case having the effect of
permanently restraining, enjoining or otherwise prohibiting the Merger,
which order, decree, ruling or other action is final and nonappealable;
75
(iii) if the Fisher Stockholder Approval shall not have been
obtained at the Fisher Stockholders' Meeting, or at any adjournment or
postponement thereof, at which the vote was taken;
(iv) if the Apogent Shareholder Approval shall not have been
obtained at the Apogent Shareholders' Meeting, or at any adjournment or
postponement thereof, at which the vote was taken;
(c) by Apogent (as authorized by its Board of Directors) upon a
breach of any representation, warranty, covenant or agreement on the part of
Fisher set forth in this Agreement, or if any representation or warranty of
Fisher shall have become untrue, in either case such that the conditions set
forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as of the time
of such breach or as of the time such representation or warranty shall have
become untrue and in any such case such breach shall be incapable of being cured
or shall not have been cured in all material respects within 10 days after
written notice thereof shall have been received by Fisher;
(d) by Fisher (as authorized by its Board of Directors) upon a
breach of any representation, warranty, covenant or agreement on the part of
Apogent set forth in this Agreement, or if any representation or warranty of
Apogent shall have become untrue, in either case such that the conditions set
forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as of the time
of such breach or as of the time such representation or warranty shall have
become untrue and in any such case such breach shall be incapable of being cured
or shall not have been cured in all material respects within 10 days after
written notice thereof shall have been received by Apogent;
(e) by Apogent (as authorized by its Board of Directors), at any
time prior to Fisher Stockholder Approval, if Fisher, the Fisher Board of
Directors or any committee thereof, for any reason, shall have (i) failed to
call or hold the Fisher Stockholders' Meeting in accordance with Section 5.1(b),
(ii) failed to include in the Joint Proxy Statement distributed to the
stockholders of Fisher its recommendation in favor of the Stock Issuance, (iii)
effected a Change of Recommendation, (iv) failed to reconfirm its recommendation
in favor of the Stock Issuance within 12 calendar days of receipt of a written
request from Apogent to do so, provided, that Apogent shall not make such
request unless prior thereto (x) a Person shall have made to Fisher or its
stockholders, or publicly announced, a proposal, offer or indication of interest
relating to any Acquisition with respect to Fisher or (y) Apogent in good faith
believes Fisher has not complied with its obligations under Articles IV and V
hereto, (v) approved or recommended any Alternative Transaction, or (vi) failed,
within 10 business days after any tender or exchange offer relating to Fisher
Common Stock commenced by any third Person shall have been first published, sent
or given, to have sent to its security holders a statement disclosing that the
Board of Directors of Fisher recommends rejection of such tender offer or
exchange offer;
(f) by Fisher (as authorized by its Board of Directors), at any
time prior to Apogent Shareholder Approval, if Apogent, the Apogent Board of
Directors or any committee thereof, for any reason, shall have (i) failed to
call or hold the Apogent Shareholders' Meeting in accordance with Section
5.1(b), (ii) failed to include in the Joint Proxy Statement
76
distributed to the shareholders of Apogent its recommendation that such
shareholders adopt and approve this Agreement and approve the Merger, (iii)
effected a Change of Recommendation, (iv) failed to reconfirm its recommendation
that shareholders of Apogent adopt and approve this Agreement and approve the
Merger within 12 calendar days of receipt of a written request from Fisher to do
so, provided, that Fisher shall not make such request unless prior thereto (x) a
Person shall have made to Apogent or its shareholders, or publicly announced, a
proposal, offer or indication of interest relating to any Acquisition with
respect to Apogent or (y) Fisher in good faith believes Apogent has not complied
with its obligations under Articles IV and V hereof, (v) approved or recommended
any Alternative Transaction, (vi) failed, within 10 business days after any
tender or exchange offer relating to Apogent Common Stock commenced by any third
Person shall have been first published, sent or given, to have sent to its
security holders a statement disclosing that the Board of Directors of Apogent
recommends rejection of such tender offer or exchange offer;
(g) by Fisher, at any time prior to the Fisher Stockholder
Approval, if (i) the Board of Directors of Fisher authorizes Fisher, subject to
complying with the terms of this Agreement, to enter into a binding written
agreement concerning a transaction that constitutes a Fisher Superior Proposal
and Fisher notifies Apogent in writing that it intends to enter into such an
agreement, attaching the most current version of such agreement (or a
description of all material terms and conditions thereof) to such notice, (ii)
Apogent does not make, within two business days of receipt of Fisher's written
notification of its intention to enter into a binding agreement for a Fisher
Superior Proposal, an offer that the Board of Directors of Fisher determines, in
good faith after consultation with a financial advisor of nationally recognized
reputation, is at least as favorable to Fisher's stockholders as the Fisher
Superior Proposal, it being understood that Fisher shall not enter into any such
binding agreement during such two-day period, and (iii) Fisher, at or prior to
any termination pursuant to this Section 7.1(g), pays to Apogent the Fisher
Termination Fee (as defined below); or
(h) by Apogent, at any time prior to the Apogent Shareholder
Approval, if (i) the Board of Directors of Apogent authorizes Apogent, subject
to complying with the terms of this Agreement, to enter into a binding written
agreement concerning a transaction that constitutes an Apogent Superior Proposal
and Apogent notifies Fisher in writing that it intends to enter into such an
agreement, attaching the most current version of such agreement (or a
description of all material terms and conditions thereof) to such notice, (ii)
Fisher does not make, within two business days of receipt of Apogent's written
notification of its intention to enter into a binding agreement for an Apogent
Superior Proposal, an offer that the Board of Directors of Apogent determines,
in good faith after consultation with a financial advisor of nationally
recognized reputation, is at least as favorable to Apogent's shareholders as the
Apogent Superior Proposal, it being understood that Apogent shall not enter into
any such binding agreement during such two-day period, and (iii) Apogent, at or
prior to any termination pursuant to this Section 7.1(h), pays to Fisher the
Termination Fee.
SECTION 7.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 7.1 hereof and any payment of a Fisher
Termination Fee or Apogent Termination Fee, this Agreement shall forthwith
become void and there shall be no liability on the part of any of the parties,
except (i) as set forth in Sections 5.3(b), 5.6, this
77
Section 7.2 and Section 7.3, as well as Article VIII (other than Section 8.1) to
the extent applicable to such surviving sections, each of which shall survive
termination of this Agreement, and (ii) that nothing herein shall relieve any
party from any further liability for any willful or intentional breach of any
representation or warranty of such party contained herein or any breach of any
covenant or agreement of such party contained herein. No termination of this
Agreement shall affect the obligations of the parties contained in the CDA, all
of which obligations shall survive termination of this Agreement in accordance
with their terms. Payments made pursuant to Section 7.3 shall be in addition to
any other rights, remedies and relief of the parties hereto or with respect to
the subject matter of this Agreement.
SECTION 7.3 Payments.
(a) Payment by Apogent. In the event that this Agreement is
terminated by Apogent pursuant to any of Sections 7.1(b)(iv) or 7.1(h) or by
Fisher pursuant to any of Sections 7.1(b)(iv), 7.1(d) (but, in the case of
Section 7.1(d), only if such termination is due to an intentional breach of any
representation, warranty or covenant by Apogent) or 7.1(f), Apogent shall
promptly, but in no event later than two business days after the date of such
termination (subject to the further provisions of this Section 7.3(a)), pay
Fisher a fee equal to $75 million in immediately available funds (the "Apogent
Termination Fee"); provided, that:
(i) in the case of a termination pursuant to Sections
7.1(b)(iv), 7.1(d) (but, in the case of Section 7.1(d), only if such
termination is due to an intentional breach of any representation,
warranty or covenant by Apogent), 7.1(f)(iv), or 7.1(f)(vi), the Apogent
Termination Fee shall be payable only if following the date hereof and
prior to such termination, any Person shall have made to Apogent or its
shareholders, or publicly announced, a proposal, offer or indication of
interest relating to any Acquisition (as defined in Section 7.3(d)) with
respect to Apogent (such Person being referred to herein as the "Apogent
Third Party Bidder") and within 12 months following termination of this
Agreement, an Acquisition of Apogent is consummated by the Apogent Third
Party Bidder or its Affiliate or Affiliates or Apogent enters into an
agreement providing for an Acquisition of Apogent by the Apogent Third
Party Bidder or its Affiliate or Affiliates, such fee payment to be made
concurrently with the earlier of the consummation of such Acquisition or
the execution of such agreement, as applicable.
(b) Payment by Fisher. In the event that this Agreement is
terminated by Fisher pursuant to any of Sections 7.1(b)(iii) or 7.1(g) or by
Apogent pursuant to any of Sections 7.1(b)(iii), 7.1(c) (but, in the case of
Section 7.1(c), only if such termination is due to an intentional breach of any
representation, warranty or covenant by Fisher) or 7.1(e), Fisher shall
promptly, but in no event later than two business days after the date of such
termination (subject to the further provisions of this Section 7.3(b)), pay
Apogent a fee equal to $75 million in immediately available funds (the "Fisher
Termination Fee"); provided, that
(i) in the case of a termination pursuant to Sections
7.1(b)(iii), 7.1(c) (but, in the case of Section 7.1(c), only if such
termination is due
78
to an intentional breach of any representation, warranty or covenant by
Fisher), 7.1(e)(iv) or 7.1(e)(vi) the Fisher Termination Fee shall be
payable only if following the date hereof and prior to such termination,
any Person shall have made to Fisher or its stockholders, or publicly
announced, a proposal, offer or indication of interest relating to any
Acquisition with respect to Fisher (such Person being referred to herein
as the "Fisher Third Party Bidder") and within 12 months following
termination of this Agreement, an Acquisition of Fisher is consummated by
the Fisher Third Party Bidder or its Affiliate or Affiliates or Fisher
enters into an agreement providing for an Acquisition of Fisher by the
Fisher Third Party Bidder or its Affiliate or Affiliates, such fee payment
to be made concurrently with the earlier of the consummation of such
Acquisition or the execution of such agreement, as applicable.
(c) Interest and Costs; Other Remedies. All payments under this
Section 7.3 shall be made by wire transfer of immediately available funds to an
account designated by the party to receive payment. Each of Fisher and Apogent
acknowledges that the agreements contained in this Section 7.3 are an integral
part of the transactions contemplated by this Agreement and that, without these
agreements, the other party hereto would not enter into this Agreement;
accordingly, if Fisher or Apogent, as the case may be, fails to pay in a timely
manner the amounts due pursuant to this Section 7.3 and, in order to obtain such
payment, the other party hereto makes a claim that results in a judgment against
the party failing to pay for the amounts set forth in this Section 7.3, the
party so failing to pay shall pay to the other party its reasonable costs and
expenses (including reasonable attorneys' fees and expenses) in connection with
such suit, together with interest on the amounts set forth in this Section 7.3
at the rate of interest per annum publicly announced by JP Morgan Chase Bank as
its prime rate at its principal office in New York City, as in effect on the
date such payment was required to be made. Payment of the fees described in this
Section 7.3 shall not be in lieu of damages incurred in the event of breach of
this Agreement, to the extent permitted by Section 7.2.
(d) Certain Definitions. For the purposes of this Section 7.3
only, "Acquisition," with respect to a party hereto, shall mean any of the
following transactions (other than the Merger): (i) a merger, consolidation,
business combination, recapitalization, liquidation, dissolution or similar
transaction involving the party pursuant to which the stockholders or
shareholders, as applicable, of the party immediately preceding such transaction
hold less than 50% of the aggregate equity interests in the surviving or
resulting entity of such transaction or any direct or indirect parent thereof,
(ii) a sale or other disposition by the party or any of its Subsidiaries of
assets representing in excess of 30% of the aggregate fair market value of the
consolidated assets of the party and its Subsidiaries immediately prior to such
sale, or (iii) the acquisition by any Person or group of Persons (including by
way of a tender offer or an exchange offer or issuance by the party or such
Person or group of Persons), directly or indirectly, of beneficial ownership or
a right to acquire beneficial ownership of shares representing in excess of 30%
of the voting power of the then outstanding shares of capital stock of the
Person.
SECTION 7.4 Amendment. Subject to compliance with Applicable Laws, this
Agreement may be amended by the parties at any time before or after the Fisher
Stockholder
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Approval or the Apogent Shareholder Approval; provided, however, that after the
occurrence of either the Apogent Shareholder Approval or the Fisher Stockholder
Approval there may not be, without further approval of the shareholders of
Apogent and Fisher, any amendment of this Agreement that changes the amount or
the form of the consideration to be delivered to the holders of Apogent Common
Stock hereunder, or which by Applicable Laws otherwise expressly requires the
further approval of such shareholders. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties hereto and
duly approved by the parties' respective Boards of Directors or a duly
designated committee thereof.
SECTION 7.5 Extension; Waiver. At any time prior to the Effective Time, a
party may, subject to the proviso of Section 7.4 (and for this purpose treating
any waiver referred to below as an amendment), (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties contained in this Agreement or in any document delivered pursuant to
this Agreement or (c) waive compliance by the other party hereto with any of the
agreements or conditions contained in this Agreement. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. Any extension or waiver
given in compliance with this Section 7.5 or failure to insist on strict
compliance with an obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time. This Section 8.1
shall not limit the survival of any covenant or agreement of the parties in the
Agreement which by its terms contemplates performance after the Effective Time.
SECTION 8.2 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, sent via facsimile (receipt confirmed) or sent by
a nationally recognized overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Apogent to:
Apogent Technologies Inc.
30 Penhallow Street
Portsmouth, NH 03801
Fax No.: (603) 431-0860
Attention: Michael Bresson, General Counsel
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with a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Fax No.: (212) 455-2502
Attention: Gary Horowitz, Esq.
(b) if to Fisher or Merger Sub, to:
Fisher Scientific International Inc.
One Liberty Lane
Hampton, NH 03842
Fax No.: (603) 929-2379
Attention: Todd M. DuChene, General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Fax No.: (212) 735-2000
Attention: Ralph Arditi, Esq.
Nancy A. Lieberman, Esq.
SECTION 8.3 Definitions. For purposes of this Agreement:
(a) An "Affiliate" of any Person means another Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person, where
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management policies of a Person, whether through
the ownership of voting securities, by contract, as trustee or executor, or
otherwise;
(b) An "Alternative Transaction" with respect to a party hereto,
shall mean any of the following transactions: (i) any transaction or series of
related transactions with one or more third Persons involving: (A) any purchase
from such party or acquisition (whether by way of a merger, share exchange,
consolidation, business combination, consolidation or similar transaction) by
any Person or "group" of Persons (as defined under Section 13(d) of the Exchange
Act and the rules and regulations thereunder) of more than a 10% interest in the
total outstanding voting securities of such party or any of its Subsidiaries or
any tender offer or exchange offer that if consummated would result in any
Person or group of Persons beneficially owning 10% or more of the total
outstanding voting securities of such party or any of its Subsidiaries or any
merger, consolidation, business combination or similar transaction involving
such party or any of its Subsidiaries, or (B) any sale, lease exchange,
transfer, license, acquisition
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or disposition of more than 10% of the assets of such party and its
Subsidiaries, taken as a whole, or (ii) any liquidation or dissolution of such
party;
(c) An "Alternative Transaction Proposal" shall mean any offer,
inquiry, proposal or indication of interest (whether binding or non-binding) to
any Person or its stockholders or shareholders, as applicable, relating to an
Alternative Transaction;
(d) "Contract" shall mean any written, oral or other agreement,
contract, subcontract, settlement agreement, lease, sublease, binding
understanding, instrument, note, option, bond, mortgage, indenture, trust
document, loan or credit agreement, warranty, purchase order, license,
sublicense, insurance policy, benefit plan or legally binding commitment or
undertaking of any nature, as in effect as of the date hereof or as may
hereinafter be in effect;
(e) "Convertible Debt" means convertible contingent debt
securities;
(f) "Environmental Laws" means any and all federal, state,
foreign, interstate, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decisions, injunctions, decrees, requirements of
any Governmental Entity, any and all common law requirements, rules and bases of
liability regulating, relating to, or imposing liability or standards of conduct
concerning pollution, Hazardous Materials or protection of human health, safety
or the environment, as currently in effect, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et seq., the
Clean Air Act, 42 U.S.C. Section 7401 et seq., the Toxic Substances Control Act,
15 U.S.C. Section 2601 et seq., the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C., Section 136 et seq., Occupational Safety and Health
Act 29 U.S.C. Section 651 et seq., the Oil Pollution Act of 1990, 33 U.S.C.
Section 2701 et seq., and the Endangered Species Act (16 U.S.C. Section 1531 et
seq.) as such laws have been amended or supplemented, and the regulations
promulgated pursuant thereto, and all analogous state or local statutes;
(g) "Environmental Liabilities" with respect to any Person means
any and all liabilities of or relating to such Person or any of its Subsidiaries
(including any entity which is, in whole or in part, a predecessor of such
Person or any of such Subsidiaries), which (i) arise under or relate to matters
covered by Environmental Laws and (ii) relate to actions occurring or conditions
existing on or prior to the Closing Date;
(h) "Hazardous Materials" means any materials or wastes, defined,
listed, classified or regulated as hazardous, toxic, a pollutant, a contaminant
or dangerous in or under any Environmental Laws including, but not limited to,
petroleum, petroleum products, friable asbestos, urea formaldehyde, radioactive
materials and polychlorinated biphenyls;
(i) "Intellectual Property" shall mean trademarks, service marks,
trade names, brand names, certification marks, designs, logos and slogans,
commercial symbols, business name registrations, domain names, trade dress and
other indications of origin and general intangibles of like nature, the goodwill
associated with the foregoing and registrations in
82
any domestic or foreign jurisdiction of, and applications in any such
jurisdiction to register, the foregoing, including any extension, modification
or renewal of any such registration or application; inventions, discoveries and
biological materials, whether patentable or not and whether or not reduced to
practice, in any domestic or foreign jurisdiction; patents, applications for
patents (including, without limitation, divisions, continuations,
continuations-in-part, reissues and renewal applications), and any renewals,
extensions, supplementary protection certificates or reissues thereof, in any
such jurisdiction; research and development data (including without limitation
the results of research into and development of drug or biologic-based products
and drug delivery systems), formulae, know-how, proprietary processes,
algorithms, models and methodologies, technical information, designs,
procedures, laboratory notebooks, trade secrets and confidential information and
rights in any domestic or foreign jurisdiction to limit the use or disclosure
thereof by any Person; writings and other works of authorship of any type
(including the content contained on any web site), whether copyrightable or not,
in any such jurisdiction; computer software (whether in source code or object
code form), databases, compilations and data; and registrations or applications
for registration of copyrights in any domestic or foreign jurisdiction, and any
renewals or extensions thereof; and any similar intellectual property or
proprietary rights;
(j) "Knowledge" of any Person which is not an individual means,
with respect to a specified matter, the actual knowledge of any of such Person's
and its wholly-owned Subsidiaries' executive officers, general counsel or any
other officer having primary responsibility for such matter and, in the case of
Fisher, includes the actual knowledge of Fisher in-house IP counsel and, in the
case of Apogent, includes the actual knowledge of Apogent in-house IP counsel;
(k) "Material Adverse Change" or "Material Adverse Effect" means,
when used with respect to Fisher or Apogent and their respective Subsidiaries,
any change, event, violation, inaccuracy, circumstance or effect (any such item,
an "Effect") that, individually or when taken together with all other Effects
that have occurred prior to the date of determination of the occurrence of the
Material Adverse Change or Material Adverse Effect, is or is reasonably expected
(i) to be materially adverse to the business, assets (including intangible
assets), liabilities, capitalization, condition (financial or otherwise) or
results of operations of such party and its Subsidiaries, taken as a whole, or
(ii) to impair in any material respect the ability of such party to perform its
obligations under this Agreement or prevent or materially delay the consummation
by such party of any of the transactions contemplated hereby; provided, however,
that, in no event shall any of the following, alone or in combination, be deemed
to constitute, nor shall any of the following be taken into account in
determining whether there has been or will be, a Material Adverse Change with
respect to, or a Material Adverse Effect on, any party and such party's
respective Subsidiaries, taken as a whole: (A) events or circumstances generally
affecting the industry in which Fisher and Apogent operate, and which do not
have a materially disproportionate effect on Fisher or Apogent, as the case may
be, (B) U.S. or global economic conditions, or (C) the execution, delivery,
announcement or performance of this Agreement or the consummation of any
transaction contemplated hereby or (D) changes in Applicable Laws or GAAP;
83
(l) "Multiemployer Plan" means a "multiemployer pension plan," as
that term is defined in Section 3(37) of ERISA;
(m) "Permitted Liens" means (i) mechanics', carriers', workers' or
repairmen's liens arising in the ordinary course of business and securing
payments or obligations that are not delinquent, (ii) Liens for Taxes,
assessments and other similar governmental charges which are not due and payable
and (iii) Liens that arise under zoning, land use and other similar laws and
other imperfections of title or encumbrances, if any, which do not materially
affect the marketability of the property subject thereto and do not materially
impair the use of the property subject thereto as presently used;
(n) "Person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity;
(o) a "Subsidiary" of any Person means another Person, an amount
of the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its Board of Directors or
other governing body is (or, if there are no such voting interests, more than
50% of the equity interests of which are) owned directly or indirectly by such
first Person;
(p) a "Superior Proposal" with respect to a party, means an
unsolicited, bona fide written Alternative Transaction Proposal made by a third
Person to acquire, directly or indirectly, pursuant to a tender offer, exchange
offer, merger, consolidation or other business combination or acquisition
transaction, (A) all or substantially all of the assets of such party or (B)
over 50% of the outstanding voting securities of such party and as a result of
which the stockholders or shareholders, as applicable, of such party immediately
preceding such transaction would hold less than 50% of the aggregate equity
interests in the surviving or resulting entity of such transaction (or its
ultimate parent), which the Board of Directors of such party has in good faith
determined (taking into account, among other things, (1) its consultation with
its outside legal counsel and its financial adviser, (2) all terms and
conditions of such Alternative Transaction Proposal and this Agreement (as it
may be proposed to be amended by the other party hereto), and (3) the relative
impact of the transaction contemplated by such Alternative Transaction Proposal
and this Agreement (as it may be proposed to be amended by the other party
hereto) on the other Persons whose interests the Board may consider under
Applicable Laws) to be more favorable, from a financial point of view, to such
party's stockholders or shareholders, as applicable (in their capacities as
stockholders or shareholders, as applicable), than the terms of this Agreement
(as it may be proposed to be amended by the other party hereto) and to be
reasonably capable in feasibility and certainty of being consummated on the
terms proposed, taking into account all other legal, financial, regulatory and
other aspects of such Alternative Transaction Proposal (including conditions to
consummation such as a financing condition).
SECTION 8.4 Terms Defined Elsewhere. The following terms are defined
elsewhere in this Agreement, as indicated below:
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Term Section
---- -------
Acquisition 7.3(d)
Agreement Preamble
Apogent Preamble
Apogent Balance Sheet 3.1(d)(iv)
Apogent Benefit Plans 3.1(i)(i)
Apogent Bylaws 3.1(a)(ii)
Apogent Charter 3.1(a)(ii)
Apogent Common Stock 2.1
Apogent Disclosure Schedule 3.1
Apogent Leased Real Property 3.1(r)
Apogent Material Contract 3.1(q)(i)
Apogent Option 2.1(d)
Apogent Organizational Documents 3.1(a)(ii)
Apogent Owned Real Property 3.1(r)
Apogent Permits 3.1(g)(i)
Apogent Preferred Stock 3.1(b)(i)
Apogent Purchase Plan 2.1(d)
Apogent Restricted Stock Unit 5.11(a)(ii)
Apogent Rights 3.1(b)(i)
Apogent Rights Agreement 3.1(b)(i)
Apogent SEC Documents 3.1(d)(i)
Apogent Shareholder Approval 3.1(c)(iii)
Apogent Shareholders' Meeting 5.1(b)
Apogent Significant Subsidiaries 3.1(a)(iii)
Apogent Stock Plans 3.1(b)(i)
Apogent Subsidiary Organizational Documents 3.1(a)(ii)
Apogent Termination Fee 7.3(a)
Apogent Third Party Bidder 7.3(a)(i)
Applicable Laws 3.1(g)(ii)
Approval 3.1(i)(ii)
Articles of Merger 1.3
Benefit Continuation Period 5.11(c)
Benefit Plans 3.1(i)(i)
CDA 4.2(c)(i)
Certificates 2.2(b)
Change of Recommendation 4.2(d)(i)
85
Closing 1.2
Closing Date 1.2
Code Recitals
DFI 1.3
Effect 8.3(k)
Effective Time 1.3
ERISA 3.1(i)(i)
ERISA Affiliate 3.1(i)(v)
Exchange Act 3.1(c)(v)(B)(2)
Exchange Agent 2.2(a)
Exchange Fund 2.2(a)
Exchange Ratio 2.1(a)
FDA 3.1(g)(i)
FDCA 3.1(g)(i)
Form S-4 3.1(e)
Fisher Preamble
Fisher 1998 Plan 3.2(b)(i)
Fisher 2001 Plan 3.2(b)(i)
Fisher 2003 Plan 3.2(b)(i)
Fisher Balance Sheet 3.2(d)(iv)
Fisher Benefit Plans 3.2(i)(i)
Fisher Bylaws 3.2(a)(ii)
Fisher Charter 3.2(a)(ii)
Fisher Common Stock 2.1(a)
Fisher Disclosure Schedule 3.2
Fisher Leased Real Property 3.2(r)
Fisher Material Contract 3.2(q)(i)
Fisher Options 3.2(b)(ii)
Fisher Organizational Documents 3.2(a)(ii)
Fisher Owned Real Property 3.2(r)
Fisher Permits 3.2(g)(i)
Fisher Preferred Stock 3.2(b)(i)
Fisher SEC Documents 3.2(d)(i)
Fisher Significant Subsidiaries 3.2(a)(iii)
Fisher Stock Plans 3.2(b)(i)
Fisher Stockholder Approval 3.2(c)(iii)
Fisher Stockholders' Meeting 5.1(b)
Fisher Subsidiary Organizational Documents 3.2(a)(ii)
86
Fisher Termination Fee 7.3(b)
Fisher Third Party Bidder 7.3(b)(i)
Funded Retirement Plan 3.1(i)(v)
GAAP 3.1(d)(iii)
Goldman Sachs 3.2(o)
Governmental Entity 3.1(c)(v)
HSR Act 3.1(c)(v)(A)
Indemnified Parties 5.5(a)
Joint Proxy Statement 3.1(c)(v)(B)(1)
Lazard 3.2(o)
Lehman 3.1(o)
Liens 3.1(a)(iii)
Merger Recitals
Merger Consideration 2.1(a)
Merger Sub Preamble
NLRB 3.1(h)(ii)(C)
NYSE 2.1(e)
Outside Date 7.1(b)(i)
Public Health Service Act 3.1(g)(ii)
Restraints 6.1(d)
Rule 145 Affiliates 5.13
SEC 3.1(a)(iii)
Securities Act 3.1(d)(i)
SOX 3.1(d)(i)
Stock Issuance Recitals
Surviving Corporation 1.1
Tax Authority 3.1(j)(xi)
Tax Return 3.1(j)(xi)
Taxes 3.1(j)(xi)
Voting Debt 3.1(b)(iii)
WBCL Recitals
SECTION 8.5 Interpretation. When a reference is made in this Agreement to
an Article, Section or Exhibit, such reference shall be to an Article or Section
of, or an Exhibit to, this Agreement unless otherwise indicated. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." The words
"hereof," "herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. All terms defined in this Agreement shall have the
defined
87
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein. The definitions contained in
this Agreement are applicable to the singular as well as the plural forms of
such terms and to the masculine as well as to the feminine and neuter genders of
such term. Any agreement, instrument or statute defined or referred to herein or
in any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and assigns.
SECTION 8.6 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
SECTION 8.7 Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the CDA and the documents and instruments referred to herein) (a)
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement and neither party is relying on any other oral
or written representation, agreement or understanding and (b) except for the
provisions of Section 5.5 (which are intended to benefit the Indemnified
Parties, including Indemnified Parties who or which are not parties hereto), is
not intended to confer upon any Person other than the parties any rights or
remedies.
SECTION 8.8 Governing Law. This Agreement and any disputes arising out of
or related to this Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflict of laws thereof,
provided, however, that the Merger shall be governed by the WBCL.
SECTION 8.9 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by either of the parties hereto without
the prior written consent of the other party. Any assignment in violation of the
preceding sentence shall be void. Subject to the preceding two sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 8.10 Consent to Jurisdiction. Each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any federal court
located in the State of Delaware or any Delaware state court in the event any
dispute arises out of this Agreement or any of the transactions contemplated by
this Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
and (c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other than a
federal court sitting in the State of Delaware or a Delaware state court.
88
SECTION 8.11 Headings, etc. The headings and table of contents contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 8.12 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect, insofar as the foregoing can be
accomplished without materially affecting the economic benefits anticipated by
the parties to this Agreement. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by Applicable Laws in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 8.13 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
SECTION 8.14 Waiver of Jury Trial. EACH OF FISHER, MERGER SUB AND APOGENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HERBY OR THE ACTIONS
OF FISHER, MERGER SUB OR APOGENT IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
AND ENFORCEMENT OF THIS AGREEMENT.
SECTION 8.15 Specific Performance. The parties agree that irreparable
damage would occur and that the parties would not have any adequate remedy at
law in the event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any federal court located in the
State of Delaware or in Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, Apogent, Fisher and Merger Sub have caused this
Agreement to be executed under seal by their respective officers thereunto duly
authorized, all as of the date first written above.
APOGENT TECHNOLOGIES INC.
By: /s/ Frank H. Jellinek, Jr.
_________________________________
Name: Frank H. Jellinek, Jr.
Title: Chief Executive Officer
FISHER SCIENTIFIC INTERNATIONAL INC.
By: /s/ Todd M. DuChene
_________________________________
Name: Todd M. DuChene
Title: Vice President, General
Counsel and Secretary
FOX MERGER CORPORATION
By: /s/ Todd M. DuChene
_________________________________
Name: Todd M. DuChene
Title: President
Exhibit A
ARTICLES OF INCORPORATION
OF
FOX MERGER CORPORATION
The undersigned, acting as an incorporator of a corporation under the
Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes,
hereby adopts the following articles of incorporation for the purpose of forming
the corporation herein described (the "Corporation").
ARTICLE I
The name of the Corporation is Fox Merger Corporation.
ARTICLE 2
The aggregate number of shares that the Corporation shall have authority to
issue is One Thousand (1,000), consisting of one class only, designated as
"Common Stock," with a par value of $.01 per share.
ARTICLE 3
The address of the initial registered office of the Corporation is 8025
Excelsior Drive, Suite 200, Madison, Wisconsin 53717. The name of the
Corporation's initial registered agent at such address is C T Corporation
System.
ARTICLE 4
The Bylaws of the Corporation may provide for a greater or lower quorum
requirement or a greater voting requirement for shareholders or voting groups of
shareholders than is provided by the Wisconsin Business Corporation Law.
ARTICLE 5
The name and address of the sole incorporator of the Corporation is Russell
E. Ryba, Foley & Lardner LLP, 777 East Wisconsin Avenue, Milwaukee, Wisconsin
53202.
* * * * *
Executed in duplicate as of this 10th day of March, 2004.
/s/ Russell E. Ryba
---------------------------------
Russell E. Ryba
Sole Incorporator
- --------------
This instrument was drafted by, and should be returned to, Russell E. Ryba,
Foley & Lardner LLP, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202;
telephone number (414) 297-5668.