AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER BY AND AMONG FISHER SCIENTIFIC INTERNATIONAL INC., FOX MERGER CORPORATION AND APOGENT TECHNOLOGIES INC.

Agreement and Plan of Merger

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FISHER SCIENTIFIC INTERNATIONAL INC., | FOX MERGER CORPORATION | APOGENT TECHNOLOGIES INC.

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Title: AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER BY AND AMONG FISHER SCIENTIFIC INTERNATIONAL INC., FOX MERGER CORPORATION AND APOGENT TECHNOLOGIES INC.
Governing Law: Delaware Date: 4/16/2004
Industry: Scientific and Technical Instr. Law Firm: Simpson Thacher & Bartlett LLP; Skadden, Arps, Slate, Meagher & Flom LLP Sector: Technology

Exhibit 2.1

AMENDED AND RESTATED

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,

AS AMENDED APRIL 16, 2004

AMENDED AND RESTATED 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			7
SECTION 3.1 Representations and Warranties of Apogent			7
(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			13
(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			24
(l) Environmental Matters			24
(m) Intellectual Property			25
(n) State Takeover Statutes			26
(o) Brokers			26
(p) Opinion of Financial Advisor			27
(q) Material Contracts			27
(r) Real Property			29
(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


(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			38
(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


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

iii

AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER

THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of March 17, 2004, and amended on April 16, 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;

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; and

WHEREAS, the parties hereto entered into a Merger Agreement on March 17, 2004 and wish to amend and restate such Merger Agreement as set forth herein.

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:

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. The Apogent Charter (as defined in Section 3.1(a)(ii)), as in effect immediately prior to the Effective Time, 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. The Apogent Bylaws (as defined in Section 3.1(a)(ii)), as in effect immediately prior to the Effective Time, shall thereafter be the bylaws of the Surviving Corporation, until amended in accordance with Applicable Laws and as provided in such bylaws.

SECTION 1.6 Directors and Officers of the Surviving Corporation. The directors and officers of Apogent immediately prior to the Effective Time shall be the directors and officers of the Surviving Corporation, each to hold office in accordance with the articles of incorporation and bylaws of the Surviving Corporation and Applicable Laws. Immediately after the Effective Time, Fisher and the Surviving Corporation shall take all action necessary to elect and/or appoint as directors and officers of the Surviving Corporation designees of Fisher so that such designees constitute the entire board of directors and the officers, respectively, of the Surviving Corporation.

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”):

(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 and become 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.

(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 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).

(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.

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.

(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 2¼% 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, 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, 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)(iv) 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.

(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, 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.

(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.

(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.

(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-K 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, 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 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 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 3.1(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. óó 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 3.1(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 Apogent 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) 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 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 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, 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.

(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 (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 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 § 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.

(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 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.

(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 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 $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 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 3.2(d)(i), 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 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 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 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 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 (subject to Section 180.0622(2)(b) of the WBCL, as judicially interpreted, to the extent applicable) 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.

(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, insolvency, reorganization, moratorium or other laws rela

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