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EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
FISHER SCIENTIFIC INTERNATIONAL INC.,
FOX MERGER CORPORATION
AND
APOGENT TECHNOLOGIES INC.
DATED AS OF MARCH 17, 2004
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AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
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ARTICLE I THE
MERGER.....................................................................
2
SECTION 1.1 The
Merger...............................................................
2
SECTION 1.2
Closing..................................................................
2
SECTION 1.3 Effective
Time...........................................................
2
SECTION 1.4 Effects of the
Merger....................................................
2
SECTION 1.5 Organizational Documents of the
Surviving Corporation.................... 2
SECTION 1.6 Directors and Officers of the
Surviving Corporation...................... 3
SECTION 1.7 Alternative
Structure....................................................
3
ARTICLE II EFFECTS OF THE MERGER; EXCHANGE
OF CERTIFICATES............................... 3
SECTION 2.1 Effect on Capital
Stock................................................. 3
SECTION 2.2 Exchange of Shares and
Certificates...................................... 5
ARTICLE III REPRESENTATIONS AND
WARRANTIES..............................................
8
SECTION 3.1 Representations and Warranties of
Apogent................................ 8
(a)
Organization, Standing and Corporate Power;
Charter Documents; Subsidiaries.........
8
(b) Capital
Structure..................................................
9
(c) Authority;
Board Approval; Voting Requirements; No Conflict;
Required Filings and Consents
11
(d) SEC
Documents; Financial Statements...............................
14
(e) Information
Supplied.............................................. 15
(f) Absence of
Certain Changes or Events..............................
16
(g) Compliance
with Applicable Laws; Permits; Litigation..............
16
(h) Labor and
Other Employment Matters................................
18
(i) Benefit
Plans.....................................................
19
(j)
Taxes.............................................................
22
(k) Interested
Party Transactions.....................................
25
(l)
Environmental Matters.............................................
25
(m) Intellectual
Property............................................. 25
(n) State
Takeover Statutes...........................................
26
(o) Brokers
..........................................................
27
(p) Opinion of
Financial Advisor......................................
27
(q) Material
Contracts................................................
27
(r) Real
Property.....................................................
30
(s) Apogent
Rights Agreement..........................................
30
SECTION 3.2 Representations and Warranties of
Fisher and Merger Sub................. 30
(a)
Organization, Standing and Corporate Power; Charter
Documents; Subsidiaries........
31
(b) Capital
Structure.................................................
32
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(c) Authority;
Board Approval; Voting Requirements; No Conflict;
Required Filings and Consents
34
(d) SEC
Documents; Financial Statements...............................
36
(e) Information
Supplied.............................................. 38
(f) Absence of
Certain Changes or Events..............................
39
(g) Compliance
with Applicable Laws; Permits; Litigation..............
39
(h) Labor and
Other Employment Matters................................
41
(i) Benefit
Plans.....................................................
42
(j)
Taxes.............................................................
44
(k) Interested
Party Transactions.....................................
46
(l)
Environmental Matters.............................................
46
(m) Intellectual
Property............................................. 47
(n) State
Takeover Statutes...........................................
48
(o) Brokers
..........................................................
48
(p) Opinion of
Financial Advisor......................................
48
(q) Material
Contracts................................................
48
(r) Real
Property.....................................................
51
(s) Merger Sub
Approval...............................................
52
ARTICLE IV COVENANTS RELATING TO CONDUCT OF
BUSINESS.................................... 52
SECTION 4.1 Conduct of
Business.....................................................
52
SECTION 4.2 No
Solicitation.........................................................
59
ARTICLE V ADDITIONAL
AGREEMENTS.........................................................
62
SECTION 5.1 Preparation of SEC Documents;
Shareholders' Meetings.................... 62
SECTION 5.2 Accountant's
Letters....................................................
64
SECTION 5.3 Access to Information;
Confidentiality.................................. 64
SECTION 5.4 Reasonable
Efforts......................................................
65
SECTION 5.5 Indemnification and
Insurance........................................... 67
SECTION 5.6 Fees and
Expenses.......................................................
68
SECTION 5.7 Public
Announcements....................................................
68
SECTION 5.8
Listing.................................................................
68
SECTION 5.9 Tax-Free Reorganization
Treatment....................................... 68
SECTION 5.10 Conveyance
Taxes........................................................
68
SECTION 5.11 Equity Awards
and Employee Benefits.....................................
69
SECTION 5.12 Fisher
Corporate Governance.............................................
70
SECTION 5.13 Affiliate
Legends.......................................................
71
SECTION 5.14 Notification of
Certain Matters.........................................
71
SECTION 5.15 Section 16
Matters......................................................
71
SECTION 5.16 Rights Plans;
State Takeover Laws.......................................
72
SECTION 5.17 Reservation of
Fisher Common Stock......................................
72
ARTICLE VI CONDITIONS
PRECEDENT.........................................................
72
SECTION 6.1 Conditions to Each Party's
Obligation to Effect the Merger.............. 72
SECTION 6.2 Conditions to Obligations of
Apogent.................................... 73
SECTION 6.3 Conditions to Obligations of
Fisher and Merger Sub...................... 74
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ARTICLE VII TERMINATION, AMENDMENT AND
WAIVER........................................... 75
SECTION 7.1
Termination.............................................................
75
SECTION 7.2 Effect of
Termination...................................................
77
SECTION 7.3
Payments................................................................
78
SECTION 7.4
Amendment...............................................................
79
SECTION 7.5 Extension;
Waiver.......................................................
80
ARTICLE VIII GENERAL
PROVISIONS.........................................................
80
SECTION 8.1 Nonsurvival of Representations and
Warranties........................... 80
SECTION 8.2
Notices.................................................................
80
SECTION 8.3
Definitions.............................................................
81
SECTION 8.4 Terms Defined
Elsewhere.................................................
84
SECTION 8.5
Interpretation..........................................................
87
SECTION 8.6
Counterparts............................................................
88
SECTION 8.7 Entire Agreement; No Third-Party
Beneficiaries.......................... 88
SECTION 8.8 Governing
Law...........................................................
88
SECTION 8.9
Assignment..............................................................
88
SECTION 8.10 Consent to
Jurisdiction.................................................
88
SECTION 8.11 Headings,
etc...........................................................
89
SECTION 8.12
Severability............................................................
89
SECTION 8.13 Failure or
Indulgence Not Waiver; Remedies Cumulative...................
89
SECTION 8.14 Waiver of Jury
Trial....................................................
89
SECTION 8.15 Specific
Performance....................................................
89
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT
AND PLAN OF MERGER (this "Agreement") is made and entered
into as of March 17, 2004, by and among
FISHER SCIENTIFIC INTERNATIONAL INC., a
Delaware corporation ("Fisher"), FOX MERGER
CORPORATION, a Wisconsin corporation
and a direct wholly-owned subsidiary of
Fisher ("Merger Sub"), and APOGENT
TECHNOLOGIES INC., a Wisconsin corporation
("Apogent").
W I T N E S S E T H:
WHEREAS,
the respective Boards of Directors of Fisher, Merger Sub and
Apogent have deemed it advisable and fair
to and in the best interests of their
respective corporations and stockholders or
shareholders, as applicable, that
Fisher and Apogent engage in a business
combination in order to advance their
respective long-term strategic business
interests; and
WHEREAS,
in furtherance thereof, the respective Boards of Directors of
Fisher, Merger Sub and Apogent have
approved this Agreement and the merger of
Merger Sub with and into Apogent with
Apogent continuing as the surviving
corporation (the "Merger"), upon the terms
and subject to the conditions set
forth in this Agreement and in accordance
with the provisions of the Wisconsin
Business Corporation Law (the "WBCL");
and
WHEREAS,
the Board of Directors of Apogent has approved and has
determined
to recommend to its shareholders the
approval and adoption of this Agreement and
the Merger; and
WHEREAS,
the Board of Directors of Fisher has approved, and has
determined
to recommend to its stockholders approval
of, the issuance of shares of Fisher
Common Stock (as defined in Section 2.1(a))
in connection with the Merger (the
"Stock Issuance"); and
WHEREAS,
Fisher, as the sole shareholder of Merger Sub, has approved
this
Agreement and the Merger; and
WHEREAS,
for United States federal income tax purposes, it is intended
that the Merger shall qualify as a
reorganization within the meaning of Section
368(a) of the Internal Revenue Code of
1986, as amended (the "Code"), and this
Agreement is intended to be, and is hereby,
adopted as a plan of reorganization
within the meaning of Section 368 of the
Code.
NOW,
THEREFORE, in consideration of the foregoing and the
representations,
warranties, covenants and agreements set
forth herein, and for other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties agree as
follows:
1
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ARTICLE I
THE MERGER
SECTION 1.1 The Merger. Upon the
terms and subject to the conditions set
forth in this Agreement, and in accordance
with the WBCL, at the Effective Time
(as defined in Section 1.3), Merger Sub
shall be merged with and into Apogent,
the separate corporate existence of Merger
Sub shall cease and Apogent shall
continue as the surviving corporation in
the Merger (the "Surviving
Corporation") and shall succeed to and
assume all the property, rights,
privileges, powers and franchises of Merger
Sub in accordance with the WBCL.
SECTION
1.2 Closing. The closing of the Merger (the "Closing") shall
take
place at 10:00 a.m., New York time, on a
date to be specified by the parties,
which shall be no later than the second
business day after satisfaction or
waiver of all of the conditions set forth
in Article VI (other than delivery of
items to be delivered at the Closing and
other than those conditions that by
their nature are to be satisfied at the
Closing, it being understood that the
occurrence of the Closing shall remain
subject to the delivery of such items and
the satisfaction or waiver of such
conditions at the Closing) at the offices of
Skadden, Arps, Slate, Meagher & Flom
LLP, Four Times Square, New York, New York
10036, unless another time, date or place
is agreed to in writing by the parties
hereto. The date on which the Closing
occurs is referred to herein as the
"Closing Date."
SECTION
1.3 Effective Time. Subject to the terms and conditions of this
Agreement, as soon as practicable on the
Closing Date, the parties shall cause
the Merger to be consummated by filing
articles of merger in such form as
required by, and executed in accordance
with, the relevant provisions of the
WBCL (the "Articles of Merger") with the
Department of Financial Institutions of
the State of Wisconsin (the "DFI") and
shall make all other filings or
recordings required under the WBCL. The
Merger shall become effective at such
time as the Articles of Merger are duly
filed with the DFI, or at such
subsequent date or time as Fisher and
Apogent shall agree and specify in the
Articles of Merger, which date shall be not
more than 90 days after the date the
Articles of Merger are received for filing.
The time at which the Merger becomes
effective is referred to herein as the
"Effective Time."
SECTION
1.4 Effects of the Merger. At the Effective Time, the Merger
shall
have the effects set forth in this
Agreement and in the applicable provisions of
the WBCL.
SECTION
1.5 Organizational Documents of the Surviving Corporation. At
the
Effective Time, the Apogent Charter (as
defined in Section 3.1(a)(ii)) shall be
amended and restated in its entirety to be
identical to the articles of
incorporation of Merger Sub, as in effect
immediately prior to the Effective
Time and as set forth in Exhibit A, and
shall thereafter be the articles of
incorporation of the Surviving Corporation,
until amended in accordance with
Applicable Laws (as defined in Section
3.1(g)(ii)) and as provided in such
articles of incorporation; provided,
however, that at the Effective Time,
Article I of the articles of incorporation
of the Surviving Corporation shall be
amended and restated in its entirety to
read as follows: "The name of the
corporation is Apogent Technologies Inc."
At the Effective Time,
2
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the Apogent Bylaws (as defined in Section
3.1(a)(ii)) shall be amended and
restated in their entirety to be identical
to the bylaws of Merger Sub, as in
effect immediately prior to the Effective
Time, until thereafter amended in
accordance with Applicable Laws and as
provided in such bylaws.
SECTION
1.6 Directors and Officers of the Surviving Corporation. The
directors of Merger Sub immediately prior
to the Effective Time shall be the
directors of the Surviving Corporation,
each to hold office in accordance with
the articles of incorporation and bylaws of
the Surviving Corporation and
Applicable Laws. The officers of the
Surviving Corporation shall be the officers
of Apogent immediately prior to the
Effective Time, each to hold office in
accordance with the articles of
incorporation and bylaws of the Surviving
Corporation and Applicable Laws.
SECTION
1.7 Alternative Structure. Apogent and Fisher may mutually
agree
in writing to cause the "Merger" to be a
merger of Apogent with and into Merger
Sub at the Effective Time, in which case,
following the "Merger," the separate
corporate existence of Apogent will cease
and Merger Sub shall continue as the
Surviving Corporation, at any time prior to
receipt of both Apogent Shareholder
Approval (as defined in Section
3.1(c)(iii)) and Fisher Stockholder Approval, or
at any time thereafter if, with appropriate
disclosure, any required further
approval of the revised structure is
obtained from the shareholders of Apogent
and the stockholders of Fisher, as
applicable; provided, however, that (a) any
such change to the structure of the Merger
would not affect the qualification of
the Merger as a reorganization within the
meaning of Section 368(a) of the Code,
(b) any such change to the structure of the
Merger would not affect the proposed
accounting treatment for the Merger or the
tax treatment to Fisher, Apogent or
their stockholders or shareholders, as
applicable, or otherwise prejudice
Fisher, Apogent or their stockholders or
shareholders, as applicable, or, with
respect to Section 5.5, materially
prejudice any third party beneficiary
thereof, (c) any such change to the
structure of the Merger would not delay the
consummation of the Merger or any of the
other transactions contemplated hereby
in any respect and (d) any such change to
the structure of the Merger would not
in any way affect the corporate governance
structure of Fisher, Apogent or the
Surviving Corporation. Apogent and Fisher
agree to consider in good faith the
request of the other party to revise the
structure of the Merger from that set
forth herein and, upon mutual written
agreement to revise the structure of the
Merger, shall, subject to the foregoing,
take any action necessary to permit the
provisions of this Article I to be
effective and shall make such other changes
that are necessary to be made to reflect
the change in structure that has been
agreed.
ARTICLE II
EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES
SECTION
2.1 Effect on Capital Stock. Subject to the terms and
conditions
of this Agreement, at the Effective Time,
by virtue of the Merger and without
any action on the part of Fisher, Merger
Sub, Apogent or the holders of any
shares of common stock, par value $0.01 per
share, of Apogent, "Apogent Common
Stock"):
3
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(a) Conversion of Apogent Common Stock. Subject to Sections
2.1(e)
and 2.1(f), each share of Apogent Common
Stock issued and outstanding
immediately prior to the Effective Time,
other than any shares of Apogent Common
Stock to be canceled pursuant to Section
2.1(c), shall be automatically
converted into the right to receive .56
(the "Exchange Ratio") fully paid and
nonassessable shares of common stock, par
value $0.01 per share ("Fisher Common
Stock"), of Fisher (the "Merger
Consideration"). As a result of the Merger, at
the Effective Time, each holder of a
Certificate (as defined in Section 2.2(b))
shall cease to have any rights with respect
thereto, except the right to receive
the Merger Consideration payable in respect
of the shares of Apogent Common
Stock represented by such Certificate
immediately prior to the Effective Time,
any cash in lieu of fractional shares
payable pursuant to Section 2.1(e) and any
dividends or other distributions payable
pursuant to Section 2.2(c), all to be
issued or paid, without interest, in
consideration therefor upon the surrender
of such Certificate in accordance with
Section 2.2(b) (or, in the case of a
lost, stolen or destroyed Certificate,
Section 2.2(i)).
(b) Capital Stock of Merger Sub. Each share of common stock,
par
value $0.01 per share, of Merger Sub issued
and outstanding immediately prior to
the Effective Time shall be converted into
one fully paid and nonassessable
share of common stock, par value $0.01 per
share, of the Surviving Corporation.
(c) Cancellation of Treasury Shares. Each share of Apogent
Common
Stock held in the treasury of Apogent, if
any, shall automatically be
extinguished without any conversion, and no
consideration shall be delivered in
respect thereof or any shares of Apogent
Common Stock owned, beneficially or of
record, by any Subsidiary of Apogent.
(d) Apogent Options and Employee Stock Purchase Plans. At the
Effective Time, (i) all options to purchase
Apogent Common Stock (each, an
"Apogent Option") and all Apogent
Restricted Stock Units (as defined in Section
5.11(a)(ii)) issued and outstanding under
each Apogent Stock Plan (as defined in
Section 3.1(b)(i)) shall vest (to the
extent presently unvested) and, in the
case of Apogent Restricted Stock Units,
become nonforfeitable and, in the case
of Apogent Options, become exercisable and
be assumed by Fisher in accordance
with Section 5.11(a) and (ii) all rights
outstanding under Apogent's Employee
Stock Purchase Plan (the "Apogent Purchase
Plan"), shall be treated as set forth
in Section 5.11(b).
(e) Fractional Shares. No fraction of a share of Fisher Common
Stock
will be issued by virtue of the Merger, but
in lieu thereof each holder of
shares of Apogent Common Stock who would
otherwise be entitled to a fraction of
a share of Fisher Common Stock (after
aggregating all shares of Fisher Common
Stock that otherwise would be received by
such holder) shall, upon surrender of
such holder's Certificate or Certificates,
receive from Fisher an amount of cash
(rounded to the nearest whole cent),
without interest, equal to the product of:
(i) the fractional share interest (after
aggregating all shares of Fisher Common
Stock that would otherwise be received by
such holder) which such holder would
otherwise receive, multiplied by (ii) the
closing price of one share of Fisher
Common Stock on the New York Stock Exchange
("NYSE") Composite Transactions Tape
ending on the trading day one day prior to
the Effective Time.
4
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(f) Adjustments to Exchange Ratio. The Exchange Ratio and the
Merger
Consideration shall be adjusted to reflect
fully the appropriate effect of any
stock split, split-up, reverse stock split,
stock dividend (including any
dividend or distribution of securities
convertible into Fisher Common Stock or
Apogent Common Stock), reorganization,
recapitalization, reclassification or
other like change with respect to Fisher
Common Stock or Apogent Common Stock
having a record date occurring on or after
the date hereof and prior to the
Effective Time.
SECTION
2.2 Exchange of Shares and Certificates.
(a) Exchange
Agent. At or prior to the Effective Time, Fisher shall
engage an institution reasonably
satisfactory to Apogent to act as exchange
agent in connection with the Merger (the
"Exchange Agent"), pursuant to an
agreement reasonably satisfactory to
Apogent. At the Effective Time, Fisher
shall deposit with the Exchange Agent, in
trust for the benefit of the holders
of shares of Apogent Common Stock
immediately prior to the Effective Time,
certificates representing the shares of
Fisher Common Stock issuable pursuant to
Section 2.1(a). In addition, Fisher shall
make available by depositing with the
Exchange Agent, as necessary from time to
time after the Effective Time, cash in
an amount sufficient to make the payments
in lieu of fractional shares pursuant
to Section 2.1(e) and any dividends or
distributions to which holders of shares
of Apogent Common Stock may be entitled
pursuant to Section 2.2(c). All cash and
certificates representing shares of Fisher
Common Stock deposited with the
Exchange Agent shall hereinafter be
referred to as the "Exchange Fund."
(b) Exchange Procedures. Promptly after the Effective Time, and
in
any event within 10 business days after the
Effective Time, Fisher shall cause
the Exchange Agent to mail to each holder
of record of a certificate or
certificates which immediately prior to the
Effective Time represented
outstanding shares of Apogent Common Stock
(the "Certificates"), which at the
Effective Time were converted into the
right to receive the Merger Consideration
pursuant to Section 2.1 hereof, (i) a
letter of transmittal (which shall specify
that delivery shall be effected, and that
risk of loss and title to the
Certificates shall pass only upon delivery
of the Certificates to the Exchange
Agent and which shall be in form and
substance reasonably satisfactory to Fisher
and Apogent) and (ii) instructions for use
in effecting the surrender of the
Certificates in exchange for certificates
representing whole shares of Fisher
Common Stock, cash in lieu of any
fractional shares pursuant to Section 2.1(e)
and any dividends or other distributions
payable pursuant to Section 2.2(c).
Upon surrender of Certificates for
cancellation to the Exchange Agent, together
with such letter of transmittal, duly
completed and validly executed in
accordance with the instructions thereto,
and such other documents as may
reasonably be required by the Exchange
Agent, the holder of such Certificates
shall be entitled to receive in exchange
therefor a certificate representing
that number of whole shares of Fisher
Common Stock (after taking into account
all Certificates surrendered by such
holder) to which such holder is entitled
pursuant to Section 2.1 (which shall be in
uncertificated book entry form unless
a physical certificate is requested),
payment by cash or check in lieu of
fractional shares which such holder is
entitled to receive pursuant to Section
2.1(e) and any dividends or distributions
payable pursuant to Section 2.2(c),
and the Certificates so surrendered shall
forthwith be canceled. In the event of
a transfer of ownership of shares of
Apogent Common Stock which is not
registered in the transfer records of
Apogent, a certificate
5
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representing the proper number of shares of
Fisher Common Stock may be issued to
a Person (as defined in Section 8.3(n))
other than the Person in whose name the
Certificate so surrendered is registered,
if such Certificate shall be properly
endorsed or otherwise be in proper form for
transfer and the Person requesting
such issuance shall pay any transfer or
other taxes required by reason of the
issuance of shares of Fisher Common Stock
to a Person other than the registered
holder of such Certificate or establish to
the reasonable satisfaction of Fisher
that such tax has been paid or is not
applicable. Until surrendered as
contemplated by this Section 2.2(b), each
Certificate shall be deemed at any
time after the Effective Time to represent
only the right to receive the Merger
Consideration (and any amounts to be paid
pursuant to Section 2.1(e) or Section
2.2(c)) upon such surrender. No interest
shall be paid or shall accrue on any
amount payable pursuant to Section 2.1(e)
or Section 2.2(c).
(c) Distributions with Respect to Unexchanged Shares. No
dividends
or other distributions with respect to
shares of Fisher Common Stock with a
record date after the Effective Time shall
be paid to the holder of any
unsurrendered Certificate with respect to
the shares of Fisher Common Stock
represented thereby, and no cash payment in
lieu of fractional shares shall be
paid to any such holder pursuant to Section
2.1(e) hereof, until such
Certificate has been surrendered in
accordance with this Article II. Subject to
Applicable Laws, following surrender of any
such Certificate, there shall be
paid to the recordholder thereof, without
interest, (i) promptly after such
surrender, the number of whole shares of
Fisher Common Stock issuable in
exchange therefor pursuant to this Article
II, together with any cash payable in
lieu of a fractional share of Fisher Common
Stock to which such holder is
entitled pursuant to Section 2.1(e) and the
amount of dividends or other
distributions with a record date after the
Effective Time theretofore paid with
respect to such whole shares of Fisher
Common Stock and (ii) at the appropriate
payment date, the amount of dividends or
other distributions with a record date
after the Effective Time and a payment date
subsequent to such surrender payable
with respect to such whole shares of Fisher
Common Stock.
(d) No Further Ownership Rights in Apogent Common Stock. All
shares
of Fisher Common Stock issued upon the
surrender for exchange of Certificates in
accordance with the terms of this Article
II and any cash paid pursuant to
Section 2.1(e) or Section 2.2(c) shall be
deemed to have been issued (or paid)
in full satisfaction of all rights
pertaining to the shares of Apogent Common
Stock previously represented by such
Certificates. After the Effective Time, the
stock transfer books of Apogent shall be
closed and there shall be no further
registration of transfers on the stock
transfer books of the Surviving
Corporation of the shares of Apogent Common
Stock which were outstanding
immediately prior to the Effective Time.
If, after the Effective Time,
Certificates are presented to the Surviving
Corporation or the Exchange Agent
for any reason, they shall be canceled and
exchanged as provided in this Article
II.
(e) Termination of Exchange Fund. Any portion of the Exchange
Fund
which remains undistributed to the holders
of Certificates one year after the
Effective Time shall be delivered to
Fisher, upon demand, and any holders of
Certificates who have not theretofore
complied with this Article II shall
thereafter look only to Fisher for payment
of their claim for the Merger
Consideration, any cash in lieu of
fractional shares of Fisher Common Stock
pursuant to Section 2.1(e) and any
dividends or distributions pursuant to
Section 2.2(c).
6
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(f) No Liability. None of Fisher, Merger Sub, Apogent or the
Exchange Agent or any of their respective
directors, officers, employees and
agents shall be liable to any Person in
respect of any shares of Fisher Common
Stock (or dividends or distributions with
respect thereto) or cash from the
Exchange Fund delivered to a public
official pursuant to any applicable
abandoned property, escheat or similar law.
If any Certificate shall not have
been surrendered prior to seven years after
the Effective Time, or immediately
prior to such earlier date on which any
shares of Fisher Common Stock, any cash
in lieu of fractional shares of Fisher
Common Stock or any dividends or
distributions with respect to Fisher Common
Stock issuable in respect of such
Certificate would otherwise escheat to or
become the property of any
Governmental Entity (as defined in Section
3.1(c)(v)), any such shares, cash,
dividends or distributions in respect of
such Certificate shall, to the extent
permitted by Applicable Laws, become the
property of the Surviving Corporation,
free and clear of all claims or interests
of any Person previously entitled
thereto.
(g) Investment of Exchange Fund. The Exchange Agent shall invest
any
cash included in the Exchange Fund as
directed by Fisher on a daily basis,
provided that no such investment or loss
thereon shall affect the amounts
payable to former shareholders of Apogent
after the Effective Time pursuant to
this Article II. Any interest and other
income resulting from such investment
shall become a part of the Exchange Fund,
and any amounts in excess of the
amounts payable pursuant to this Article II
shall promptly be paid to Fisher.
(h) Withholding Rights. Fisher and the Exchange Agent shall be
entitled to deduct and withhold from any
consideration payable pursuant to this
Agreement to any Person who was a holder of
Apogent Common Stock immediately
prior to the Effective Time such amounts as
Fisher or the Exchange Agent may be
required to deduct and withhold with
respect to the making of such payment under
the Code or any other provision of federal,
state, local or foreign tax law. To
the extent that amounts are so withheld by
Fisher or the Exchange Agent, such
withheld amounts shall be treated for all
purposes of this Agreement as having
been paid to the Person to whom such
consideration would otherwise have been
paid.
(i) Lost, Stolen or Destroyed Certificates. In the event any
Certificates shall have been lost, stolen
or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or
destroyed Certificates, upon the
making of an affidavit of that fact by the
holder thereof, such shares of Fisher
Common Stock as may be required pursuant to
Section 2.1(a), cash for fractional
shares pursuant to Section 2.1(e) and any
dividends or distributions payable
pursuant to Section 2.2(c); provided,
however, that Fisher may, in its
discretion and as a condition precedent to
the issuance thereof, require the
owner of such lost, stolen or destroyed
Certificates to deliver an agreement of
indemnification in form reasonably
satisfactory to Fisher, or a bond in such sum
as Fisher may reasonably direct as
indemnity, against any claim that may be made
against Fisher or the Exchange Agent in
respect of the Certificates alleged to
have been lost, stolen or destroyed.
7
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION
3.1 Representations and Warranties of Apogent. Except as set
forth
in (x) the disclosure schedule dated as of
the date of this Agreement and
executed and delivered by Apogent to Fisher
concurrently with or prior to the
execution and delivery by Apogent of this
Agreement (the "Apogent Disclosure
Schedule") and (y) the Apogent SEC
Documents filed prior to the date hereof (as
defined in Section 3.1(d)(i)) , Apogent
represents and warrants to Fisher and
Merger Sub as set forth in this Article
III. Each disclosure set forth in the
Apogent Disclosure Schedule, and any other
information included in the Apogent
Disclosure Schedule, is identified by
reference to, or has been grouped under a
heading referring to, a specific individual
subsection of this Agreement and
shall be deemed to be disclosed solely for
purposes of, and shall qualify and be
treated as an exception to, such
subsection, except to the extent that
disclosure in one subsection of the Apogent
Disclosure Schedule is specifically
referred to in another subsection of the
Apogent Disclosure Schedule by
appropriate cross-reference and except to
the extent that the relevance of a
disclosure in one subsection of the Apogent
Disclosure Schedule to another
subsection of the Apogent Disclosure
Schedule is reasonably apparent. The
parties hereby agree that no reference to
or disclosure of any item or other
matter in the Apogent Disclosure Schedule
shall be construed as an admission or
indication that (1) such item or other
matter is material, (2) such item or
other matter is required to be referred to
or disclosed in the Apogent
Disclosure Schedule or (3) any breach or
violation of Applicable Laws or any
Contract (as defined in Section 8.3(d))
exists or has actually occurred.
(a) Organization, Standing and Corporate Power; Charter
Documents;
Subsidiaries.
(i) Organization, Standing and Corporate Power. Apogent and
each of its Subsidiaries (as defined in
Section 8.3(o)) is a corporation or
other legal entity duly organized, validly
existing and in good standing (with
respect to jurisdictions which recognize
such concept) under the laws of the
jurisdiction in which it is incorporated or
otherwise organized and has the
requisite corporate (or similar) power and
authority and all necessary
government approvals to own, lease and
operate its properties and to carry on
its business as currently conducted, except
for those jurisdictions in which the
failure to have such power, authority or
government approvals and to be so
organized, existing or in good standing
would not, individually or in the
aggregate, reasonably be expected to have a
Material Adverse Effect (as defined
in Section 8.3(k)) on Apogent and its
Subsidiaries, taken as a whole. Each of
Apogent and each of its Subsidiaries is
duly qualified or licensed to do
business and is in good standing (with
respect to jurisdictions which recognize
such concept) in each jurisdiction in which
the nature or conduct of its
business or the ownership, leasing or
operation of its properties makes such
qualification, licensing or good standing
necessary, except for those
jurisdictions where the failure to be so
qualified or licensed or to be in good
standing would not, individually or in the
aggregate, reasonably be expected to
have a Material Adverse Effect on Apogent
and its Subsidiaries, taken as a
whole.
8
<PAGE>
(ii) Charter Documents. Apogent has delivered or made
available to Fisher prior to the execution
of this Agreement complete and
correct copies of (A) the Restated Articles
of Incorporation of Apogent
(including any certificates of
designation), as amended and currently in effect
(the "Apogent Charter"), and the bylaws of
Apogent, as amended and currently in
effect (the "Apogent Bylaws," and, together
with the Apogent Charter, the
"Apogent Organizational Documents") and (B)
the articles or certificate of
incorporation and bylaws or like
organizational documents of each of the Apogent
Significant Subsidiaries (as defined in
Section 3.1(a)(iii)), as amended and
currently in effect (collectively, the
"Apogent Subsidiary Organizational
Documents"), and each such instrument is in
full force and effect. Apogent is
not in material violation of the Apogent
Organizational Documents and no Apogent
Significant Subsidiary (as defined in
Section 3.1(a)(iii)) is in material
violation of its Apogent Subsidiary
Organizational Documents.
(iii) Subsidiaries. Section 3.1(a)(iii) of the Apogent
Disclosure Schedule lists all the
Subsidiaries of Apogent which, as of the date
of this Agreement, are significant
subsidiaries (as defined in Rule 1-02 of
Regulation S-X of the U.S. Securities and
Exchange Commission (the "SEC")) (the
"Apogent Significant Subsidiaries"). Except
as set forth in Section 3.1(a)(iii)
of the Apogent Disclosure Schedule, all the
outstanding shares of capital stock
of, or other equity interests in, each
Apogent Significant Subsidiary have been
validly issued and are fully paid and
nonassessable (subject to Section
180.0622(2)(b) of the WBCL, as judicially
interpreted, to the extent applicable)
and are owned directly or indirectly by
Apogent, free and clear of all
mortgages, pledges, claims, restrictions,
infringements, liens, charges,
encumbrances and security interests and
claims of any kind or nature whatsoever
(collectively, "Liens") and free of any
other restriction (including preemptive
rights and any restriction on the right to
vote, sell or otherwise dispose of
such capital stock or other ownership
interests).
(b) Capital Structure.
(i) The authorized capital stock of Apogent consists of
250,000,000 shares of Apogent Common Stock
and 20,000,000 shares of preferred
stock, par value $0.01 per share ("Apogent
Preferred Stock"). At the close of
business on March 12, 2004, (A) 88,845,288
shares of Apogent Common Stock were
issued and outstanding; (B) no shares of
Apogent Preferred Stock were issued and
outstanding; (C) 9,839,292 shares of
Apogent Common Stock were reserved for
issuance upon conversion of Apogent's 2
-1/4% senior Convertible Debt (as
defined in Section 8.3(e)) due 2021; (D)
10,426,110 shares of Apogent Common
Stock were reserved for issuance upon
conversion of Apogent's floating senior
Convertible Debt due 2033; (E) 1,441,194
shares of Apogent Common Stock were
reserved for issuance pursuant to the
Apogent Purchase Plan, as effective as of
January 1, 2002; (F) 14,031,853 shares of
Apogent Common Stock were reserved for
issuance in respect of outstanding Apogent
Options or Apogent Restricted Stock
Units and future grants of Apogent Options
pursuant to the 1990 Stock Option
Plan, as amended, the Amended and Restated
1993 Long-Term Incentive Plan, the
1994 Amended and Restated Outside
Directors' Stock Option Plan, the 1999 Outside
Directors' Stock Option Plan and the 2001
Equity Incentive Plan (such plans,
9
<PAGE>
collectively, the "Apogent Stock Plans"),
complete and correct copies of which,
in each case as amended, have been filed as
exhibits to the Apogent SEC
Documents prior to the date of this
Agreement or delivered to Fisher; and (G)
2,500,000 shares of Apogent Preferred Stock
were designated as Series A
Preferred Stock, par value $0.01 per share,
and were reserved for issuance upon
the exercise of preferred share purchase
rights (the "Apogent Rights") issued
pursuant to the Rights Agreement, dated
December 11, 2000, between Apogent and
Fleet National Bank as rights agent (the
"Apogent Rights Agreement"). Each
outstanding share of capital stock of
Apogent is duly authorized, validly
issued, fully paid, nonassessable (subject
to Section 180.0622(2)(b) of the
WBCL, as judicially interpreted, to the
extent applicable) and free of
preemptive rights.
(ii) As of the close of business on March 12, 2004, 13,006,160
shares of Apogent Common Stock were subject
to issuance pursuant to outstanding
Apogent Options and Apogent Restricted
Stock Units under the Apogent Stock
Plans. All shares of Apogent Common Stock
subject to issuance under the Apogent
Stock Plans and the Apogent Purchase Plan,
upon issuance on the terms and
conditions specified in the instruments
pursuant to which they are issuable,
will be duly authorized, validly issued,
fully paid and nonassessable (subject
to Section 180.0622(2)(b) of the WBCL, as
judicially interpreted, to the extent
applicable) and free of preemptive rights.
Except as set forth in Section
3.1(b)(ii) of the Apogent Disclosure
Schedule, there are no commitments or
agreements of any character to which
Apogent is a party or otherwise bound
obligating Apogent to accelerate the
vesting of any Apogent Option as a result
of the Merger (whether alone or upon the
occurrence of any additional or
subsequent events), and there are no
outstanding or authorized stock
appreciation, phantom stock, profit
participation or other similar rights with
respect to Apogent.
(iii) No bonds, debentures, notes or other evidences of
indebtedness having the right to vote on
any matters on which shareholders of
Apogent may vote ("Voting Debt") are issued
or outstanding as of the date
hereof.
(iv) Except as set forth in Section 3.1(b)(iv) of the Apogent
Disclosure Schedule, as of March 12, 2004,
there are no securities, options,
warrants, calls, rights, commitments,
agreements, arrangements or undertakings
of any kind to which Apogent or any of its
Subsidiaries is a party or by which
any of them is bound obligating Apogent or
any of its Subsidiaries to issue,
deliver or sell, or cause to be issued,
delivered or sold, additional shares of
capital stock, Voting Debt or other voting
securities of Apogent or any of its
Subsidiaries, or obligating Apogent or any
of its Subsidiaries to issue, grant,
extend or enter into any such security,
option, warrant, call, right,
commitment, agreement, arrangement or
undertaking. All outstanding shares of
Apogent Common Stock, all outstanding
Apogent Options and all outstanding shares
of capital stock of each Subsidiary of
Apogent have been issued and granted in
compliance in all material respects with
(A) all applicable securities laws and
all other Applicable Laws and (B) all
requirements set forth in applicable
material Contracts.
(v) Since October 1, 2003, and through the date hereof, except
as set forth in Section 3.1(b)(v) or
Section 3.1(b)(ii) of the Apogent
Disclosure Schedule,
10
<PAGE>
other than (A) issuances of Apogent Common
Stock pursuant to the exercise of
Apogent Options granted under Apogent Stock
Plans, (B) issuances of Apogent
Common Stock pursuant to the Apogent
Purchase Plan, (C) repurchases of Apogent
Common Stock from employees of Apogent
following their termination pursuant to
the terms of their pre-existing stock
option or purchase agreements, (D)
issuances of Apogent Common Stock
(consisting of newly-issued shares or shares
in treasury) as contributions of Apogent
Common Stock to defined contribution
plans sponsored by Apogent and (E) grants
of Apogent Options under Apogent Stock
Plans in the ordinary course of business
consistent with past practice, there
has been no change in (1) the outstanding
capital stock of Apogent, (2) the
number of Apogent Options outstanding or
(3) the number of other options,
warrants or other rights to purchase
Apogent capital stock.
(vi) Except as set forth in Section 3.1(b)(ii) or Section
3.1(b)(vi) of the Apogent Disclosure
Schedule, neither Apogent nor any of its
Subsidiaries is a party to any currently
effective agreement (A) restricting the
purchase or transfer of, (B) relating to
the voting of, (C) requiring the
repurchase, redemption or disposition of,
or containing any right of first
refusal with respect to, (D) requiring
registration of or (E) granting any
preemptive or antidilutive rights with
respect to any capital stock of Apogent
or any of its Subsidiaries or any
securities of the type referred to in Section
3.1(b)(vi) hereof.
(vii) Except as set forth in Section 3.1(b)(vii) of the
Apogent Disclosure Schedule, other than its
Subsidiaries, as of the date hereof,
Apogent does not directly or indirectly
beneficially own any securities or other
beneficial ownership interests in any other
entity except for non-controlling
investments made in the ordinary course of
business consistent with past
practice in entities which are not
individually or in the aggregate material to
Apogent and its Subsidiaries, taken as a
whole. There are no outstanding
contractual obligations of Apogent or any
of its Subsidiaries to make any loan
to, or any equity or other investment (in
the form of a capital contribution or
otherwise) in, any Subsidiary of Apogent or
any other Person, other than
guarantees by Apogent of any indebtedness
or other obligations of any
wholly-owned Subsidiary of Apogent and
other than loans made in the ordinary
course consistent with past practice to
employees of Apogent and its
Subsidiaries.
(viii) Neither Apogent nor any of its Subsidiaries owns any
shares of capital stock of Fisher or any of
its Subsidiaries.
(c) Authority; Board Approval; Voting Requirements; No
Conflict;
Required Filings and Consents.
(i) Authority. Apogent has all requisite corporate power and
authority to enter into this Agreement, to
perform its obligations hereunder and
to consummate the transactions contemplated
hereby. The execution and delivery
of this Agreement by Apogent, and the
consummation by Apogent of the
transactions contemplated hereby, have been
duly and validly authorized by all
necessary corporate action on the part of
Apogent,
11
<PAGE>
and no other corporate proceedings on the
part of Apogent and no shareholder
votes are necessary to authorize this
Agreement or to consummate the
transactions contemplated hereby, other
than, with respect to approval of this
Agreement and the Merger, the Apogent
Shareholder Approval (as defined in
Section 3.1(c)(iii)). This Agreement has
been duly executed and delivered by
Apogent. Assuming the due authorization,
execution and delivery of this
Agreement by Fisher and Merger Sub, this
Agreement constitutes the legal, valid
and binding obligation of Apogent
enforceable against Apogent in accordance with
its terms, subject to applicable
bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or
affecting the rights and remedies of
creditors generally and to general
principles of equity (regardless of whether
considered in a proceeding in equity or at
law).
(ii) Board Approval. The Board of Directors of Apogent has (A)
determined that this Agreement and the
Merger are advisable and fair to and in
the best interests of Apogent and its
shareholders, (B) duly approved and
adopted this Agreement, the Merger and the
other transactions contemplated
hereby, which adoption has not been
rescinded or modified, (C) resolved (subject
to Section 4.2(d)) to recommend this
Agreement and the Merger to its
shareholders for approval and (D) subject
to Section 5.1(b), directed that this
Agreement and the Merger be submitted to
its shareholders for consideration in
accordance with this Agreement.
(iii) Voting Requirements. Based on the representation and
warranty of Fisher in Section 3.2(b)(ix) of
this Agreement, the affirmative vote
of a majority of the votes that holders of
the outstanding shares of Apogent
Common Stock are entitled to cast (the
"Apogent Shareholder Approval") is the
only vote of the holders of any class or
series of Apogent capital stock
necessary to approve and adopt this
Agreement, approve the Merger and consummate
the Merger and the other transactions
contemplated hereby.
(iv) No Conflict. Except as set forth in Section 3.1(c)(iv) of
the Apogent Disclosure Schedule, the
execution and delivery of this Agreement by
Apogent do not, and the consummation by
Apogent of the transactions contemplated
hereby and compliance by Apogent with the
provisions of this Agreement will not,
conflict with, result in any violation or
breach of or change of control or
default (with or without notice or lapse of
time, or both) under, require any
consent, waiver or approval under, give
rise to any right of termination or
cancellation or acceleration of any right
or obligation or loss of a benefit
under, or result in the creation of any
Lien upon any of the properties or
assets of Apogent or any of its
Subsidiaries or any restriction on the conduct
of Apogent's business or operations under,
(A) the Apogent Organizational
Documents or the Apogent Subsidiary
Organizational Documents, (B) any Contract
or Apogent Permit (as defined in Section
3.1(g)(i)) or (C) subject to the
governmental filings and other matters
referred to in Section 3.1(c)(v), any
judgment, order, decree, statute, law,
ordinance, rule or regulation applicable
to Apogent or any of its Subsidiaries or
their respective properties or assets,
other than, in the case of clauses (B) and
(C), any such conflicts, violations,
defaults, rights, losses, restrictions or
Liens, or failure to obtain consents,
waivers or approvals, which, individually
or in the aggregate, would not
reasonably be expected to have a Material
Adverse Effect on Apogent and its
Subsidiaries, taken as a whole.
12
<PAGE>
(v) Required Filings or Consents. No consent, approval, order
or authorization or permit of, action by or
in respect of, registration,
declaration or filing with, or notification
to, any federal, state, local or
foreign government, any court,
administrative, regulatory or other governmental
agency, commission or authority or any
non-governmental self-regulatory agency,
commission or authority (a "Governmental
Entity") or any other Person is
required to be made, obtained, performed or
given to or with respect to Apogent
or any of its Subsidiaries in connection
with the execution and delivery of this
Agreement by Apogent or the consummation by
Apogent of the transactions
contemplated hereby, except for:
(A)
the filing of a
pre-merger notification and report form by Apogent
under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and any applicable filings or
notifications
under the antitrust, competition or similar laws of any foreign
jurisdiction;
(B) the filing with the SEC
of:
(1) a proxy
statement relating to the Apogent Shareholders'
Meeting (as defined in Section 5.1(b)) (such proxy statement,
together with the proxy statement relating to the Fisher
Stockholders' Meeting (as defined in Section 5.1(b), in each
case as amended or supplemented from time to time, the "Joint
Proxy Statement");
(2) such reports
and filings under Section 13(a), 13(d), 14(a),
15(d) or 16(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the rules and regulations
thereunder, as may be required in connection with this
Agreement and the transactions contemplated hereby;
(C)
the filing of
the Articles of Merger with the DFI and appropriate
documents with the NYSE and the relevant authorities of other
states
in which Apogent is qualified to do business and such filings as
may
be necessary in accordance with state securities or other "blue
sky"
laws;
(D)
the Apogent
Shareholder Approval;
(E)
the consents,
approvals, orders or authorizations set forth in
Section 3.1(c)(v) of the Apogent Disclosure Schedule; and
(F)
other such
consents, approvals, orders or authorizations, the
failure of which to be made or obtained, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect on Apogent and its Subsidiaries, taken as a
whole.
13
<PAGE>
(d) SEC
Documents; Financial Statements.
(i) Apogent has filed with the SEC all registration
statements, prospectuses, reports,
schedules, forms, statements, certifications
and other documents (including exhibits and
all other information incorporated
by reference therein) presently required to
be so filed by Apogent since October
1, 2002 (excluding the Joint Proxy
Statement, the "Apogent SEC Documents"). As
of their respective dates, the Apogent SEC
Documents complied in all material
respects with the requirements of the
Securities Act of 1933, as amended (the
"Securities Act"), or the Exchange Act, as
the case may be, to the extent in
effect, the Sarbanes-Oxley Act of 2002
("SOX") and the rules and regulations of
the SEC promulgated thereunder applicable
to such Apogent SEC Documents, and
none of the Apogent SEC Documents, when
filed, contained any untrue statement of
a material fact or omitted to state a
material fact required to be stated
therein or necessary in order to make the
statements therein, in light of the
circumstances under which they were made,
not misleading, except to the extent
corrected by a subsequently filed Apogent
SEC Document filed with the SEC prior
to the date hereof. No Subsidiary of
Apogent is subject to the periodic
reporting requirements of the Exchange
Act.
(ii) Each of the principal executive officer of Apogent and
the principal financial officer of Apogent
(or each former principal executive
officer of Apogent and each former
principal financial officer of Apogent, as
applicable) has made all certifications
required by Rule 13a-14 or 15d-14 under
the Exchange Act or Sections 302 and 906 of
SOX and the rules and regulations of
the SEC promulgated thereunder with respect
to the Apogent SEC Documents. For
purposes of the preceding sentence,
"principal executive officer" and "principal
financial officer" shall have the meanings
given to such terms in SOX. Neither
Apogent nor any of its Subsidiaries has
outstanding, or has arranged any
outstanding, "extensions of credit" to
directors or executive officers within
the meaning of Section 402 of SOX.
(iii) The financial statements of Apogent included in the
Apogent SEC Documents, including each
Apogent SEC Document filed after the date
hereof until the Effective Time, comply, as
of their respective dates of filing
with the SEC, in all material respects with
applicable accounting requirements
and the published rules and regulations of
the SEC with respect thereto, have
been prepared in accordance with United
States generally accepted accounting
principles ("GAAP") (except, in the case of
unaudited statements, as permitted
by Form 10-Q or 8-K or other applicable
rules of the SEC) applied on a
consistent basis during the periods
involved (except as may be indicated in the
notes thereto) and fairly present the
consolidated financial position of Apogent
and its consolidated Subsidiaries as of the
dates thereof and the consolidated
results of their operations and cash flows
for the periods then ended (subject,
in the case of unaudited statements, to
normal year-end audit adjustments which
are not material). The financial books and
records of Apogent and its
Subsidiaries, taken as a whole, are true
and correct in all material respects.
14
<PAGE>
(iv) Except as
reflected or reserved against in the balance
sheet of
Apogent, dated December 31, 2003, included in the Form 10-Q
filed
by Apogent
with the SEC on February 13, 2004 (including the notes thereto,
the
"Apogent Balance Sheet") and except as set forth in Section
3.1(d)(iv)
of the
Apogent Disclosure Schedule, neither Apogent nor any of its
Subsidiaries has any liabilities or obligations of any nature
(whether
absolute,
accrued, known or unknown, contingent or otherwise) nor, to the
Knowledge
(as defined in Section 8.3(j)) of Apogent, does any basis exist
therefor,
other than (A) liabilities or obligations incurred since
December
31, 2003 in the ordinary course of business consistent with
past
practice
which would not reasonably be expected to have a Material
Adverse
Effect on
Apogent and its Subsidiaries, taken as a whole, (B) liabilities
or
obligations under the Apogent Material Contracts set forth in
Section
3.1(q)(ii)
of the Apogent Disclosure Schedule, (C) liabilities or
obligations incurred pursuant to Contracts entered into after the
date
hereof not
in violation of this Agreement and (D) liabilities or
obligations incurred pursuant to this Agreement or the
transactions
contemplated hereby.
(v) Except as
set forth in Section 3.1(d)(v) of the Apogent
Disclosure
Schedule, neither Apogent nor any of its Subsidiaries is a
party to,
or has any commitment to become a party to, any joint venture,
off-balance sheet partnership or any similar contract or
arrangement
(including
without limitation any contract or arrangement relating to any
transaction or relationship between or among Apogent and any of
its
Subsidiaries, on the one hand, and any unconsolidated Affiliate
(as
defined in
Section 8.3(a)), including without limitation any structured
finance,
special purpose or limited purpose entity or Person, on the
other
hand, or
any "off-balance sheet arrangement" (as defined in Item 303(a)
of
Regulation
S)), where the result, purpose or intended effect of such
contract
or arrangement is to avoid disclosure of any material
transaction
involving,
or material liabilities of, Apogent or any of its Subsidiaries
in
Apogent's or such Subsidiary's published financial statements or
other
Apogent
SEC Documents.
(vi) No "material
contract" (as such term is defined in Item
601(b)(10)
of Regulation S-K of the SEC) filed as an exhibit to the
Apogent
Form 10-K has been amended or modified, except for amendments
or
modifications which have been filed as an exhibit to a subsequently
dated
Apogent
SEC Document or are not required to be filed with the SEC.
(e) Information
Supplied. None of the information supplied or to
be supplied by or on behalf of Apogent for
inclusion or incorporation by
reference in (i) the registration statement
on Form S-4 to be filed with the SEC
by Fisher in connection with the issuance
of Fisher Common Stock in the Merger
(including any amendments or supplements,
the "Form S-4") will, at the time the
Form S-4 becomes effective under the
Securities Act, contain any untrue
statement of a material fact or omit to
state any material fact required to be
stated therein or necessary to make the
statements therein not misleading or
(ii) the Joint Proxy Statement will, at the
date it is first mailed to Apogent's
shareholders or at the time of the
15
<PAGE>
Apogent Shareholders' Meeting, contain any
untrue statement of a material fact
or omit to state any material fact required
to be stated therein or necessary in
order to make the statements therein, in
light of the circumstances under which
they are made, not misleading. The Joint
Proxy Statement and the Form S-4 will
comply as to form in all material respects
with the requirements of the
Securities Act and the Exchange Act and the
rules and regulations thereunder.
Notwithstanding the foregoing provisions of
this Section 3.1(e), no
representation or warranty is made by
Apogent with respect to information or
statements made or incorporated by
reference in the Form S-4 or the Joint Proxy
Statement which were not supplied by or on
behalf of Apogent.
(f) Absence of
Certain Changes or Events.
(i) Except as
set forth in Section 3.1(f) of the Apogent
Disclosure
Schedule, since October 1, 2003 through the date hereof, except
as and to the
extent disclosed in the Apogent SEC Documents filed prior to
the date
of this Agreement and except for liabilities incurred pursuant
to
this
Agreement or the transactions contemplated hereby:
(A)
Apogent and its
Subsidiaries have conducted their business only in
the ordinary course consistent with past practice;
(B)
there has not
been any split, combination or reclassification of any
of Apogent's capital stock or any declaration, setting aside or
payment of any dividend on, or other distribution (whether in
cash,
stock or property) in respect of, in lieu of or in substitution
for,
shares of Apogent's capital stock;
(C)
except as
required by a change in GAAP, there has not been any
change in accounting methods, principles or practices by
Apogent;
and
(D)
there has not
been any action taken by Apogent or any of its
Subsidiaries that, if taken during the period from the date of
this
Agreement through the Effective Time, would constitute a breach
of
Section 4.1(a), other than actions in connection with entering
into
this Agreement.
(ii) Since October 1,
2003 through the date hereof, there
have not
been any changes, circumstances or events that, individually or
in the
aggregate, have had, or would reasonably be expected to have, a
Material
Adverse Effect on Apogent and its Subsidiaries, taken as a
whole.
(g) Compliance
with Applicable Laws; Permits; Litigation.
(i) Apogent, its
Subsidiaries and employees hold all
authorizations, permits, licenses, certificates, easements,
concessions,
franchises, variances, exemptions, orders, consents,
registrations,
approvals
and clearances of
16
<PAGE>
all
Governmental Entities (including all authorizations under the
Federal
Food, Drug
and Cosmetic Act of 1938, as amended (the "FDCA"), and the
regulations of the U.S. Food and Drug Administration (the
"FDA")
promulgated thereunder) and third Persons which are required for
Apogent
and its
Subsidiaries to own, lease and operate its properties and other
assets and
to carry on their respective businesses in the manner described
in the
Apogent SEC Documents filed prior to the date hereof and as
they
are being
conducted as of the date hereof (the "Apogent Permits"), and
all
Apogent
Permits are valid and in full force and effect, except where
the
failure to
have, or the suspension or cancellation of, or the failure to
be valid
or in full force and effect of, any such Apogent Permits,
individually or in the aggregate, would not reasonably be expected
to have
a Material
Adverse Effect on Apogent and its Subsidiaries, taken as a
whole.
(ii) Except as set
forth in Section 3.2(g)(ii) of the Apogent
Disclosure
Schedule, Apogent and its Subsidiaries are, and have been at
all times
since October 1, 2002, in compliance with the terms of the
Apogent
Permits and all laws, statutes, orders, rules, regulations,
policies
or guidelines promulgated, or judgments, decisions or orders
entered by
any Governmental Entity, including the Public Health Service
Act,
Biological Products, 21 C.F.R.Sections 600-610 (the "Public
Health
Service Act") (all such laws, statutes, orders, rules,
regulations,
policies, directives,
guidelines, judgments, decisions and orders,
collectively, "Applicable Laws") relating to Apogent and its
Subsidiaries
or their
respective businesses, assets or properties, except where the
failure to
be in compliance with the terms of the Apogent Permits or such
Applicable
Laws, individually or in the aggregate, would not reasonably be
expected
to have a Material Adverse Effect on Apogent and its
Subsidiaries, taken as a whole. Except as set forth in Section
3.2(g)(ii)
of the
Apogent Disclosure Schedule, since October 1, 2002, neither
Apogent
nor any of
its Subsidiaries has received any written notification from any
Governmental Entity (A) asserting that Apogent or any of its
Subsidiaries
is not in
compliance with, or at any time since such date has failed to
comply
with, Applicable Laws (except for any such lack of compliance
which,
individually or in the aggregate, would not reasonably be
expected
to have a
Material Adverse Effect on Apogent and its Subsidiaries, taken
as a
whole) or (B) or threatening to revoke any Permit (except for
any
such
revocation which, individually or in the aggregate, would not
reasonably
be expected to have a Material Adverse Effect on Apogent and
its
Subsidiaries, taken as a whole) nor, to the Knowledge of Apogent,
does
any basis
exist therefore. As of the date hereof, no material
investigation or review by any Governmental Entity is pending or,
to the
Knowledge
of Apogent, has been threatened in writing against Apogent or
any of its
Subsidiaries.
(iii) Except with respect to Section 404 of SOX, Apogent is,
and has
been, in compliance in all material respects with the
provisions
of SOX
applicable to it on or prior to the date hereof and has
implemented
such
programs and has taken all reasonable steps necessary to ensure
Apogent's
future compliance (not later than the relevant statutory and
regulatory
deadlines therefor)
17
<PAGE>
with all
provisions of SOX which shall become applicable to Apogent
after
the date
hereof.
(iv) As of the date
hereof, except as and to the extent
disclosed
in the Apogent SEC Documents filed prior to the date of this
Agreement,
including the notes to the financial statements included
therein,
no action, audit, demand, claim, suit, proceeding, requirement
or
investigation by any Governmental Entity, and no suit, action,
mediation,
arbitration or proceeding by any Person, against or affecting
Apogent or
any of its
Subsidiaries or any of their respective properties, including
Intellectual Property (as defined in Section 8.3(i)), is pending
or, to
the
Knowledge of Apogent, threatened which, individually or in the
aggregate,
would reasonably be expected to have a Material Adverse Effect
on Apogent
and its Subsidiaries, taken as a whole.
(v) Neither
Apogent nor any of its Subsidiaries is, or at
any time
since October 1, 2002 has been, subject to any outstanding
order,
injunction
or decree which, individually or in the aggregate, has had or
would
reasonably be expected to have a Material Adverse Effect on
Apogent
and its
Subsidiaries, taken as a whole.
(h) Labor and
Other Employment Matters.
(i) As of the
date hereof, except as would not, individually
or in the
aggregate, reasonably be expected to have a Material Adverse
Effect on
Apogent and its Subsidiaries, taken as a whole, or as set forth
in Section
3.1(h)(i) of the Apogent Disclosure Schedule, (A) no work
stoppage,
slowdown, lockout, labor strike, material arbitrations or other
material
labor disputes against Apogent or any of its Subsidiaries are
pending
or, to the Knowledge of Apogent, threatened, (B) no unfair
labor
practice
charges, grievances or complaints are pending or, to the
Knowledge
of Apogent, threatened against Apogent or any of its
Subsidiaries, (C) neither Apogent nor any of its Subsidiaries
is
delinquent
in payments to any of its employees for any wages, salaries,
commissions, bonuses or other direct compensation for any
services
performed
for it or amounts required to be reimbursed to such employees,
(D)
neither Apogent nor any of its Subsidiaries is liable for any
payment
to any
trust or other fund or to any Governmental Entity with respect
to
unemployment compensation benefits, social security or other
benefits or
obligations for employees, (E) no employee of Apogent, at the
officer
level or
above, has given written notice to Apogent or any of its
Subsidiaries that any such employee intends to terminate his or
her
employment
with Apogent or any of its Subsidiaries, (F) to the Knowledge
of
Apogent, no employee of Apogent or any of its Subsidiaries is in
any
respect in
violation of any term of any employment contract, nondisclosure
agreement,
common law nondisclosure obligations, non-competition
agreement,
or any restrictive covenant to a former employer relating to
the right
of any such employee to be employed by Apogent or any of its
Subsidiaries because of the nature of the business conducted or
presently
18
<PAGE>
proposed
to be conducted by Apogent or any of its Subsidiaries or to the
use of
trade secrets or proprietary information of others, (G) neither
Apogent
nor any of its Subsidiaries is a party to, or otherwise bound
by,
any
consent decree with, or citation by, any Governmental Entity
relating
to
employees or employment practices and (H) Apogent and its
Subsidiaries
are in
compliance with all applicable laws, agreements, contracts,
policies,
plans and programs relating to employment, employment
practices,
compensation, benefits, hours, terms and conditions of employment
and the
termination of employment, including but not limited to any
obligations
pursuant
to the Worker Adjustment and Retraining Notification Act of
1988.
(ii) Except as set
forth in Section 3.1(h)(ii) of the Apogent
Disclosure
Schedule, as of the date hereof,
(A) neither
Apogent nor any of its Subsidiaries is a
party to, or otherwise bound by, any collective bargaining
agreement
or any other agreement, work rules or practices with a labor
union,
labor organization or works council, nor are any such
agreements,
work rules or practices presently being negotiated;
(B) none of the
employees of Apogent or any of its
Subsidiaries is represented by any labor union, labor
organization
or works council in his or her capacity as an employee of Apogent
or
any of its Subsidiaries;
(C) no labor
union, labor organization or works
council or group of employees of Apogent or any of its
Subsidiaries
has made a pending demand for recognition or certification to
Apogent or any of its Subsidiaries, and there are no
representation
or certification proceedings or petitions seeking a
representation
proceeding presently pending or, to the Knowledge of Apogent,
threatened to be brought or filed with the National Labor
Relations
Board ("NLRB") or any other labor relations tribunal or
authority;
and
(D) to the
Knowledge of Apogent, no labor union, labor
organization or works council is seeking to organize any
employees
of Apogent or any of its Subsidiaries.
(i) Benefit
Plans.
(i) Section
3.1(i)(i)(A) of the Apogent Disclosure Schedule
sets forth
a true and complete list of each written bonus, pension, profit
sharing,
deferred compensation, incentive compensation, stock ownership,
stock
purchase, stock option or other equity compensation, phantom
stock,
stock-related or performance award, retirement, vacation, severance
or
termination pay, change in control, retention, disability, death
benefit,
hospitalization, medical, life
19
<PAGE>
insurance,
loan, disability, and other similar plan, arrangement,
agreement
or understanding, including, without limitation, each "employee
benefit
plan" within the meaning of Section 3(3) of the Employee
Retirement
Income Security Act of 1974, as amended ("ERISA") and any
employment
agreement, consulting agreement, termination or severance
agreement
(such plans, agreements, arrangements or understandings, except
any plan
which is a Multiemployer Plan (as defined in Section 8.3(l)),
collectively, "Benefit Plans") with or for the benefit of any
current or
former
employee, officer or director of Apogent or any of its
Subsidiaries
or ERISA
Affiliates (as defined in Section 3.1(i)(v)) or with respect to
which
Apogent or any of its Subsidiaries or ERISA Affiliates have any
obligations or liabilities (the "Apogent Benefit Plans"). With
respect to
the
Apogent Benefit Plans, no event has occurred, and there exists
no
condition
or set of circumstances, which would reasonably be expected to
have a
Material Adverse Effect on Apogent and its Subsidiaries, taken as
a
whole, under ERISA,
the Code or any other Applicable Laws. Neither
Apogent,
nor any of its Subsidiaries, nor, to the Knowledge of Apogent,
any other
Person, has any express or implied commitment, whether legally
enforceable or not, to modify, change or terminate any Apogent
Benefit
Plan,
other than with respect to a modification, change or
termination
required
by ERISA or the Code, or any other Applicable Laws. Except as
set
forth in
Section 3.1(i)(i)(B) of the Apogent Disclosure Schedule,
Apogent
has
delivered or made available to Fisher true, correct and
complete
copies of
all Apogent Benefit Plans (or, if not so delivered, has
delivered
or made available to Fisher a written summary of their material
terms)
and, with respect thereto, all amendments, trust agreements,
insurance
Contracts, other funding vehicles, determination letters issued
by the
Internal Revenue Service, the most recent annual reports (Form
5500
series)
filed with the Internal Revenue Service and the most recent
actuarial
report or other financial statement relating to such Apogent
Benefit
Plan.
(ii) Each Apogent
Benefit Plan has been, in all material
respects,
administered and operated in accordance with its terms, with
the
applicable
provisions of ERISA, the Code and other Applicable Laws and
with the
terms of all applicable collective bargaining agreements. Each
Apogent
Benefit Plan, including any material amendments thereto, that
is
capable of
approval by, or registration or qualification for special tax
status
with, the appropriate taxation, social security or supervisory
authorities in the relevant country, state, territory or the like
(each,
an
"Approval") has received such Approval (or there remains a period
of
time in
which to obtain such Approval retroactive to the date of any
material
amendment that has not previously received such Approval), and
no
event has
occurred which would reasonably be expected to result in the
revocation
of such Approval or the imposition of material sanctions by
such
authorities. Without limiting the generality of the foregoing,
each
Apogent
Benefit Plan that is intended to be qualified under Section
401(a)
of the
Code has obtained a favorable determination letter from the
Internal
Revenue Service that the Apogent Benefit Plan is so qualified
and
all
related trusts are exempt from U.S. federal income taxation
under
Section
501(a) of the Code, and,
20
<PAGE>
to the
Knowledge of Apogent, nothing has occurred, whether by action or
by
failure to
act, which would cause the loss of such qualification or
exemption.
(iii) Except as set forth in Section 3.1(i)(iii) of the
Apogent
Disclosure Schedule, to the Knowledge of Apogent, no oral or
written
representation or commitment with respect to any material
aspect
of any Apogent Benefit
Plan has been made to an employee or former
employee
of Apogent or any of its Subsidiaries by an authorized Apogent
employee
that is not materially in accordance with the written or
otherwise
pre-existing terms and provisions of such Apogent Benefit
Plans.
To the
Knowledge of Apogent, neither Apogent nor any of its
Subsidiaries
has
entered into any agreement, arrangement or understanding,
whether
written or
oral, with any trade union, works council or other employee
representative body or any material number or category of its
employees
which
would prevent, restrict or materially impede the implementation
of
any
layoff, redundancy, severance or similar program within its or
their
respective
workforces (or any part of them).
(iv) There are no
material unresolved claims or disputes
under the
terms of, or in connection with, any Apogent Benefit Plan
(other
than
routine undisputed claims for benefits), and no action, legal
or
otherwise,
has been commenced or threatened with respect to any material
claim or
otherwise in connection with an Apogent Benefit Plan.
(v) Except as
set forth in Section 3.1(i)(v) of the Apogent
Disclosure
Schedule, with respect to each Funded Retirement Plan (as
defined
below) of Apogent or any of its Subsidiaries, the aggregate
value
of the
assets of such Funded Retirement Plan is equal to or greater
than
the
aggregate value of its liabilities assessed on an ongoing and
terminated
basis and calculated in accordance with the actuarial methods
and
assumptions used in such valuation pursuant to such Funded
Retirement
Plan and
Applicable Laws and GAAP. For purposes of this Agreement,
"Funded
Retirement
Plan" means, with respect to a party, a Benefit Plan that is a
"pension
plan" within the meaning of Section 3(2) of ERISA (whether or
not
such
Benefit Plan is subject to ERISA) and under which the assets to
satisfy
the benefit obligations are legally segregated from the general
assets of
such party or any of its Subsidiaries and are not subject to
the
creditors
of such party or any of its Subsidiaries. None of Apogent or
any
other
Person or entity under common control within the meaning of
Section
414(b),
(c), (m) or (o) of the Code (an "ERISA Affiliate") with Apogent
has
incurred, or is reasonably expected to incur, any liability to
a
Funded
Retirement Plan under Title IV of ERISA (other than for
contributions not yet due) or to the Pension Benefit Guaranty
Corporation
(other
than for payment of premiums not yet due) that, when aggregated
with other
such liabilities, would reasonably be expected to result in a
material
liability of Apogent and its Subsidiaries, taken as a whole,
which
liability has not been fully paid.
21
<PAGE>
(vi) Section
3.1(i)(vi) of the Apogent Disclosure Schedule
sets forth
a true and complete list of each Multiemployer Plan to which
Apogent or
any ERISA Affiliate of Apogent contributes or is required to
contribute, or to which or with respect to which, Apogent or any
ERISA
Affiliate of
Apogent has any material liability.
(vii) Except as set forth in Section 3.1(i)(vii) of the
Apogent
Disclosure Schedule, no Apogent Benefit Plan provides health
benefits
(whether or not insured) with respect to employees or former
employees
of Apogent or any of its Subsidiaries after retirement or other
termination of service (other than coverage mandated by Applicable
Laws or
benefits,
the full cost of which is borne by the employee or former
employee).
(viii) Except as set forth in Section 3.1(i)(viii)(A) of the
Apogent
Disclosure Schedule, and except with respect to each unvested
Apogent
Option and Apogent Restricted Stock Unit, each of which by its
terms will
automatically vest and, in the case of an Apogent Option,
become
exercisable and, in the case of an Apogent Restricted Stock
Unit,
become
nonforfeitable, upon a change of control of Apogent, neither
the
negotiation and execution of this Agreement nor the consummation of
the
transactions contemplated hereby will (either alone or upon the
occurrence
of any
additional or subsequent events) constitute an event under any
Apogent
Benefit Plan that will or may result in any payment (whether of
severance
pay or otherwise), acceleration of payment, forgiveness of
indebtedness, vesting, distribution, increase in benefits or
obligation to
fund
benefits with respect to any employee or former employee of
Apogent
or any of
its Subsidiaries. Except as set forth in Section
3.1(i)(viii)(B)
of the
Apogent Disclosure Schedule, there is no contract, agreement,
plan
or
arrangement with an employee or former employee of Apogent to
which
Apogent or
any of its Subsidiaries is a party as of the date of this
Agreement
that, individually or collectively and as a result of the
transaction contemplated hereby (whether alone or upon the
occurrence of
any
additional or subsequent events) or otherwise, would reasonably
be
expected
to give rise to the payment of any amount that would not be
deductible
pursuant to Sections 280G or 162(m) of the Code.
(j) Taxes.
(i) Each of
Apogent and its Subsidiaries has (A) duly and
timely
filed (or there have been filed on its behalf) all material Tax
Returns
(as defined below) required to be filed by it (taking into
account
all
applicable extensions) with the appropriate Tax Authority (as
defined
below) and
all such Tax Returns are true, correct and complete in all
material
respects, (B) duly paid in full or made provision in accordance
with GAAP
(or there has been paid or provision has been made on its
behalf)
for the payment of all material Taxes (as defined in Section
3.1(j)(xi)) for all periods ending through the date hereof and
22
<PAGE>
(C)
complied in all material respects with all Applicable Laws relating
to
the
payment and withholding of Taxes.
(ii) There are no
material Liens for Taxes upon any property
or assets
of Apogent or any of its Subsidiaries, except for liens for
Taxes not
yet due and payable and for which adequate reserves have been
provided
in accordance with GAAP in the most recent financial statements
contained
in the Apogent SEC Documents filed prior to the date of this
Agreement.
(iii) The most recent financial statements contained in the
Apogent
SEC Documents reflect an adequate reserve in accordance with
GAAP
for all
Tax liabilities of Apogent and its Subsidiaries for all taxable
periods
and portions thereof accrued through the date of such financial
statements.
(iv) Except as set
forth in Section 3.1(j)(iv) of the Apogent
Disclosure
Schedule, there is no audit, examination, deficiency, refund
litigation, proposed adjustment or matter in controversy with
respect to
any Taxes
or Tax Return of Apogent or any of its Subsidiaries which, if
determined
adversely, would be expected to result in a material Tax
deficiency. Neither Apogent nor any of its Subsidiaries has
received
written
notice of any claim made by a Governmental Entity in a
jurisdiction where Apogent or any of its Subsidiaries, as
applicable, does
not file a
Tax Return, that Apogent or such Subsidiary is or may be
subject to
taxation by that jurisdiction.
(v) The material
income Tax Returns of Apogent and each of
its
Subsidiaries, including any predecessors thereof, have been
examined
by the
applicable Tax Authority (or the applicable statutes of
limitations
for the
assessment of income Taxes for such periods have expired) for
all
periods
through and including September 30, 1999, and no material
deficiencies were asserted as a result of such examinations which
have not
been
resolved and fully paid or accrued as a liability on the most
recent
financial
statements contained in the Apogent SEC Documents.
(vi) Except as set
forth in Section 3.1(j)(vi) of the Apogent
Disclosure
Schedule, there are no outstanding requests, agreements,
consents or
waivers to extend the statutory period of limitations
applicable
to the assessment of any Taxes or deficiencies against Apogent
or any of
its Subsidiaries, and no power of attorney granted by either
Apogent or
any of its Subsidiaries with respect to any Taxes is currently
in
force.
(vii) Except as set forth in Section 3.1(j)(vii) of the
Apogent
Disclosure Schedule, neither Apogent nor any of its
Subsidiaries
is a party
to any agreement providing for the allocation, indemnification
or sharing
of Taxes (other than any agreements solely between Apogent and
its
Subsidiaries), and neither Apogent nor any of its Subsidiaries (A)
has
been a
member of an affiliated group (or similar state, local or
foreign
filing
group) filing a
23
<PAGE>
consolidated income Tax Return (other than a group the common
parent of
which is
Apogent) or (B) has any liability for the Taxes of any Person
(other
than Apogent or any of its Subsidiaries) under Treasury
Regulation
Section 1.1502-6 (or any similar provision of state, local or
foreign
law), as a transferee or successor, by contract or otherwise.
(viii) Apogent and each of its Subsidiaries has delivered or
made
available to Fisher complete copies of all material income Tax
Returns of
Apogent and each of its Subsidiaries, including any
predecessors thereof, for taxable years ending between October 1,
1999 and
September
30, 2003, excepting such Tax Returns as have not been filed for
the
taxable year ending September 30, 2003 pursuant to appropriate
extensions
with respect thereto.
(ix) Except as set
forth in Section 3.1(j)(ix) of the Apogent
Disclosure
Schedule, neither Apogent nor any of its Subsidiaries has (A)
agreed to
make nor is it required to make any material adjustment under
Section
481(a) of the Code by reason of a change in accounting method
or
otherwise;
(B) constituted either a "distributing corporation" or a
"controlled corporation" (within the meaning of Section
355(a)(1)(A) of
the Code)
in a distribution of stock qualifying for tax-free treatment
under Section 355 of the Code (I)
in the two years prior to the date of
this
Agreement or (II) in a distribution which could otherwise
constitute
part of a
"plan" or "series of related transactions" (within the meaning
of Section
355(e) of the Code) in connection with the Merger; or (C) taken
(or caused
to be taken) any action or knows of any fact, agreement, plan
or other
circumstance that would reasonably be expected to prevent the
Merger
from qualifying as a "reorganization" within the meaning of
Section
368(a) of
the Code.
(x) Apogent is
not, and has not been, a United States real
property
holding corporation (as defined in Section 897(c)(2) of the
Code)
during the
applicable period specified in Section 897(c)(1)(A)(ii) of the
Code.
(xi) "Taxes" means any
and all federal, state, local, foreign
or other
taxes of any kind (together with any and all interest,
penalties,
additions
to tax and additional amounts imposed with respect thereto)
imposed by
any Governmental Entity, including, without limitation, taxes
or other
charges on or with respect to income, franchises, windfall or
other
profits, gross receipts, property, sales, use, capital stock,
payroll,
employment, unemployment, social security, workers'
compensation,
or net
worth, and taxes or other charges in the nature of excise,
withholding, ad valorem or value added; "Tax Authority" means the
Internal
Revenue Service and any
other domestic or foreign Governmental Entity
responsible for the administration or collection of any Taxes; and
"Tax
Return"
means any return, report or similar statement (including the
attached
schedules) required to be filed with respect to Taxes,
including,
without
limitation, any information return, claim for refund, amended
return, or
declaration of estimated Taxes.
24
<PAGE>
(k) Interested
Party Transactions. Since the date of the Apogent
Balance Sheet, no event has occurred that
would be required to be reported as a
Certain Relationship or Related Transaction
pursuant to Statement of Financial
Accounting Standards No. 57 or Item 404 of
Regulation S-K of the SEC.
(l)
Environmental Matters. Except as would not, individually or in
the aggregate, reasonably be expected to
have a Material Adverse Effect on
Apogent and its Subsidiaries, taken as a
whole, (i) the operations of Apogent
and its Subsidiaries are, and at all times
since October 1, 2002 have been, in
compliance with all applicable
Environmental Laws (as defined in Section
8.3(f)), including possession and
compliance with the terms of all licenses
required by Environmental Laws, (ii) there
are no pending or, to the Knowledge
of Apogent, threatened suits, actions,
investigations or proceedings under or
pursuant to Environmental Laws against
Apogent or any of its Subsidiaries or
involving any real property currently or,
to the Knowledge of Apogent, formerly
owned, operated or leased or other sites at
which Hazardous Materials (as
defined in Section 8.3(h) were disposed of,
or allegedly disposed of, by Apogent
or any of its Subsidiaries, (iii) Apogent
and its Subsidiaries are not subject
to and have received no written allegations
of any Environmental Liabilities (as
defined in Section 8.3(g)), and no facts,
circumstances or conditions relating
to, arising from, associated with or
attributable to any real property currently
or, to the Knowledge of Apogent, formerly
owned, operated or leased by Apogent
or any of its Subsidiaries or operations
thereon has resulted in or would
reasonably be expected to result in
Environmental Liabilities, and (iv) all real
property owned or operated by Apogent or
any of its Subsidiaries is free of
contamination from Hazardous Materials that
would have an adverse effect on
human health or the environment.
(m) Intellectual
Property. Except as would not, individually or in
the aggregate, reasonably be expected to
have a Material Adverse Effect on
Apogent and its Subsidiaries, taken as a
whole, (i) Apogent or a Subsidiary of
Apogent (A) owns and is listed in the
records of the appropriate United States,
state or foreign registry as the current
owner of record for each application
and registration of Intellectual Property
or (B) has a legally enforceable right
to use (in each case, free and clear of any
Liens) all Intellectual Property
used in or necessary for the conduct of its
business as currently conducted,
including without limitation all patents
and patent applications and all
trademark registrations and trademark
applications; (ii) except as set forth in
Section 3.1(m)(ii) of the Apogent
Disclosure Schedule, to the Knowledge of
Apogent, the conduct of the business of
Apogent and its Subsidiaries as
currently conducted does not infringe on or
misappropriate, either directly or
indirectly (such as through contributory
infringement or inducement to
infringe), the Intellectual Property rights
of any Person, and the use by
Apogent or any of its Subsidiaries of any
Intellectual Property is, to the
Knowledge of Apogent, in accordance with
any applicable grant, license,
agreement, instrument or other arrangement
pursuant to which Apogent or any
Affiliate acquired the right to use such
Intellectual Property; (iii) to the
Knowledge of Apogent, no Person is
misappropriating, infringing, diluting or
otherwise violating any right of Apogent or
any of its Subsidiaries with respect
to any Intellectual Property owned or used
by Apogent or any of its
Subsidiaries, and no such claims, suits,
arbitrations or other adversarial
proceedings have been brought or threatened
against any Person by Apogent or any
of its Subsidiaries; (iv) to the Knowledge
of Apogent, except as set forth in
Section 3.1(m)(iv) of the Apogent
Disclosure Schedule, neither Apogent nor any
of its Subsidiaries has received written
notice by any Person of any pending or
25
<PAGE>
threatened claim, suit, action, mediation,
arbitration, order or other
adversarial proceeding (A) alleging
infringement (or other violation) by Apogent
or any of its Subsidiaries of Intellectual
Property or other rights of any
Person or (B) challenging Apogent's or any
of its Subsidiaries' ownership or use
of, or the validity, enforcement,
registrability or maintenance of, any
Intellectual Property owned or used by
Apogent or any of its Subsidiaries, and,
to the Knowledge of Apogent, no
Intellectual Property owned or used by Apogent
or any of its Subsidiaries is being used or
enforced in a manner that would
reasonably be expected to result in the
abandonment, cancellation or
unenforceability of such Intellectual
Property; (v) to the Knowledge of Apogent,
the Intellectual Property owned or used by
Apogent or any of its Subsidiaries
(A) has been duly maintained, (B) is
subsisting, in full force and effect, (C)
is valid and enforceable, (D) has not
expired, been cancelled or abandoned and
(E) all maintenance, registration and
renewal fees necessary to preserve the
rights of Apogent in connection with such
Intellectual Property have been paid
in a timely manner, and there are no
actions that must be taken by Apogent or
any of its Subsidiaries within 90 days from
the date hereof, including the
payment of any registration, maintenance or
renewal fees or the filing with the
United States Patent and Trademark Office
or such other appropriate U.S. or
foreign office or similar administrative
agency of documents, applications or
certificates for the purposes of obtaining,
maintaining, perfecting, preserving
or renewing any rights in the registered or
applied-for Intellectual Property;
(vi) to the Knowledge of Apogent, except as
set forth in Section 3.1(m)(vi) of
the Apogent Disclosure Schedule, neither
Apogent nor any of its Subsidiaries has
entered into any consents, judgments,
orders, indemnifications, forbearances to
sue, settlement agreements, licenses or
other arrangements which (A) restrict
Apogent's or any of its Subsidiaries' right
to use any Intellectual Property,
(B) restrict Apogent's or any of its
Subsidiaries' businesses in order to
accommodate a third Person's Intellectual
Property rights, (C) permit third
parties to use any Intellectual Property
owned or controlled by Apogent or any
of its Subsidiaries or (D) reasonably would
be expected to provide a third
Person a defense to patent infringement in
connection with any Intellectual
Property owned or used by Apogent; (vii) to
the Knowledge of Apogent, Apogent
and each of its Subsidiaries has
implemented commercially reasonable measures to
maintain the confidentiality of the
Intellectual Property and all other property
used in the business of Apogent or any of
its Subsidiaries as presently
conducted; and (viii) each current and
former employee of Apogent or any of its
Subsidiaries who has contributed to or
participated in research and development
activities will not, after giving effect to
the transactions contemplated
herein, own or retain any rights to use any
of the Intellectual Property owned
or used by Apogent or any of its
Subsidiaries.
(n) State
Takeover Statutes. Apogent has, or will have prior to
the Effective Time, taken all necessary
action so that, assuming compliance by
Fisher and Merger Sub with their respective
obligations hereunder and the
accuracy of the representations and
warranties made by Fisher and Merger Sub
herein, no "business combination,"
"moratorium," "fair price," "control share
acquisition" or other state antitakeover
statute or regulation, nor any
takeover-related provision in the Apogent
Organizational Documents, would (i)
prohibit or restrict Apogent's ability to
perform its obligations under this
Agreement, any related agreement or the
Articles of Merger or its ability to
consummate the transactions contemplated
hereby and thereby, (ii) have the
effect of invalidating or voiding this
Agreement or the Articles of Merger, or
any provision hereof or thereof, or (iii)
subject Fisher to any impediment or
condition in connection with the exercise
of any of its rights under this
Agreement or the Articles of Merger.
26
<PAGE>
(o) Brokers.
Except for fees payable to Lehman Brothers Inc.
("Lehman"), no broker, investment banker,
financial advisor or other Person is
entitled to any broker's, finder's,
financial advisor's or other similar fee or
commission in connection with the
transactions contemplated by this Agreement
based upon arrangements made by or on
behalf of Apogent.
(p) Opinion of
Financial Advisor. Apogent has received the opinion
of its financial advisor, Lehman, dated the
date of this Agreement, to the
effect that, as of such date, the Exchange
Ratio is fair, from a financial point
of view, to the holders of Apogent Common
Stock.
(q) Material
Contracts.
(i) For purposes
of this Agreement, "Apogent Material
Contract" shall mean:
(A) Any
employment, severance, consulting or other
Contract
with an employee or former employee, officer or director of
Apogent or
any Subsidiary of Apogent (other than any unwritten Contract
for the
employment of any such employee or former employee implied at
law)
which will
require the payment of amounts by Apogent or any Subsidiary of
Apogent,
as applicable, after the date hereof in excess of $250,000 per
annum;
(B) Any
collective bargaining Contract with any labor
union;
(C) Any Contract
for capital expenditures or the
acquisition or construction of fixed assets which requires
aggregate
future
payments in excess of $2,500,000;
(D) Any Contract
containing covenants of Apogent or
any
Subsidiary of Apogent (1) to indemnify or hold harmless another
Person
or group
of Persons, unless such indemnification or hold harmless
obligation
to such Person, or group of Persons, as the case may be, would
not
reasonably be expected to exceed a maximum of $1,000,000 (except
for
product
warranty obligations in Contracts for the sale of goods in the
ordinary
course of business) or (2) not to (or otherwise restrict or
limit
the
ability of Apogent or any of its Subsidiaries to) compete in any
line
of
business or geographic area;
(E) Any Contract
requiring aggregate future payments
or
expenditures in excess of $2,500,000
27
<PAGE>
and
relating to cleanup, abatement, remediation or similar actions
in
connection
with environmental liabilities;
(F) Any license,
royalty Contract or other Contract
with
respect to Intellectual Property which, pursuant to the terms
thereof,
requires payments by Apogent or any Subsidiary of Apogent in
excess of
$1,000,000 per annum;
(G) Any Contract
pursuant to which Apogent or any
Subsidiary
of Apogent has entered into a partnership or joint venture with
any other
Person (other than Apogent or any Subsidiary of Apogent);
(H) Any
indenture, mortgage, loan, guarantee or credit
Contract
under which Apogent or any Subsidiary of Apogent has
outstanding
indebtedness or any outstanding note, bond, indenture or other
evidence of
indebtedness for borrowed money or otherwise or any guaranteed
indebtedness for money borrowed by others, in each case, for or
guaranteeing an amount in excess of $2,500,000;
(I) Any Contract
under which Apogent or any Subsidiary
of Apogent
is (1) a lessee of real property, (2) a lessee of, or holds or
uses, any
machinery, equipment, vehicle or other tangible personal
property
owned by a third Person, (3) a lessor of real property, or (4)
a
lessor of
any tangible personal property owned by Apogent or any
Subsidiary
of Apogent, in each case which requires annual payments in
excess of
$1,000,000;
(J) Any Contract (other than
purchase or sale orders
in the
ordinary course of business that are terminable or cancelable
without
penalty on 90 days' notice or less) under which Apogent or any
Subsidiary
of Apogent is a purchaser or supplier of goods and services
which,
pursuant to the terms thereof, requires payments by Apogent or
any
Subsidiary
of Apogent in excess of $1,000,000 per annum;
(K) Any material
Contract (including guarantees)
between
Apogent or any wholly-owned Subsidiary of Apogent and another
Subsidiary
of Apogent that is not wholly-owned by Apogent;
(L) Any Contract
which requires payments by Apogent or
any
Subsidiary of Apogent in excess of
28
<PAGE>
$1,000,000
per annum containing "change of control" or similar provisions;
(M) Any Contract
entered into on or after January 1,
2001
relating to the acquisition or disposition of any business or
any
assets
(whether by merger, sale of stock or assets or otherwise), in
an
amount in
excess of $5,000,000 (all of which Contracts have been made
available
to Fisher prior to the date hereof in the data room maintained
by
Apogent's counsel in connection with the transactions
contemplated
hereby);
(N) Any Contract
(other than Contracts of the type
described
in subclauses (A) through (M) above) that involves aggregate
payments
by or to Apogent or any Subsidiary of Apogent in excess of
$1,000,000
per annum, other than purchase or sales orders or other
Contracts
entered into in the ordinary course of business consistent with
past
practice that are terminable or cancelable without penalty on
90
days'
notice or less; and
(O) Any Contract
the termination or breach of which,
or the
failure to obtain consent in respect of, would reasonably be
expected
to have a Material Adverse Effect on Apogent and its
Subsidiaries, taken as a whole.
(ii) Schedule. Section
3.1(q)(ii) of the Apogent Disclosure
Schedule sets forth a list of all Apogent
Material Contracts as of the date
hereof, except for the Contracts referred
to in clause (M) of the foregoing
subsection (i) as having been made
available in the data room maintained by
Apogent's counsel in connection with the
transactions contemplated hereby. With
respect to the Contracts described in (i)
Section 3.1(q)(i)(D), (F), (I), (J),
(L) and (N) of this Agreement, Section
3.1(q)(ii) of the Apogent Disclosure
Schedule sets forth only Contracts which
require payments, or in the case of
clause (D) involve obligations, in excess
of $2,500,000 and (ii) Section
3.1(q)(i)(N) of this Agreement, Section
3.1(q)(ii) of the Apogent Disclosure
Schedule sets forth only Contracts
involving payments to Apogent, or any
Subsidiary of Apogent, in excess of
$10,000,000.
(iii) No Breach. All Apogent Material Contracts are valid and
in full force and effect and enforceable in
accordance with their respective
terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium
or other laws relating to or affecting the
rights and remedies of creditors
generally and to general principles of
equity (regardless of whether considered
in a proceeding in equity or at law),
except to the extent that (A) they have
previously expired in accordance with their
terms or (B) the failure to be in
full force and effect, individually or in
the aggregate, would not reasonably be
expected to have a Material Adverse Effect
on Apogent and its Subsidiaries,
taken as a whole. Neither Apogent nor any
of its Subsidiaries, nor, to Apogent's
Knowledge, any counterparty to any Apogent
Material Contract, has violated any
provision of, or committed or failed to
perform any act which, with or
29
<PAGE>
without notice, lapse of time or both,
would constitute a default under the
provisions of any Apogent Material
Contract, except in each case for those
violations and defaults which, individually
or in the aggregate, would not
reasonably be expected to have a Material
Adverse Effect on Apogent and its
Subsidiaries, taken as a whole.
(r) Real
Property. Section 3.1(r)(i) of the Apogent Disclosure
Schedule lists all material real property
owned in fee by Apogent or any of its
Subsidiaries (the "Apogent Owned Real
Property") or leased by Apogent or any of
its Subsidiaries as lessee (the "Apogent
Leased Real Property"). Apogent or any
of its Subsidiaries owns good and valid
title to the Apogent Owned Real Property
and has valid and enforceable leasehold
interests under the leases with respect
to the Apogent Leased Real Property, free
and clear of all Liens other than (i)
Permitted Liens (as defined in Section
8.3(m) and (ii) easements, covenants,
rights-of-way and other encumbrances or
restrictions, whether recorded or
referred to in an applicable lease or
unrecorded, which do not materially impair
the continued use of the property subject
thereto as currently used, but in no
event, with respect to clauses (i) and
(ii), environmental or Tax Liens,
judgments, lis pendens or any Lien that
would render the title to the Apogent
Owned Real Property uninsurable by a
reputable title insurance company. All of
the improvements located on any Apogent
Owned Real Property or Apogent Leased
Real Property are in good condition and
repair (subject to normal wear and tear)
without any structural defects of any kind.
Except as set forth in Section
3.1(r)(i) of the Apogent Disclosure
Schedule, each material lease with respect
to the Apogent Leased Real Property is
valid, unmodified and in full force and
effect, and there are no material subleases
with respect to the Apogent Leased
Real Property. Neither any landlord nor
Apogent nor any of its Subsidiaries
party to any material lease with respect to
the Apogent Leased Real Property is
in monetary or other material default under
any such lease.
(s)
Apogent Rights
Agreement. Apogent has taken all action so that
the execution of this Agreement, the
consummation of the Merger and the other
transactions contemplated hereby do not and
will not result in the grant of any
rights to any Person under the Apogent
Rights Agreement or enable, require or
cause the Apogent Rights to be exercised,
distributed or triggered thereunder.
SECTION
3.2
Representations and Warranties of Fisher and Merger Sub.
Except as set forth in (x) the disclosure
schedule dated as of the date of this
Agreement and executed and delivered by
Fisher and Merger Sub to Apogent
concurrently with or prior to the execution
and delivery by Fisher and Merger
Sub of this Agreement (the "Fisher
Disclosure Schedule") and (y) the Fisher SEC
Documents filed prior to the date hereof
(as defined in Section 4.1(d), Fisher
and Merger Sub represent and warrant to
Apogent as set forth in this Article
III. Each disclosure set forth in the
Fisher Disclosure Schedule, and any other
information included in the Fisher
Disclosure Schedule, is identified by
reference to, or has been grouped under a
heading referring to, a specific
individual subsection of this Agreement and
shall be deemed to be disclosed
solely for purposes of, and shall qualify
and be treated as an exception to,
such subsection, except to the extent that
disclosure in one subsection of the
Fisher Disclosure Schedule is specifically
referred to in another subsection of
the Fisher Disclosure Schedule by
appropriate cross-reference and except to the
extent that the relevance of a disclosure
in one subsection of the Fisher
Disclosure Schedule to another subsection
of the Fisher Disclosure Schedule is
reasonably apparent. The parties hereby
agree that no reference to
30
<PAGE>
or disclosure of any item or other matter
in the Fisher Disclosure Schedule
shall be construed as an admission or
indication that (1) such item or other
matter is material, (2) such item or other
matter is required to be referred to
or disclosed in the Fisher Disclosure
Schedule or (3) any breach or violation of
Applicable Laws or any Contract exists or
has actually occurred.
(a)
Organization, Standing and Corporate Power; Charter Documents;
Subsidiaries.
(i)
Organization, Standing and Corporate Power. Fisher and
each of
its Subsidiaries is a corporation or other legal entity duly
organized,
validly existing and in good standing (with respect to
jurisdictions which recognize such concept) under the laws of
the
jurisdiction in which it is incorporated or otherwise organized and
has
the
requisite corporate (or similar) power and authority and all
necessary
government
approvals to own, lease and operate its properties and to carry
on its
business as currently conducted, except for those jurisdictions
in
which the
failure to have such power, authority or government approvals
and to be
so organized, existing or in good standing would not,
individually or in the aggregate,
reasonably be expected to have a
Material
Adverse Effect (as defined in Section 8.3(k)) on Fisher and its
Subsidiaries, taken as a whole. Each of Fisher and each of its
Subsidiaries is duly qualified or licensed to do business and is in
good
standing
(with respect to jurisdictions which recognize such concept) in
each
jurisdiction in which the nature or conduct of its business or
the
ownership,
leasing or operation of its properties makes such
qualification, licensing or good standing necessary, except for
those
jurisdictions where the failure to be so qualified or licensed or
to be in
good
standing would not, individually or in the aggregate, reasonably
be
expected
to have a Material Adverse Effect on Fisher and its
Subsidiaries,
taken as a
whole.
(ii) Charter
Documents. Fisher and Merger Sub have delivered
or made
available to Apogent prior to the execution of this Agreement
complete
and correct copies of (A) the Amended and Restated Certificate
of
Incorporation of Fisher (including any certificates of
designation), as
amended
and currently in effect (the "Fisher Charter"), and the bylaws
of
Fisher, as
amended and currently in effect (the "Fisher Bylaws," and,
together
with the Fisher Charter, the "Fisher Organizational Documents")
and (B)
the articles of incorporation and bylaws of Merger Sub and
articles
or certificate of incorporation and bylaws or like
organizational
documents
of each of the Fisher Significant Subsidiaries (as defined in
Section
3.2(a)(iii)), as amended and currently in effect (collectively,
the
"Fisher Subsidiary Organizational Documents"), and each such
instrument
is in full force and effect. Fisher is not in material
violation
of the Fisher Organizational Documents and no Fisher
Significant
Subsidiary
(as defined below) is in material violation of its Fisher
Subsidiary
Organizational Documents.
(iii) Subsidiaries. Section 3.2(a)(iii) of the Fisher
Disclosure
Schedule lists all the Subsidiaries of Fisher which, as of the
date
of
31
<PAGE>
this
Agreement, are significant subsidiaries (as defined in Rule 1-02
of
Regulation
S-X of the SEC) (the "Fisher Significant Subsidiaries"). Except
as set
forth in Section 3.2(a)(iii) of the Fisher Disclosure Schedule,
all
the
outstanding shares of capital stock of, or other equity interests
in,
each
Fisher Significant Subsidiary have been validly issued and are
fully
paid and
nonassessable (subject, in the case of Merger Sub, to Section
180.0622(2)(b) of the WBCL, as judicially interpreted, to the
extent
applicable) and are owned directly or indirectly by Fisher, free
and clear
of all
Liens and free of any other restriction (including preemptive
rights and
any restriction on the right to vote, sell or otherwise dispose
of such capital
stock or other ownership interests).
(b) Capital
Structure.
(i) The
authorized capital stock of Fisher consists of
500,000,000 shares of Fisher Common Stock and 15,000,000 shares
of
preferred
stock, par value $0.01 per share ("Fisher Preferred Stock"). At
the close
of business on March 12, 2004, (A) 63,791,017 shares of Fisher
Common
Stock were issued and outstanding; (B) 262,645 shares of Fisher
Common
Stock were held by Fisher in its treasury; (C) no shares of
Fisher
Preferred
Stock were issued and outstanding; (D) 6,320,580 shares of
Fisher
Common Stock were reserved for issuance upon conversion of
Fisher's
2.5%
convertible senior notes due 2023; (E) 3,731,340 shares of
Fisher
Common
Stock were reserved for issuance upon conversion of Fisher's
3.25%
convertible senior notes due 2024; (F) 12,636,983 shares of Fisher
Common
Stock were
reserved for issuance pursuant to the 1998 Equity and Incentive
Plan, as
effective as of May 12, 1998 (the "Fisher 1998 Plan"), the 2001
Equity and
Incentive Plan, as effective as of May 16, 2001 (the "Fisher
2001
Plan") and the 2003 Equity and Incentive Plan, as effective as of
May
2, 2003
(the "Fisher 2003 Plan") (such plans, collectively, the "Fisher
Stock
Plans"), complete and correct copies of which, in each case as
amended,
have been filed as exhibits to the Fisher SEC Documents (as
defined in
Section 3.2(d)(i)) prior to the date of this Agreement or
delivered
to Apogent; and (G) 1,653,585 warrants were issued and
outstanding, with such warrants convertible into 1,653,585 shares
of
Fisher
Common Stock. Each outstanding share of capital stock of Fisher
is
duly
authorized, validly issued, fully paid, nonassessable and free
of
preemptive
rights.
(ii) As of the close
of business on March 12, 2004,
10,405,815
shares of Fisher Common Stock were subject to issuance pursuant
to
outstanding options to acquire shares of Fisher Common Stock
("Fisher
Options")
under the Fisher Stock Plans. All shares of Fisher Common Stock
subject to
issuance under the Fisher Stock Plans, upon issuance on the
terms and
conditions specified in the instruments pursuant to which they
are
issuable, will be duly authorized, validly issued, fully paid
and
nonassessable and free of preemptive rights. Except as set forth
in
Section
3.2(b)(ii) of the Fisher Disclosure Schedule, there are no
commitments or agreements of any character to which Fisher is a
party or
otherwise
bound obligating Fisher to accelerate the vesting of any Fisher
Option as
a result of the Merger (whether alone or upon the occurrence of
32
<PAGE>
any
additional or subsequent events), and there are no outstanding
or
authorized
stock appreciation, phantom stock, profit participation or
other
similar rights with respect to Fisher.
(iii) No Voting Debt of Fisher is issued or outstanding as of
the date
hereof.
(iv) Except as set
forth in Section 3.2(b)(iv) of the Fisher
Disclosure
Schedule, as of March 12, 2004, there are no securities,
options,
warrants, calls, rights, commitments, agreements, arrangements
or
undertakings of any kind to which Fisher or any of its Subsidiaries
is a
party or
by which any of them is bound obligating Fisher or any of its
Subsidiaries to
issue, deliver or sell, or cause to be issued, delivered
or sold,
additional shares of capital stock, Voting Debt or other voting
securities
of Fisher or any of its Subsidiaries, or obligating Fisher or
any of its
Subsidiaries to issue, grant, extend or enter into any such
security,
option, warrant, call, right, commitment, agreement,
arrangement
or
undertaking. All outstanding shares of Fisher Common Stock, all
outstanding Fisher Options and all outstanding shares of capital
stock of
each
Subsidiary of Fisher have been issued and granted in compliance
in
all
material respects with (A) all applicable securities laws and
all
other
Applicable Laws and (B) all requirements set forth in
applicable
material
Contracts.
(v) Since
October 1, 2003, and through the date hereof,
except as
set forth in Section 3.2(b)(v) or Section 3.2(b)(ii) of the
Fisher
Disclosure Schedule, other than (A) issuances of Fisher Common
Stock
pursuant to the exercise of Fisher Options granted under Fisher
Stock
Plans, (B) repurchases of Fisher Common Stock from employees of
Fisher
following their termination pursuant to the terms of their
pre-existing stock option or purchase agreements, (C) issuances of
Fisher
Common
Stock (consisting of newly-issued shares or shares in treasury)
as
contributions of Fisher Common Stock to defined contribution
plans
sponsored
by Fisher and (D) grants of Fisher Options under Fisher Stock
Plans in
the ordinary course of business consistent with past practice,
there has
been no change in (1) the outstanding capital stock of Fisher,
(2) the
number of Fisher Options outstanding or (3) the number of other
options,
warrants or other rights to purchase Fisher capital stock.
(vi) Except as set
forth in Section 3.2(b)(ii) or Section
3.2(b)(vi)
of the Fisher Disclosure Schedule, neither Fisher nor any of
its
Subsidiaries is a party to any currently effective agreement
(A)
restricting the purchase or transfer of, (B) relating to the voting
of,
(C)
requiring the repurchase, redemption or disposition of, or
containing
any right
of first refusal with respect to, (D) requiring registration of
or (E)
granting any preemptive or antidilutive rights with respect to
any
capital
stock of Fisher or any of its Subsidiaries or any securities of
the type
referred to in Section 3.2(b)(iv) hereof.
(vii) Except as set forth in Section 3.2(b)(vii) of the Fisher
Disclosure
Schedule, other than its Subsidiaries, as of the date hereof,
Fisher
does not directly or indirectly beneficially own any securities
or
other
beneficial ownership interests in any other entity except for
non-controlling investments made in the ordinary
33
<PAGE>
course of
business consistent with past practice in entities which are
not
individually or in the aggregate material to Fisher and its
Subsidiaries,
taken as a
whole. There are no outstanding contractual obligations of
Fisher or
any of its Subsidiaries to make any loan to, or any equity or
other
investment (in the form of a capital contribution or otherwise)
in,
any
Subsidiary of Fisher or any other Person, other than guarantees
by
Fisher of
any indebtedness or other obligations of any wholly-owned
Subsidiary
of Fisher and other than loans made in the ordinary course
consistent
with past practice to employees of Fisher and its Subsidiaries.
(viii) The authorized capital stock of Merger Sub consists of
1,000
shares of common stock, par value $.01 per share, all of which
shares are
issued and outstanding. Fisher is the legal and beneficial
owner of
all of the issued and outstanding shares of Merger Sub. Merger
Sub was
formed at the direction of Fisher prior to the date hereof,
solely
for the
purposes of effecting the Merger and the other transactions
contemplated hereby. Except as required by or provided for in
this
Agreement,
Merger Sub (x) does not hold, nor has it held, any assets, (y)
does not
have, nor has it incurred, any liabilities and (z) has not
carried on
any business activities other than in connection with the
Merger and
the transactions contemplated hereby. All of the outstanding
shares of
capital stock of Merger Sub have been duly authorized and
validly
issued, and are fully paid and nonassessable and not subject to
any
