exv10w1



 






Exhibit 10.1




SEPARATION AGREEMENT




          This SEPARATION AGREEMENT (this “Agreement”) is made and entered into by Mr. Todd M. DuChene
(the “Executive”) and Fisher Scientific International Inc., a Delaware corporation (the “Company”)
dated as of March 4, 2005.



          WHEREAS, the Executive has given notice in writing dated February 4, 2005 of his intention to
resign his employment;



          WHEREAS, the Company and the Executive believe it is in the best interest of the Company to
enter into this Agreement and provide for a more orderly transition of the Executive from the
Company.



          NOW, THEREFORE, the Company and the Executive hereby agree as follows:



     1. Resignation. The Executive’s employment with the Company shall terminate effective as of
August 31, 2005 (the “Termination Date”). The Executive resigned his positions as Senior Vice
President of Corporate Development, Chief Legal Officer and Secretary of the Company and all
positions as an officer or director of the Company and any of its subsidiaries or affiliates
effective as of March 4, 2005. From and after the date hereof, the Executive shall perform such
duties as may be reasonably and lawfully requested by the Vice Chairman of the Company to the
extent such duties are consistent (both in terms of the nature and extent of such services) with
the Executive’s former positions, duties and status with the Company.



     2. Payments and Benefits.




(a) Accrued Compensation. On or as soon as practicable following the date
hereof, the Company shall pay to the Executive all accrued but unpaid salary and
shall reimburse the Executive for any outstanding business expenses for which he is
entitled to be reimbursed.




(b) Compensation. The Company shall continue to pay Executive his current
base salary until the Termination Date.




(c) Severance Payment. On or as soon as practicable following the Payment
Date (as defined in Section 9 of Exhibit B hereto), the Company shall pay to the
Executive a lump sum in cash of one million six hundred fifty thousand dollars
($1,650,000).




(d) Benefits. Through the second anniversary of the Termination Date (such
period, the “Severance Period”), the Company shall continue to provide the Executive
and his eligible dependents with medical, dental and vision benefits as set forth in
Exhibit A to this Agreement, provided that such benefits shall be secondary to those
provided under any other plan, program, practice or policy by any subsequent
employer of the Executive. The period for the required continuation coverage under
Section 601 et seq. of the Employee Retirement Income Security Act of 1974, as
amended, and Section 4980B of the Internal



 









 






Revenue Code of 1986, as amended (known as “COBRA” benefits), shall be considered to
begin immediately following the end of the Severance Period.




(e) SERP Retirement Distribution. On or as soon as practicable following
the Termination Date, the Company shall pay to the Executive a lump sum in cash
equal to $1,100,000 which amount has been calculated based on average recognized
compensation through the Termination Date and years of service including the
Severance Period, which payment shall be in full satisfaction of the Executive’s
Retirement Benefit under the Company’s Executive Retirement and Savings Program.
Executive shall continue to be eligible for retiree medical insurance under the
Company’s retiree medical plan as in effect from time to time and in accordance with
generally applicable plan provisions.




(f) Supplemental Savings Plan Distribution. On or as soon as practicable
following the Termination Date, the Executive shall be entitled to receive a lump
sum cash distribution of his account balance (all of which is vested) under the
Company’s Supplemental Savings Plan (the “Savings Plan”) which amount is equal to
$418,510.99 as of 12/31/04. This distribution shall be in full satisfaction of the
Executive’s rights under the Savings Plan.




(g) 2004 Performance Bonus. The Executive shall be entitled to receive
payment of a 2004 performance bonus (the “Performance Bonus”) in the amount of
$487,500. Such Performance Bonus shall be paid to the Executive on or about the
same time that such Performance Bonus is paid to other executive officers of the
Company but in no event later than March 31, 2005.




(h) Administrative Support. The Company shall provide the Executive with an
office, telephone, desk and reasonable administrative support through the Consulting
Period.



     3. Stock Options. All outstanding stock options held by the Executive as of the Payment Date
shall become vested and exercisable on the Payment Date and shall remain exercisable until the
earlier of (a) ninety (90) days following the Termination Date or (b) the expiration of the
original term of such option. Shares of Company stock received by the Executive upon exercise of
such options shall not contain any restrictive legends or be subject to any restrictions on
transferability.



     4. Consulting Arrangement; Cooperation. Commencing on the Termination Date, the Executive
shall make himself reasonably available to perform consulting services to the Company as reasonably
requested by the Vice Chairman of the Company for a period of six (6) months (the “Consulting
Period”). Such services shall be consistent with the Executive’s former positions, duties and
status with the Company, it being understood that the Executive shall not be required to provide
services on a full-time basis during the Consulting Period. The Company shall pay to the Executive
as compensation for such consulting services an aggregate amount of $175,000 (the “Fee”), such Fee
to be payable in twice monthly installments of $14,583.33, less any applicable withholding;
provided that prior to December 31, 2005, the Company shall pay the Executive any remaining unpaid
balance of the Fee in a single lump sum payment. Should



2









 







the Company require additional consulting services from the Executive, the Executive shall
negotiate in good faith an extension to the Consulting Period, subject to the Executive’s
availability and other responsibilities. In addition, in order to ensure a smooth transition from
the Executive’s employment with the Company, the Executive shall make himself reasonably available
(in light of the Executive’s personal and business demands) to provide reasonable assistance to and
cooperation with the Company during the Severance Period in connection with any Company matters
concerning which the Executive had knowledge or responsibility while employed by the Company,
subject in all events to the demands of the Executive’s then current employer. If during the
Severance Period or thereafter, the Company becomes involved in any legal action relating to events
which occurred during the Executive’s employment, the Executive will cooperate in good faith in the
preparation, prosecution, or defense of the Company’s case, including, but not limited to, the
execution of affidavits or documents or providing of information requested by the Company.
Reasonable out-of-pocket expenses related to such assistance will be reimbursed by the Company.



     5. Nondisparagement. The Executive agrees not to make any statement that is intended to or
could reasonably be expected to disparage the Company or its directors or officers. The Company
agrees that it shall not, and it shall cause each executive officer, director and each member of
its Human Resources department not to make a statement (including any statement to any prospective
employer) that is intended to or could reasonably be expected to disparage the Executive.
Notwithstanding the foregoing, nothing in this Section 5 shall prevent any person from (i)
responding to any incorrect, disparaging or derogatory public statement to the extent reasonably
necessary to correct or refute such statement or (ii) making any truthful statement to the extent
(x) necessary with respect to any litigation, arbitration or mediation involving this Agreement,
including, but not limited to, the enforcement of this Agreement or (y) required by law or by any
court, arbitrator, mediator or administrative of legislative body (including any committee thereof)
with actual or apparent jurisdiction to order such person to disclose or make accessible such
information.



     6. Publicity. The Company and the Executive shall cooperate in the preparation of one or more
statements in respect of the Executive’s employment by the Company (each, a “Statement”). The
Company, the Company’s Human Resources Department, Mr. Paul M. Montrone, Chairman and Chief
Executive Officer of the Company, and Mr. Paul M. Meister, Vice Chairman of the Company shall each
respond to any inquiries regarding the Executive’s employment by making statements consistent with
the Statement and will not issue a press release or media release or make any statement or comment
that is inconsistent with such Statement.



     7. Confidentiality. The Executive shall hold in a fiduciary capacity consistent with the
lawyer’s Canon of Ethics for the benefit of the Company all secret, confidential or other
non-public information, knowledge or data relating to the Company or any of its affiliates or
employees, officers or directors in such capacity that he has obtained or may obtain during his
employment in any capacity by the Company or any of its affiliates (including his employment as a
consultant hereunder) (collectively, “Company Information”). Anything herein to the contrary
notwithstanding, the provisions of this Section 7 shall not apply (i) to the extent that disclosure
is required by law or by any court, arbitrator, mediator or administrative or legislative body
(including any committee thereof) with actual or apparent jurisdiction to order the



3









 







Executive to disclose or make accessible any information, (ii) with respect to any other
litigation, arbitration or mediation involving this Agreement, including, but not limited to, the
enforcement of this Agreement, (iii) as to information that becomes generally known to the public
or within the relevant trade or industry other than due to the Executive’s violation of this
Section 7 or (iv) as to information that is or becomes available to the Executive on a
non-confidential basis from a source which is entitled to disclose it to the Executive.



     8. Release. On or about the date hereof, the Executive shall execute the General Release and
Waiver set forth in Exhibit B hereto (the “Release”). If the Executive revokes the Release
in accordance with its terms, this Agreement shall be null and void and any current agreement with
the Executive shall continue in effect in accordance with its terms. The Company acknowledges that
its executive officers do not know, as of the date hereof, of any claims that the Company may have
against the Executive.



     9. Indemnification. To the fullest extent permitted by the Delaware General Corporation Law
and the Company’s certificate of incorporation and by-laws, the Company shall indemnify the
Executive against all expense, liability and loss (including attorneys’ fees, judgments, fines,
excise taxes under the Employee Retirement Income Security Act of 1974 or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by the Executive in connection
with any action, suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that the Executive, or the person of whom he is the legal representative, is or
was a director or officer of the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit plans, whether the
basis of such proceeding is alleged action or inaction in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director, officer, employee
or agent. The Company shall continue to maintain a director’s and officers’ liability insurance
policy covering the Executive to the same extent and with the same limits and retentions as the
Company provides such coverage for its other executive officers and directors.



     10. Outplacement Services. At the Executive’s request, the Company shall provide the
Executive with outplacement services not exceeding $20,000 in value. The Company will release any
executive search firm from any agreement not to solicit for employment any employee or former
employee of the Company as it relates to the Executive.



     11. Entire Agreement; Other Benefits. This Agreement contains the entire agreement of the
parties, relating to the Executive’s employment by Company and termination of employment and all
other matters arising between Company and the Executive prior to the date and time of execution
hereof, and supersedes all prior discussions, agreements, contracts and understandings between the
parties, with the exception of any Agreement Relating to Intellectual Property, Competitive
Activities, Confidential Information, Conflicts of Interests and Release (“Non-Compete Agreement”)
executed by the Executive. With respect to the Non-Compete Agreement, such Non-Compete Agreement
shall prohibit the Executive from providing legal services on an hourly basis to any direct
competitor of the Company. The Executive and the Company agree that it is their specific intent
that all provisions of such Non-Compete Agreement as modified above shall survive the execution of
this Agreement and shall remain fully binding



4









 







and enforceable on the Company and the Executive. This Agreement may be amended only in
writing signed by the parties. The Company agrees to pay the reasonable legal fees and expenses
incurred by the Executive in connection with the negotiation of this Agreement not to exceed
$25,000.



     12. Return of Property and Company Information. The Executive has returned or agrees to
return to Company, within five calendar (5) days of the Executive’s separation from the Company,
all Company Information and copies thereof, including, but not limited to, such Information
contained in documents, memoranda or other recorded form, and all other property belonging to the
Company which is in the Executive’s possession or control, it being understood that such
Information does not include the Executive’s personal books and reference materials, the
Executive’s transaction “bibles” and other bound volumes that contain copies of original materials
and the Executive’s hp Compaq nc4000 computer.



     13. Successors. This Agreement is personal to the Executive and without the prior written
consent of the Company shall not be assignable by the Executive other than by will or the laws of
descent and distribution. In the event of the Executive’s death in any manner, any and all
obligations owed to the Executive shall be paid the Executive’s heirs (whether by will or
otherwise) (including, continuing medical and other benefit coverage for the Executives current
dependents). This Agreement shall inure to the benefit of and be enforceable by the Executive’s
legal representatives. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors.



     14. Amendment. This Agreement may be amended, modified or changed only by a written
instrument executed by the Executive and the Company.



     15. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of New Hampshire or federal law, where applicable. The captions of this
Agreement are not part of the provisions hereof and shall have no force or effect.



     16. Notices. All notices and other communications hereunder shall be in writing; shall be
delivered by hand delivery to the other party or mailed by registered or certified mail, return
receipt requested, postage prepaid; shall be deemed delivered upon actual receipt; and shall be
addressed as follows:



5









 





If to the Executive:



Todd M. DuChene

11 Hunter Drive

Hampton, NH 03842



With a copy to:



Scott Price, Esq.

Milbank, Tweed, Hadley & McCloy LLP

1 Chase Manhattan Plaza

New York, NY 10005



If to the Company:



Mr. John McMahon

Senior Vice President Global Human Resources

Fisher Scientific International Inc.

1 Liberty Lane

Hampton, NH 03842



With a copy to:



Ralph Arditi, Esq.

Skadden Arps Slate Meagher & Flom LLP

4 Times Square

New York, NY 10036


or to such other address as either party shall have furnished to the other in writing in accordance
herewith.




     17. Tax Withholding. Notwithstanding any other provision of this Agreement, the Company may
withhold from any amounts payable under this Agreement, or any other benefits received pursuant
hereto, such minimum Federal, state and/or local taxes as shall be required to be withheld under
any applicable law or regulation. Each of the Executive and the Company shall bear their
respective tax liabilities, if any, resulting from this Agreement. The Executive acknowledges that
the Company has made no representations about the tax consequences of any amount received by him
pursuant to the terms of this Agreement.



     18. Remedies. Each party acknowledges and agrees that if he or it (or the Fisher executives
or the individuals named in such section in the case of Section 5 or 6 hereof) violates and/or
breaches this Agreement in any manner, the other party shall be entitled to an accounting and
repayment of all lost profits, compensation, commissions, remuneration or benefits that such
nonbreaching party has suffered as a result of any such violation or breach. Each party further
acknowledges and agrees that it would be difficult to measure any damages caused to the other which
might result from any breach of the promises set forth in this Agreement, and that, in any event,
money damages would be an inadequate remedy for any such breach. Accordingly, each



6









 







party acknowledges and agrees that if he or it breaches or threatens to breach, any portion of
this Agreement, the other party shall be entitled, in addition to all other remedies that it may
have, to an injunction or other appropriate equitable relief to restrain any such breach without
showing or proving any actual damage to the nonbreaching party and without the necessity of posting
any bond or other security.



     19. Review and Approval. The Compensation Committee of the Board of Directors of the Company
has reviewed and approved the terms of this Agreement, and has authorized the party executing this
Agreement on behalf of the Company to do so.



     IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date
first set forth above.



	 	 	 	 	 
	 
	 	/s/ Todd M. DuChene 	 	 
	 	 	

	 	 	Todd M. DuChene
	 
	 	 	 	 
	 	 	FISHER SCIENTIFIC INTERNATIONAL INC.
	 
	 	 	 	 
	

	 	By:	 	/s/ Kevin P. Clark
	

	 	 	 	

	

	 	 	 	Name: Kevin P. Clark
	

	 	 	 	Title: Chief Financial Officer






7