UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
November 7, 2006
Date of Report (Date of earliest event reported)
Thermo Fisher Scientific Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation)
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1-8002
(Commission File Number)
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04-2209186
(IRS Employer Identification No.)
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81 Wyman Street, P.O. Box 9046
Waltham, Massachusetts
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02454-9046
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code: (781) 622-1000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
In connection with the closing on November 9, 2006 of Thermo Fisher Scientific Inc.s
(formerly Thermo Electron Corporation) (the Company or Thermo Fisher) merger with Fisher
Scientific International Inc. (Fisher) (the Fisher Merger), pursuant to the Agreement and Plan
of Merger dated as of May 7, 2006 by and among Thermo Fisher, Trumpet Merger Corporation (Merger
Sub) and Fisher (the Merger Agreement), the Company entered into the following agreements:
Amendments to Executive Change in Control Retention Agreements
It
is Thermo Fishers practice, after the Fisher Merger, to enter into executive change in
control retention agreements with its executive officers and
certain other key employees that provide cash and equity-based severance benefits if there is a
change in control of Thermo Fisher and their employment is terminated by the Company without
cause or by the individual for good reason, as those terms are defined therein, within 18
months thereafter. For purposes of these agreements, a change in control exists upon (i) the
acquisition by any person of 40% or more of the outstanding common stock or voting securities of
Thermo Fisher; (ii) the failure of the Board to include a majority of directors who are continuing
directors, which term is defined to include directors who were members of the Board on the date of
the agreement or who subsequent to the date of the agreement were nominated or elected by a
majority of directors who were continuing directors at the time of such nomination or election;
(iii) the consummation of a merger, consolidation, reorganization, recapitalization or statutory
share exchange involving Thermo Fisher or the sale or other disposition of all or substantially all
of the assets of Thermo Fisher unless immediately after such transaction (a) all holders of common
stock immediately prior to such transaction own more than 60% of the outstanding voting securities
of the resulting or acquiring corporation in substantially the same proportions as their ownership
immediately prior to such transaction and (b) no person after the transaction owns 40% or more of
the outstanding voting securities of the resulting or acquiring corporation; or (iv) approval by
stockholders of a complete liquidation or dissolution of Thermo Fisher.
Prior
to the Fisher Merger, the executive change in control retention agreements with executive officers and certain key
employees, including each of Marijn Dekkers, Marc Casper, Guy Broadbent, Seth Hoogasian, and Peter
Wilver provided, among other things, that, upon a change in control, all options to purchase common
stock held by the individual as of the date of the change in control shall become fully vested and
immediately exercisable, and shares of common stock issued upon exercise of such stock options and
all shares of restricted common stock held by the individual as of the date of the change in
control will no longer be subject to the right of repurchase by the Company. Pursuant to these
agreements, all stock options and restricted grants for Messrs. Dekkers, Casper, Broadbent,
Hoogasian and Wilver accelerated on November 9, 2006 in connection with the closing of the Fisher
Merger; however, Mr. Dekkers waived acceleration of his stock options in connection with the
closing of the Fisher Merger.
The terms of the executive change in control retention agreement are more fully described in
the Companys Proxy Statement dated April 11, 2006.
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On November 9, 2006, Thermo Fisher entered into an amendment to the executive change in
control retention agreements with its executive officers and certain key employees, including each
of Messrs. Casper, Broadbent, Hoogasian and Wilver, such that upon a change in control after
November 9, 2006, each outstanding option and restricted stock award granted on or after November
9, 2006 no longer accelerates automatically upon a change in control, but vests if the employee is
terminated by the Company without cause or by the individual with good reason, as those terms
are defined therein, in each case within 18 months of a change in control. Through an amendment to
his employment agreement, Mr. Dekkers agreed that his equity grants would no longer automatically
accelerate upon a change in control but would vest upon a termination of his
employment without cause or if he leaves for good reason, regardless
of whether a change in control existed or not. The Form of Amendment No. 1 to Executive Change in
Control Retention Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K. The
letter agreement amending Mr. Dekkers employment agreement is filed as Exhibit 10.2 to this
Current Report on Form 8-K.
New Executive Change in Control Retention Agreements
On
November 9, 2006 Thermo Fisher entered into executive change in
control retention agreements with certain
persons who became executives on or after November 9, 2006 (New Executives), that provide cash
and equity-based severance benefits if there is a change in control of Thermo Fisher and their
employment is terminated by the Company without cause or by the individual for good reason, as
those terms are defined therein, in each case within 18 months thereafter.
The terms of the Companys form of executive change in control retention agreement with New
Executives are substantially similar to the existing form, which are more fully described in the
Companys Proxy Statement dated April 11, 2006, but taking into account the November 9, 2006
amendment described above and filed herewith. With respect to equity, the form of executive change
in control retention agreement with New Executives provides (as does the amendment described above)
that each outstanding option and restricted stock award granted on or after November 9, 2006 vests
if the employee is terminated by the Company without cause or by the individual with good
reason, as those terms are defined therein, in each case within 18 months of a change in control.
The Form of Executive Change in Control Retention Agreement is filed as Exhibit 10.3 to this
Current Report on Form 8-K.
Noncompetition Agreements
Effective November 9, 2006, Thermo Fisher entered into noncompetition agreements with its executive
officers and certain key employees, other than Mr. Dekkers, whose employment agreement already
includes similar provisions.
The terms of the noncompetition agreement provide that during the term of the employees
employment with the Company, and for a period of twelve (12) months thereafter, the employee will
not engage, participate or invest in or be employed by a business which competes with the Company.
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The
agreement also contains provisions that restrict the employees
ability during the term of the employees employment with the
Company and for a period of twelve (12) months after
termination, to solicit or hire employees of the Company or to
solicit customers of the Company.
The
Form of Noncompetition Agreement for executive officers other than
Messrs. Casper and Broadbent is filed as Exhibit 10.4 to this Current Report on Form
8-K. The Noncompetition Agreements for Messrs. Casper and
Broadbent are filed as Exhibits 10.5 and 10.6 to this Current Report
on Form 10-K.
Amended
Severance Agreements for Certain Executive Officers
In
connection with the execution of the noncompetition agreements with
Messrs. Casper and Broadbent, effective November 9, 2006, the
Company entered into amended executive severance agreements with
Messrs. Casper and Broadbent. The amendments provide that if either
of the executives is terminated without cause or leaves the Company for good reason, he
will be entitled to severance pay equal to two times his base salary
and target bonus, as well as a pro rata bonus for the year in which
he is terminated. In
addition, the vesting of the stock options and time-based restricted stock
granted to Messrs. Casper and Broadbent on November 9, 2006, as
described below, would accelerate, and Messrs. Casper and Broadbent
would be entitled to benefits continuation for a period of
twenty-four months following the termination.
Amendment
No. 1 to Executive Severance Agreement with Mr. Casper,
dated as of November 9, 2006, is filed as
Exhibit 10.7 to this Current Report on Form 8-K. Amendment No. 1 to
Executive Severance Agreement with Mr. Broadbent,
dated as of November 9, 2006 is filed as Exhibit
10.8 to this Current Report on Form 8-K.
Amendments
to Equity Plans
On November 9, 2006, the Board of Directors (the Board) of the
Company approved certain changes to Thermo Fishers 2005 Stock
Incentive Plan and Fishers 2005 Equity and Incentive Plan. The amended Thermo Fisher plan
provides that each outstanding option and restricted stock award granted on or after November 9,
2006 vests if the employee is terminated by the Company without cause or by the individual with
good reason, as those terms are defined therein, in each case within 18 months of a change in
control. The amended Fisher plan conforms certain terms of the current Fisher plan to the amended
Thermo Fisher plan. The Thermo Fisher Scientific Inc. 2005 Stock Incentive Plan, as amended and
restated on November 9, 2006, and the Fisher Scientific International Inc. 2005 Equity and
Incentive Plan, as amended for awards granted on or after November 9, 2006, are filed as Exhibits 10.9 and 10.10, respectively, to this Current Report on Form 8-K. The form of Stock Option
Agreement for options granted under the Fisher Scientific International Inc. 2005 Equity and
Incentive Plan, as amended for awards granted on or after November 9, 2006, is filed as Exhibit 10.11 to this
Current Report on Form 8-K.
Item 2.01 Completion of Acquisition or Disposition of Assets
On November 9, 2006, Thermo Fisher issued a press release announcing the consummation of the
transactions contemplated by the Agreement and Plan of Merger dated as of May 7, 2006, by and
between Thermo Electron Corporation, Merger Sub and Fisher. Pursuant to the Merger Agreement, at
the effective time of the Fisher Merger, Merger Sub merged with and into Fisher and each share of
common stock of Fisher issued and outstanding immediately prior to the effective time of the Fisher
Merger, subject to certain exceptions, was converted into the right to receive two shares of Thermo
Fisher common stock. In addition, each
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option to acquire shares of Fisher common stock granted pursuant to option plans and other stock
based awards that was outstanding and unexercised immediately prior to the effective time was
converted into an option to acquire shares of Thermo Fisher common stock, as adjusted to reflect
the exchange ratio.
The foregoing description is qualified in its entirety by the text of the press release, which
is filed as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant
Upon the closing of the Fisher Merger (the Closing), the Company became a co-obligor on the
following notes of Fisher:
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$300,000,000 6
3
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4
% Senior Subordinated Notes due 2014
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$497,500,000 6
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8
% Senior Subordinated Notes due 2015
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$300,000,000 2.50% Convertible Senior Notes due 2023
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$330,000,000 3.25% Convertible Senior Subordinated Notes due 2024
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$344,600,000 Floating Rate Convertible Senior Debentures due 2033
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such that Thermo Fisher agreed to assume, jointly and severally with Fisher, the obligation to
pay the principal of and any premium and interest on the notes on the dates and in the manner
provided for in the relevant notes and the relevant indenture. Interest on the notes is payable
semi-annually, except in respect of the Floating Rate Convertible Senior Debentures due 2033, in
respect of which interest is payable quarterly. Under certain circumstances, holders of the notes
can accelerate the payment obligations upon the occurrence of an event of default, as defined in
the applicable indenture.
Also upon Closing, the Company entered into supplemental indentures in respect of Fishers
2.50% Convertible Senior Notes due 2023, 3.25% Convertible Senior Subordinated Notes due 2024, and
Floating Rate Convertible Senior Debentures due 2033, each of which was required by the applicable
indenture and provided that such notes or debentures, as applicable, if and when convertible, shall
be convertible into the kind and amount of shares of stock which a holder of such security would
have been entitled to receive upon the merger had the notes or debentures, as applicable, been
converted into the common stock of Fisher immediately prior to the merger.
Pursuant to a consent solicitation by Fisher concluded September 20, 2006, at Closing, Thermo
Fisher and Fisher executed supplemental indentures in connection with Fishers 6
3
/
4
% Senior
Subordinated Notes due 2014 and 6
1
/
8
% Senior Subordinated Notes due 2015 that (i) modified the
covenant that required Fisher to provide certain information to the applicable trustee and holders
such that the filing of periodic reports with the Securities and Exchange Commission by Thermo
Fisher will satisfy the information requirement; and (ii) modified the provision addressing the
effect of credit ratings on certain covenants such that the rating
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necessary for termination or suspension of such covenants will be the rating of the relevant series
of notes.
The Supplemental Indentures are filed as Exhibits 4.1, 4.2, 4.3, 4.4 and 4.5 to this Current
Report on Form 8-K.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of
Principal Officers; Compensatory Arrangements of Certain Officers
Departure of Directors
In connection with the closing of the Fisher Merger, on November 9, 2006, Robert McCabe and
John LaMattina resigned from the Board.
Election of Directors
In
connection with the closing of the Fisher Merger, on November 9, 2006, Paul Meister, Bruce
Koepfgen and Scott Sperling were elected to the Board of Directors of Thermo Fisher. Mr. Meister
was appointed to the Strategy Review Committee and the Executive Committee of the Board, Mr.
Koepfgen was appointed to the Audit Committee of the Board and Mr. Sperling was appointed to the
Compensation Committee and the Nominating and Corporate Governance Committee of the Board. The
Company agreed in the Merger Agreement to amend its bylaws to provide that Mr. Meister would serve
as Chairman of the Board of Directors of the Company. A copy of the amendment to Thermo Fishers
Bylaws is filed as Exhibit 3.2 to this Current Report on Form 8-K.
Compensatory Arrangements of Certain Officers
On November 9, 2006, the Compensation Committee of Thermo Fisher took the following actions
relating to executive compensation:
Base Salary Approval of Increases
. Effective November 10, 2006, the
Compensation Committee of the Board of Directors (the Compensation
Committee) increased the annual base salary of the Companys executive officers. The
annual base salary approved by the Compensation Committee for the Companys named executive
officers (as defined by Item 402(a)(3) of Regulation S-K) is set forth in the table
below.
Revised Target Bonus for 2006
. The Companys executive officers have annual target
cash bonus amounts, expressed as a percentage of their annual base salaries. The percentages for
certain executive officers were adjusted by the Compensation Committee on November 9, 2006. The
revised target bonus percentages approved by the Compensation Committee for the Companys named
executive officers are set forth in the table below.
Stock Options Approval of Grants for November 9, 2006
. The Compensation Committee
granted stock options to the Companys executive officers under the Companys 2005 Stock Incentive
Plan, as amended and restated on November 9, 2006. The stock option grants for the executive
officers, other than Messrs. Dekkers, Casper and Broadbent
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are evidenced
by the Companys standard form of Stock Option Agreement to its directors
and officers, a copy of which is filed with this Current Report on
Form 8-K as Exhibit 10.12. The
stock option grant to the chief executive officer, Marijn Dekkers, is evidenced by the Companys
standard form of Stock Option Agreement for Mr. Dekkers, and the letter agreement dated as of
November 9, 2006 between the Company and Mr. Dekkers (described in more detail below), copies of
which are filed with this Current Report on Form 8-K as Exhibits 10.13 and 10.2, respectively. The
stock option grant to the executive vice president, Marc Casper, is evidenced by the Stock Option Agreement for Mr. Casper, a copy of which is filed with this Current
Report on Form 8-K as Exhibit 10.14. The stock option grant to
the senior vice president, Guy Broadbent, is evidenced by the
Stock Option Agreement for Mr. Broadbent, a copy of which is filed with this Current
Report on Form 8-K as Exhibit 10.15. The options for
executive officers generally all (a) vest in equal
annual installments over the five-year period commencing on the date of grant (i.e., the first 1/5
of a stock option grant would vest on the first anniversary of the date of grant) so long as the
executive officer is employed by the Company on each such date, (b) have an exercise price equal to
the closing price of the Companys common stock on the New York Stock Exchange on the date of
grant, and (c) have a term of 7 years from such date. The stock option grants approved by the
Compensation Committee for the Companys named executive officers are set forth in the table below.
Restricted Stock Approval of Grants for November 9, 2006
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The Compensation Committee granted time-based restricted stock to the Companys executive
officers under the Companys 2005 Stock Incentive Plan, as amended and restated on November 9,
2006. The time-based restricted stock grants for the executive
officers, other than Messrs. Dekkers, Casper and Broadbent, are evidenced by the Companys standard form of
Restricted Stock Agreement, a copy of which is filed with this Current Report on Form 8-K as
Exhibit 10.16. The time-based restricted stock grant to the chief executive officer is evidenced
by the Companys standard form of Restricted Stock Agreement for Mr. Dekkers, a copy of which is
filed with this Current Report on Form 8-K as Exhibit 10.17. The time-based restricted stock grant
to the executive vice president is evidenced by the Restricted Stock
Agreement for Mr. Casper, a copy of which is filed with this Current Report on Form 8-K as Exhibit
10.18. The
time-based restricted stock grant to the senior vice president is
evidenced by the Restricted Stock
Agreement for Mr. Broadbent, a copy of which is filed with this
Current Report on Form 8-K as Exhibit 10.19. The time-based
restricted stock grants for executive officers generally all vest in equal annual
installments over the three-year period commencing on the date of grant (i.e., the first 1/3 of a
restricted stock grant would vest on the first anniversary of the date of grant) so long as the
executive officer is employed by the Company on each such date.
The Compensation Committee also granted performance-based restricted stock to the Companys
executive officers under the Companys 2005 Stock Incentive Plan, as amended and restated on
November 9, 2006. The performance-based restricted stock grants for the executive officers are
evidenced by the Companys standard form of Performance Restricted Stock Agreement, a copy of which
is filed with this Current Report on Form 8-K as Exhibit 10.20. In connection with awards of
performance-based restricted stock, the Compensation Committee adopted as performance goals the
measures (i) organic revenue, (ii) adjusted earnings per share and (iii) stock price. The vesting
of the performance-based restricted stock awards is as follows:
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Twenty-five percent (25%) of the restricted shares shall vest on the day the
Compensation Committee certifies that (i) the performance goals related to the
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Companys organic revenues for the period 2007 and 2008 have been achieved, and (ii) the
performance goals related to the Companys stock price during the period January 1, 2009
through November 9, 2010 have been achieved, (such date of certification being referred to
as the First Revenue Vesting Date), and another twenty-five percent (25%) of the
restricted shares shall vest on the first anniversary of the First Revenue Vesting Date; and
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Twenty-five percent (25%) of the restricted shares shall vest on the day the
Compensation Committee certifies that (i) the performance goals related to the Companys
adjusted earnings per share for the period 2007 and 2008 have been achieved and (ii) the
performance goals related to the Companys stock price during the period January 1, 2009
through November 9, 2010 have been achieved (such date of certification being referred to
as the First EPS Vesting Date), and another twenty-five
percent (25%) of the restricted shares shall vest on the first anniversary of the First EPS Vesting Date.
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Restricted shares may vest under one or both of the above clauses; each clause operates
independently of the other. The restricted stock grants approved by the Compensation Committee for
the Companys named executive officers are set forth in the table below.
CEO Employment Agreement -Amendment
. The Compensation Committee approved, and the
Company and Mr. Dekkers entered into, a letter agreement dated as of November 9, 2006 that provided
that (a) all references in Mr. Dekkers Amended & Restated Employment Agreement to the Reference
Bonus Amount shall mean 110% of his then current salary and (b) the stock option to purchase
549,900 shares of the Companys common stock, exercisable for a period of 7 years from the date of
grant, being granted to Mr. Dekkers on November 9, 2006, shall be in lieu of the stock option to
purchase 260,000 shares of the Companys common stock, to which he is entitled pursuant to Section
6(c) of his Amended & Restated Employment Agreement. The letter agreement also modifies certain
provisions of Mr. Dekkers stock option and restricted stock awards granted on or after November,
9, 2006. The letter agreement with Mr. Dekkers is filed as Exhibit 10.2 to this Current Report on
Form 8-K.
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Securities
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Securities
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Underlying
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Securities
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Underlying
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November 9,
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Target
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Underlying
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November 9,
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2006
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Salary
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Bonus for
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November
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2006
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Restricted
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(Effective
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2006
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9, 2006
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Restricted
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Stock Grant
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November
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(percentage
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Option
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Stock Grant
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(performance-
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Name
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10, 2006)
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of salary)
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Grant
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(time-based)
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based)
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Marijn E. Dekkers
President and Chief
Executive Officer
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$
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1,050,000
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110
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%
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549,900
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47,200
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47,200
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Marc N. Casper
Executive Vice
President
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$
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620,000
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85
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%
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251,900
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21,600
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21,600
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Guy Broadbent
Senior Vice
President
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$
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480,000
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70
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%
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151,400
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13,000
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13,000
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Seth H. Hoogasian
Senior Vice
President, General
Counsel and
Secretary
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$
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435,000
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60
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%
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116,800
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10,100
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10,100
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Peter M. Wilver
Senior Vice
President, Chief
Financial Officer
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$
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535,000
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70
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%
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150,400
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12,900
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12,900
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Director Compensation Matters
On November 7, 2006, the Board approved the following annual compensation for non-management
directors, effective upon the closing of the Fisher Merger:
I.
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Board Members (Other than the Chairman)
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A.
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Annual Cash Compensation
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Annual Cash Retainer:
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$
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70,000
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Additional Cash Retainer for Presiding Director:
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$
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3,000
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Additional Cash Retainer for Chairman of Compensation
Committee:
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$
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10,000
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Additional Cash Retainer for Chairman of Audit Committee:
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$
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20,000
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Additional Cash Retainer for Chairs of Nominating
and Corporate Governance Committee; and Strategy Committee:
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$
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5,000
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B.
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Meeting Fees
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If a Board Committee meets more than six times during a calendar year, then the members
thereof shall receive the following fees for attending meetings that exceed six in number:
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Committee Meeting Fees:
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$1,500 per meeting attended in person, on a day
other than a day on which the Board meets
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$1,000 per meeting attended in person, on the same
day as a Board meeting
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Telephone Committee
Meeting Fees:
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$750 per meeting attended by conference telephone
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Directors are also reimbursed for reasonable out-of-pocket expenses incurred in attending
meetings.
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C.
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Stock Options
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Annual grant of options for 10,500 shares, vesting 1/3 on each of the first three
anniversaries of the grant date, expiring seven years from the grant date, except in May
2007.
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II.
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Chairman of the Board
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A.
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Annual Cash Compensation
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Annual Cash Compensation (in lieu of annual retainer and meeting fees): $250,000
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B.
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Stock Options
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Annual grant of options for 10,500 shares, vesting 1/3 on each of the first three
anniversaries of the grant date, expiring seven years from the grant date, except in May
2007.
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Fisher Merger Option Grant to
Non-Management Directors
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In connection with the closing of the Fisher Merger, the Board also approved a grant to
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directors effective upon the closing of the Fisher Merger. Each non-management director received
options for 15,600 shares, vesting 1/3 each on the first three anniversaries of the grant date,
expiring seven years from the grant date. The grants are evidenced by the Companys standard form
of Stock Option Agreement to its directors and officers, a copy of which is filed with this Current
Report on Form 8-K as Exhibit 10.12. In connection with this one-time grant, the Board approved an
amendment to the Companys Directors Stock Option Plan providing that directors will not receive
the normal annual grant in May 2007. The Thermo Fisher Scientific Inc. Directors Stock Option
Plan, as amended and restated on November 9, 2006 is filed with this Current Report on Form 8-K as
Exhibit 10.21.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Effective November 9, 2006, the Companys Third Amended and Restated Certificate of
Incorporation was amended to increase the number of authorized shares of the Companys common stock
and to change the name of the Company to Thermo Fisher Scientific Inc. A copy of the amendment
to the Companys Third Amended and Restated Certificate of Incorporation is filed as Exhibit 3.1 to
this Form 8-K.
Also effective November 9, 2006, Thermo Fishers Bylaws were amended to add provisions
governing the Chief Executive Officer and Chairman positions and board of director composition.
The bylaw amendment provides that as of the effective date of the Fisher Merger, Mr. Dekkers shall
continue to serve as President and Chief Executive Officer of the Company and Mr. Meister shall
become Chairman of the board of directors of the Company. The amendment further provides that on
the effective date of the Fisher Merger, and continuing for a period of three years following the
effective date, the composition of the combined companys board of directors will be maintained at
a ratio of five continuing Thermo Electron directors to three continuing Fisher directors. Any
vacancies on the board of directors created by the cessation of service of a director will be
filled by a nominee proposed to the Nominating and Corporate Governance Committee of the Board by a
majority of the remaining continuing Thermo Electron directors in the case of a vacancy from among
the continuing Thermo Electron directors, and by a majority of the remaining continuing Fisher
directors in the case of a vacancy from among the continuing Fisher directors. Until the third
anniversary of the effective time, the affirmative vote of at least 75% of the full board of
directors will be required for any amendment of or change to the bylaw provisions relating to board
composition described above. A copy of the amendment to Thermo Fishers Bylaws is filed as Exhibit
3.2 to this Form 8-K.
Item 5.05 Amendments to the Registrants Code of Ethics, or Waiver of a Provision of the Code of
Ethics
Effective November 9, 2006, the Board of Directors of the Company approved the Thermo Fisher
Scientific Inc. Code of Business Conduct and Ethics, which was intended to reconcile differences
between the pre-merger Thermo Electron Corporation code and the Fisher Scientific International
Inc. code. The changes from Thermo Fishers pre-merger code of business conduct and ethics relate
primarily to the reconciliation of the two companies policies with respect to gifts to and from
employees and restrictions on alcohol use at company functions.
11
Item 9.01 Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired.
The Report of Independent Registered Public Accounting Firm is hereby incorporated by
reference to Exhibit 99.2 hereto.
The audited consolidated balance sheets of Fisher as of December 31, 2005 and December 31,
2004 and the consolidated statements of operations, consolidated statements of changes in
stockholders equity and other comprehensive income and consolidated statements of cash flows of
Fisher for each of the three years in the period ended December 31, 2005, and the notes related
thereto, are hereby incorporated by reference to Exhibit 99.3 hereto.
The unaudited consolidated balance sheet of Fisher as of September 30, 2006 and the
consolidated statement of operations, consolidated statement of changes in stockholders equity and
consolidated statement of cash flows for the period ended September 30, 2006, and the notes related
thereto, are hereby incorporated by reference to Exhibit 99.4 hereto.
(b) Pro Forma Financial Information.
The following pro forma financial information is being filed with this report as Exhibit 99.5
and is incorporated herein by reference:
1) Unaudited pro forma condensed combined balance sheet as of September 30, 2006;
2) Unaudited pro forma condensed combined statements of income for the nine months ended
September 30, 2006 and the year ended December 31, 2005; and
3) Notes to unaudited pro forma condensed combined financial statements.
(d) Exhibits
The following exhibits are filed herewith:
|
|
|
Exhibit
|
|
|
No.
|
|
Description of Exhibit
|
|
3.1
|
|
Amendment to Thermo Fisher Scientific Inc.s Third Amended and Restated
Certificate of Incorporation
|
|
|
|
3.2
|
|
Amendment to Thermo Fisher Scientific Inc.s Bylaws
|
|
|
|
4.1
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fishers 6
3
/
4
% Senior
Subordinated Notes due 2014
|
|
|
|
4.2
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
|
12
|
|
|
Exhibit
|
|
|
No.
|
|
Description of Exhibit
|
|
|
|
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fishers 6 1/8% Senior
Subordinated Notes due 2015
|
|
|
|
4.3
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York, as successor trustee for J.P. Morgan Trust Company, National
Association, relating to Fishers 2.50% Convertible Senior Notes due 2023
|
|
|
|
4.4
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York, as successor trustee for J.P. Morgan Trust Company, National
Association, relating to Fishers 3.25% Convertible Senior Subordinated Notes
due 2024
|
|
|
|
4.5
|
|
First Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fishers Floating Rate
Convertible Senior Debentures due 2033
|
|
|
|
10.1
|
|
Form of Amendment to Executive Change in Control Retention Agreement dated
November 9, 2006 between the Registrant and certain key employees and
executive officers who signed original agreements prior to November 9, 2006
|
|
|
|
10.2
|
|
Letter Agreement dated November 9, 2006, between the Registrant and Mr. Dekkers
|
|
|
|
10.3
|
|
Form of Executive Change in Control Retention Agreement dated November 9, 2006
between the Registrant and certain persons who became executives on or after
November 9, 2006
|
|
|
|
10.4
|
|
Form of Noncompetition Agreement between the Registrant and certain key
employees and executive officers
|
|
|
|
10.5
|
|
Noncompetition Agreement between
the Registrant and Mr. Casper, dated as of November 9, 2006
|
|
|
|
10.6
|
|
Noncompetition Agreement between
the Registrant and Mr. Broadbent, dated as of November 9, 2006
|
|
|
|
10.7
|
|
Amendment No. 1 to Executive
Severance Agreement with Mr. Casper,
dated as of November 9, 2006
|
|
|
|
10.8
|
|
Amendment No. 1 to Executive
Severance Agreement with Mr. Broadbent,
dated as of November 9, 2006
|
|
|
|
10.9
|
|
Thermo Fisher Scientific Inc. 2005 Stock Incentive Plan, as amended and
restated on November 9, 2006
|
|
|
|
10.10
|
|
Fisher Scientific International Inc. 2005 Equity and Incentive Plan, as
amended for awards granted on or after November 9, 2006
|
|
|
|
10.11
|
|
Form of Stock Option Agreement for use in connection with the grant of stock
options under the Fisher Scientific International Inc. 2005 Equity and
Incentive Plan, as amended for awards granted on or after November 9, 2006
|
|
|
|
10.12
|
|
Form of Thermo Fisher Scientific Stock Option Agreement for use in connection
with the grant of stock options under the Registrants equity plans, as
amended and restated on November 9, 2006 to officers and directors of the
Registrant
|
|
|
|
10.13
|
|
Form of Thermo Fisher Scientific
Inc. Stock Option Agreement for use in connection
with the grant of stock options under the Registrants 2005 Stock Incentive
Plan, as amended and restated on November 9, 2006 to Mr. Dekkers
|
|
|
|
10.14
|
|
Stock Option Agreement dated
November 9, 2006 with Mr. Casper
|
|
|
|
10.15
|
|
Stock Option Agreement dated
November 9, 2006 with Mr. Broadbent
|
|
|
|
10.16
|
|
Form of Thermo Fisher Scientific
Inc. Restricted Stock Agreement for use in connection with the grant
of restricted stock under the Registrants 2005 Stock Incentive
Plan, as amended and restated on November 9, 2006 to officers
of the Registrant
|
|
|
|
10.17
|
|
Form of Thermo Fisher Scientific Inc. Restricted Stock Agreement for use in
connection with the grant of restricted stock under the Registrants 2005
Stock
|
13
|
|
|
Exhibit
|
|
|
No.
|
|
Description of Exhibit
|
|
|
|
Incentive Plan, as amended and restated on November 9, 2006 to Mr.
Dekkers
|
|
|
|
10.18
|
|
Restricted Stock Agreement dated
November 9, 2006 with Mr.
Casper
|
|
|
|
10.19
|
|
Restricted Stock Agreement dated
November 9, 2006 with Mr. Broadbent
|
|
|
|
10.20
|
|
Form of Thermo Fisher Scientific Inc. Performance Restricted Stock Agreement
for use in connection with the grant of performance restricted stock under the
Registrants 2005 Stock Incentive Plan, as amended and restated on November 9,
2006
|
|
|
|
10.21
|
|
Thermo Fisher Scientific Directors Stock Option Plan, as amended and restated
on November 9, 2006
|
|
|
|
10.22
|
|
Summary of Thermo Fisher Scientific Inc. Annual Director Compensation
|
|
|
|
23.1
|
|
Consent of Deloitte & Touche LLP, independent registered public accounting firm
|
|
|
|
99.1
|
|
Press Release dated November 9, 2006
|
|
|
|
99.2
|
|
Report of Independent Registered Public Accounting Firm (incorporated by
reference to Fisher Scientific International Inc.s Current Report on Form 8-K
filed May 11, 2006)
|
|
|
|
99.3
|
|
The audited consolidated balance sheets of Fisher Scientific International
Inc. as of December 31, 2005 and December 31, 2004 and the consolidated
statements of operations, consolidated statements of changes in stockholders
equity and other comprehensive income and consolidated statements of cash
flows of Fisher for each of the three years in the period ended December 31,
2005, and the notes related thereto (incorporated by reference to Fisher
Scientific International Inc.s Current Report on Form 8-K filed May 11, 2006)
|
|
|
|
99.4
|
|
The unaudited consolidated balance sheet of Fisher Scientific International
Inc. as of September 30, 2006 and the consolidated statement of operations,
consolidated statement of changes in stockholders equity and consolidated
statement of cash flows for the period ended September 30, 2006, and the notes
related thereto (incorporated by reference to Fisher Scientific International
Inc.s Quarterly Report on Form 10-Q for the Quarter Ended September 30, 2006)
|
|
|
|
99.5
|
|
Pro Forma financial information listed in Item 9.01(b)
|
14
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused
this report to be signed on its behalf by the undersigned thereunto duly authorized, on this
14
th
day of November, 2006.
|
|
|
|
|
|
|
|
|
THERMO FISHER SCIENTIFIC INC.
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Seth H. Hoogasian
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Seth H. Hoogasian
|
|
|
|
|
Title:
|
|
Senior Vice President, General Counsel and
Secretary
|
15
EXHIBIT INDEX
|
|
|
Exhibit
|
|
|
No.
|
|
Description of Exhibit
|
|
3.1
|
|
Amendment to Thermo Fisher Scientific Inc.s Third Amended and Restated
Certificate of Incorporation
|
|
|
|
3.2
|
|
Amendment to Thermo Fisher Scientific Inc.s Bylaws
|
|
|
|
4.1
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fishers 6
3
/
4
% Senior
Subordinated Notes due 2014
|
|
|
|
4.2
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fishers 6 1/8% Senior
Subordinated Notes due 2015
|
|
|
|
4.3
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York, as successor trustee for J.P. Morgan Trust Company, National
Association, relating to Fishers 2.50% Convertible Senior Notes due 2023
|
|
|
|
4.4
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York, as successor trustee for J.P. Morgan Trust Company, National
Association, relating to Fishers 3.25% Convertible Senior Subordinated Notes
due 2024
|
|
|
|
4.5
|
|
First Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fishers Floating Rate
Convertible Senior Debentures due 2033
|
|
|
|
10.1
|
|
Form of Amendment to Executive
Change in Control Retention Agreement dated November 9, 2006 between the Registrant and certain key employees and
executive officers who signed original agreements prior to November 9, 2006
|
|
|
|
10.2
|
|
Letter Agreement dated November 9, 2006, between the Registrant and Mr. Dekkers
|
|
|
|
10.3
|
|
Form of Executive Change in Control Retention Agreement dated November 9, 2006
between the Registrant and certain persons who became executives on or after
November 9, 2006
|
|
|
|
10.4
|
|
Form of Noncompetition Agreement between the Registrant and certain key
employees and executive officers
|
|
|
|
10.5
|
|
Noncompetition Agreement between
the Registrant and Mr. Casper, dated as of November 9, 2006
|
|
|
|
10.6
|
|
Noncompetition Agreement between
the Registrant and Mr. Broadbent, dated as of November 9, 2006
|
|
|
|
10.7
|
|
Amendment No. 1 to Executive
Severance Agreement with Mr. Casper,
dated as of November 9, 2006
|
|
|
|
10.8
|
|
Amendment No. 1 to Executive
Severance Agreement with Mr. Broadbent,
dated as of November 9, 2006
|
|
|
|
10.9
|
|
Thermo Fisher Scientific Inc. 2005 Stock Incentive Plan, as amended and
restated on November 9, 2006
|
|
|
|
10.10
|
|
Fisher Scientific International Inc. 2005 Equity and Incentive Plan, as
amended for awards granted on or after November 9, 2006
|
|
|
|
10.11
|
|
Form of Stock Option Agreement for use in connection with the grant of stock
options under the Fisher Scientific International Inc. 2005 Equity and
Incentive Plan, as amended for awards granted on or after November 9, 2006
|
|
|
|
10.12
|
|
Form of Thermo Fisher Scientific Stock Option Agreement for use in connection
with the grant of stock options under the Registrants equity plans, as
amended and restated on November 9, 2006 to officers and directors of the
Registrant
|
16
|
|
|
Exhibit
|
|
|
No.
|
|
Description of Exhibit
|
|
10.13
|
|
Form of Thermo Fisher Scientific
Inc. Stock Option Agreement for use in connection
with the grant of stock options under the Registrants 2005 Stock Incentive
Plan, as amended and restated on November 9, 2006 to Mr. Dekkers
|
|
|
|
10.14
|
|
Stock Option Agreement dated
November 9, 2006 with Mr. Casper
|
|
|
|
10.15
|
|
Stock Option Agreement dated
November 9, 2006 with Mr. Broadbent
|
|
|
|
10.16
|
|
Form of Thermo Fisher Scientific Inc. Restricted Stock Agreement for use in
connection with the grant of restricted stock under the Registrants 2005
Stock Incentive Plan, as amended and restated on November 9, 2006 to officers
of the Registrant
|
|
|
|
10.17
|
|
Form of Thermo Fisher Scientific Inc. Restricted Stock Agreement for use in
connection with the grant of restricted stock under the Registrants 2005
Stock Incentive Plan, as amended and restated on November 9, 2006 to Mr.
Dekkers
|
|
|
|
10.18
|
|
Restricted Stock Agreement dated
November 9, 2006 with Mr.
Casper
|
|
|
|
10.19
|
|
Restricted Stock Agreement dated
November 9, 2006 with Mr. Broadbent
|
|
|
|
10.20
|
|
Form of Thermo Fisher Scientific Inc. Performance Restricted Stock Agreement
for use in connection with the grant of performance restricted stock under the
Registrants 2005 Stock Incentive Plan, as amended and restated on November 9,
2006
|
|
|
|
10.21
|
|
Thermo Fisher Scientific Directors Stock Option Plan, as amended and restated
on November 9, 2006
|
|
|
|
10.22
|
|
Summary of Thermo Fisher Scientific Inc. Annual Director Compensation
|
|
|
|
23.1
|
|
Consent of Deloitte & Touche LLP, independent registered public accounting firm
|
|
|
|
99.1
|
|
Press Release dated November 9, 2006
|
|
|
|
99.2
|
|
Report of Independent Registered Public Accounting Firm (incorporated by
reference to Fisher Scientific International Inc.s Current Report on Form 8-K
filed May 11, 2006)
|
|
|
|
99.3
|
|
The audited consolidated balance sheets of Fisher Scientific International
Inc. as of December 31, 2005 and December 31, 2004 and the consolidated
statements of operations, consolidated statements of changes in stockholders
equity and other comprehensive income and consolidated statements of cash
flows of Fisher for each of the three years in the period ended December 31,
2005, and the notes related thereto (incorporated by reference to Fisher
Scientific International Inc.s Current Report on Form 8-K filed May 11, 2006)
|
|
|
|
99.4
|
|
The unaudited consolidated balance sheet of Fisher Scientific International
Inc. as of September 30, 2006 and the consolidated statement of operations,
consolidated statement of changes in stockholders equity and consolidated
statement of cash flows for the period ended September 30, 2006, and the notes
related thereto (incorporated by reference to Fisher Scientific International
Inc.s Quarterly Report on Form 10-Q for the Quarter Ended September 30, 2006)
|
|
|
|
99.5
|
|
Pro Forma financial information listed in Item 9.01(b)
|
17
EXHIBIT 3.2
As amended and effective as of November 9, 2006
THERMO FISHER SCIENTIFIC INC.
(Formerly known as Thermo Electron Corporation)
BY-LAWS
TABLE OF CONTENTS
|
|
|
|
|
Title
|
|
Page
|
|
ARTICLE I STOCKHOLDERS
|
|
|
1
|
|
Section 1. Annual Meeting
|
|
|
1
|
|
Section 2. Special Meetings
|
|
|
1
|
|
Section 3. Notice of Meetings
|
|
|
1
|
|
Section 4. Quorum; Adjournments
|
|
|
1
|
|
Section 5. Voting; Proxies
|
|
|
2
|
|
Section 6. Inspectors of Elections
|
|
|
2
|
|
Section 7. Presiding Officer and Secretary
|
|
|
2
|
|
Section 8. List of Stockholders
|
|
|
3
|
|
Section 9. Advance Notice of Stockholder Nominations and Proposals
|
|
|
3
|
|
Section 10. Action Without Meeting
|
|
|
5
|
|
|
|
|
|
|
ARTICLE II DIRECTORS
|
|
|
6
|
|
Section 1. General Powers
|
|
|
6
|
|
Section 2. Number and Qualification
|
|
|
6
|
|
Section 3. Classes of Directors
|
|
|
6
|
|
Section 4. Terms of Office
|
|
|
6
|
|
Section 5. Vacancies
|
|
|
7
|
|
Section 6. Resignations
|
|
|
7
|
|
Section 7. Meetings
|
|
|
7
|
|
Section 8. Notice of Meetings
|
|
|
7
|
|
Section 9. Quorum
|
|
|
7
|
|
Section 10. Action at Meeting
|
|
|
7
|
|
Section 11. Action by Consent
|
|
|
8
|
|
Section 12. Meetings by Telephone Conference Call
|
|
|
8
|
|
Section 13. Compensation of Directors
|
|
|
8
|
|
Section 14. Committees
|
|
|
8
|
|
Section 15. CEO and Chairman Positions; Board Composition
|
|
|
9
|
|
|
|
|
|
|
Title
|
|
Page
|
|
ARTICLE III OFFICERS
|
|
|
9
|
|
Section 1. General Provisions; Qualification
|
|
|
9
|
|
Section 2. Election
|
|
|
10
|
|
Section 3. Tenure
|
|
|
10
|
|
Section 4. Resignation and Removal
|
|
|
10
|
|
Section 5. Vacancies
|
|
|
10
|
|
Section 6. The Chief Executive Officer
|
|
|
10
|
|
Section 7. The President
|
|
|
10
|
|
Section 8. Vice Presidents
|
|
|
10
|
|
Section 9. Chief Financial Officer
|
|
|
10
|
|
Section 10. General Counsel
|
|
|
11
|
|
Section 11. The Treasurer
|
|
|
11
|
|
Section 12. The Secretary
|
|
|
11
|
|
Section 13. Assistant Treasurers
|
|
|
11
|
|
Section 14. Assistant Secretaries
|
|
|
11
|
|
Section 15. Other Officers
|
|
|
11
|
|
Section 16. Delegation of Duties
|
|
|
11
|
|
Section 17. Salaries
|
|
|
12
|
|
|
|
|
|
|
ARTICLE IV CAPITAL STOCK
|
|
|
12
|
|
Section 1. Certificates for Shares
|
|
|
12
|
|
Section 2. Transfer of Shares of Stock
|
|
|
12
|
|
Section 3. Lost, Stolen or Destroyed Certificates
|
|
|
12
|
|
Section 4. Record Date
|
|
|
12
|
|
Section 5. Regulations
|
|
|
13
|
|
|
|
|
|
|
ARTICLE V GENERAL PROVISIONS
|
|
|
13
|
|
Section 1. Fiscal Year
|
|
|
13
|
|
Section 2. Corporate Seal
|
|
|
13
|
|
Section 3. Waiver of Notice
|
|
|
13
|
|
Section 4. Voting of Securities
|
|
|
14
|
|
Section 5. Evidence of Authority
|
|
|
14
|
|
Section 6. Certificate of Incorporation
|
|
|
14
|
|
Section 7. Transactions with Interested Parties
|
|
|
14
|
|
Section 8. Severability
|
|
|
15
|
|
Section 9. Limitation on Stock Option Repricing
|
|
|
15
|
|
|
|
|
|
|
ARTICLE VI AMENDMENTS
|
|
|
15
|
|
Section 1. By the Board of Directors
|
|
|
15
|
|
Section 2. By the Stockholders
|
|
|
15
|
|
Section 3. Certain Provisions
|
|
|
15
|
|
THERMO FISHER SCIENTIFIC INC.
(Formerly known as Thermo Electron Corporation)
BY-LAWS
ARTICLE I STOCKHOLDERS
Section 1. Annual Meeting
.
The annual meeting of the stockholders, for the election
of directors to succeed those whose terms expire and for the transaction of such other business as
may properly come before the meeting, shall be held at such place, on such date, and at such time
as the Board of Directors may each year fix.
Section 2. Special Meetings
.
Special meetings of stockholders may be called only by
the Board of Directors, the Chairman of the Board of Directors, or the Chief Executive Officer.
Special meetings may be held at such place, on such date, and at such time as the person(s) calling
the meeting may specify. Business transacted at any special meeting of stockholders shall be
limited to matters relating to the purpose or purposes stated in the notice of meeting. The Board
of Directors may postpone or reschedule any previously scheduled special meeting.
Section 3. Notice of Meetings
.
Written notice of the place, date, and time of all
meetings of the stockholders shall be given, not less than ten (10) nor more than sixty (60) days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such
meeting, except as otherwise required by the Delaware General Corporation Law (meaning, here and
hereinafter, the General Corporation Law of the State of Delaware, as amended and in effect from
time to time, the
Delaware General Corporation Law
).
Section 4. Quorum; Adjournments
.
At any meeting of the stockholders, the holders of
a majority of all of the shares of the stock entitled to vote at the meeting, present in person or
by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the
presence of a larger number may be required by the Certificate of Incorporation or the Delaware
General Corporation Law. Where a separate vote by a class or classes or series is required, a
majority of the shares of such class or classes or series present in person or represented by proxy
shall constitute a quorum entitled to take action with respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the presiding officer may adjourn the meeting to
another place, date, or time. When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time thereof are announced
at the meeting at which the adjournment is taken;
provided, however
, that if the date of any
adjourned meeting is more than thirty (30) days after the date for which the meeting was originally
noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted that could have been transacted at the original meeting.
Section 5. Voting; Proxies
.
Each stockholder shall have one vote for each share of
stock entitled to vote held of record by such stockholder unless otherwise provided by the Delaware
General Corporation Law or the Certificate of Incorporation. Each stockholder of record entitled
to vote at a meeting of stockholders, or to express consent or dissent to corporate action in
writing without a meeting, may vote or express such consent or dissent in person or may authorize
another person or persons to vote or act for the stockholder by proxy authorized by an instrument
in writing or by a transmission permitted by law, delivered in accordance with the procedure
established for the meeting. No such proxy shall be voted or acted upon after three years from the
date of its execution, unless the proxy expressly provides for a longer period.
When a quorum is present at any meeting, the affirmative vote of holders of a majority of the
stock present or represented and entitled to vote and voting affirmatively or negatively on a
matter (or if there are two or more classes or series of stock entitled to vote as separate
classes, then in the case of each such class or series, the holders of a majority of the stock of
that class present or represented and voting affirmatively or negatively on a matter) shall
constitute stockholder action on any matter to be voted upon by the stockholders at such meeting,
except when a different vote is required by the Delaware General Corporation Law, the Certificate
of Incorporation or these By-laws. Except as may be otherwise required by the Certificate of
Incorporation, any election by stockholders of directors shall be determined by a plurality of the
votes cast by the stockholders entitled to vote at the election.
Section 6. Inspectors of Elections
.
The Corporation may, and to the extent required
by the Delaware General Corporation Law, shall, in advance of any meeting of the stockholders,
appoint one or more inspectors to act at the meeting and make a written report thereof and perform
the other duties of inspectors at meetings of stockholders as set forth in the Delaware General
Corporation Law. The Corporation may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting
of stockholders, the person presiding at the meeting may, and to the extent required by the
Certificate of Incorporation or the Delaware General Corporation Law, shall, appoint one or more
persons to act at the meeting. Each inspector, before entering the discharge of the inspectors
duties, shall take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of the inspectors ability.
Section 7. Presiding Officer and Secretary
.
The Chairman of the Board, or in the
Chairmans absence, the Chief Executive Officer, or in the Chief Executive Officers absence, the
President, or in the Presidents absence, the Chief Financial Officer, in such order, shall call
meetings of the stockholders to order, and shall act as presiding officer of such meeting. The
presiding officer shall determine the order of business and the procedure at meetings, including
such regulation of the manner of voting and the conduct of discussion as seem to the presiding
officer in order. The presiding officer shall have the power to adjourn meetings to another place,
date, and time. The date and time of the opening and closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the meeting. The Secretary of
the Corporation, or in the Secretarys absence, any Assistant Secretary, shall act as the secretary
at all meetings of the stockholders, but in the absence of the Secretary and any Assistant
Secretary, the presiding officer may appoint any person to act as secretary of the meeting.
2
Section 8. List of Stockholders
.
The Secretary shall prepare, at least 10 days
before every meeting of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting. The list shall also be produced and kept at the
time and place of the meeting during the whole time of the meeting, and may be inspected by any
stockholder who is present.
Section 9. Advance Notice of Stockholder Nominations and Proposals
.
1. Nominations of persons for election to the Board of Directors and the proposal of business
to be transacted by the stockholders may be made at an annual meeting of stockholders (a) pursuant
to the Corporations notice with respect to such meeting, (b) by or at the direction of the Board
or (c) by any stockholder of record of the
Corporation who was a stockholder of record at the time of the giving of the notice provided for in
the following paragraph, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this Section 9.
2. For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (c) of the foregoing paragraph, (1) the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation, (2) such business must be a
proper matter for stockholder action under the Delaware General Corporation Law, (3) if the
stockholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has
provided the Corporation with a Solicitation Notice, as that term is defined in subclause (c)(iii)
of this paragraph, such stockholder or beneficial owner must, in the case of a proposal, have
delivered a proxy statement and form of proxy to holders of at least the percentage of the
Corporations voting shares required under the Delaware General Corporation Law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form
of proxy to holders of a percentage of the Corporations voting shares reasonably believed by such
stockholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be
nominated by such stockholder, and must, in either case, have included in such materials the
Solicitation Notice, and (4) if no Solicitation Notice relating thereto has been timely provided
pursuant to this Section 9, the stockholder or beneficial owner proposing such business or
nomination must not have solicited a number of proxies sufficient to have required the delivery of
such a Solicitation Notice under this Section 9. To be timely, a stockholders notice shall be
delivered to the Secretary at the principal executive offices of the Corporation not less than 60
or more than 75 days prior to the first anniversary (the
Anniversary
) of the date on which the
Corporation first mailed its proxy materials for the preceding years annual meeting of
stockholders;
provided, however
, that if the date of the annual meeting is advanced more than 30
days prior to or delayed by more than 30 days after the anniversary of the preceding years annual
meeting, notice by the stockholder to be timely must be so delivered not later than the close of
business on the later of (i) the 90
th
day prior to such annual meeting or (ii) the
10
th
day following the day on which public announcement of the date of such meeting is
first made. Such stockholders notice shall set forth (a) as to each person
3
whom the stockholder
proposes to nominate for election or reelection as a director all information relating to such
person as would be required to be disclosed in solicitations of proxies for the election of such
nominees as directors pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the
Exchange Act
), and such persons written consent to serve as a director if elected;
(b) as to any other business that the stockholder proposes to bring before the meeting, a brief
description of such business, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial owner, if any, on whose
behalf the nomination or proposal is made; (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination is made (i) the name and address of such
stockholder, as they appear on the Corporations books, and of such beneficial owner, (ii) the
class and number of shares of the Corporation that are owned beneficially and of record by such
stockholder and such beneficial owner, and (iii) whether either such stockholder or beneficial
owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a
proposal, at least the percentage of the Corporations voting shares required under the Delaware
General Corporation Law to carry the proposal or, in the case of a nomination or nominations, a
sufficient number of holders of the Corporations voting shares to elect such nominee or nominees
(an affirmative statement of such intent, a
Solicitation Notice
).
3. Notwithstanding anything in the second sentence of the second paragraph of this Section 9
to the contrary, in the event that the number of directors to be elected to the Board is increased
and there is no public announcement naming all of the nominees for director or specifying the size
of the increased Board made by the Corporation at least 70 days prior to the Anniversary, a
stockholders notice required by this By-law shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not later than the close of
business on the 10
th
day following the day on which such public announcement is first
made by the Corporation.
4. Only persons nominated in accordance with the procedures set forth in this Section 9 shall
be eligible to serve as directors and only such business shall be conducted at an annual meeting of
stockholders as shall have been brought before the meeting in accordance with the procedures set
forth in this Section 9. The presiding officer of the meeting shall have the power and the duty to
determine whether a nomination or any business proposed to be brought before the meeting has been
made in accordance with the procedures set forth in these By-laws and, if any proposed nomination
or business is not in compliance with these By-laws, to declare that such
defective proposed business or nomination shall not be presented for stockholder action at the
meeting and shall be disregarded.
5. Only such business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporations notice of meeting. Nominations of
persons for election to the Board may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporations notice of meeting (a) by or at the
direction of the Board or (b) by any stockholder of record of the Corporation who is a stockholder
of record at the time of giving of notice provided for in this paragraph, who shall be entitled to
vote at the meeting and who complies with the procedures set forth in this Section
4
9, including,
without limitation, the procedures regarding Solicitation Notices. Nominations by stockholders of
persons for election to the Board may be made at such a special meeting of stockholders if the
stockholders notice required by the second paragraph of this Section 9 shall be delivered to the
Secretary at the principal executive offices of the Corporation not later than the close of
business on the later of the 90
th
day prior to such special meeting or the
10
th
day following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board to be elected at such meeting.
For purposes of this Section 9,
public announcement
shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or a comparable national news service or
in a document publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 9, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to matters set forth in this Section 9. Nothing in this Section 9 shall be
deemed to affect any rights of stockholders to request inclusion of proposals in the Corporations
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 10.
Action Without Meeting
.
Unless otherwise provided in the Certificate
of Incorporation, any action required or permitted to be taken by stockholders for or in connection
with any corporate action may be taken without a meeting, without prior notice and without a vote,
if a consent or consents in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of stockholders are
recorded. Deliveries made to the Corporations registered office in Delaware shall be by hand or
certified or registered mail, return receipt requested. Each such written consent shall bear the
date of signature of each stockholder who signs the consent. No written consent shall be effective
to take the corporate action referred to therein unless written consents signed by a number of
stockholders sufficient to take such action are delivered to the Corporation in the manner
specified in this paragraph within sixty (60) days of the earliest dated consent so delivered.
If action is taken by consent of stockholders and in accordance with the foregoing, there
shall be filed with the records of the meetings of stockholders the writing or writings comprising
such consent.
If action is taken by less than unanimous consent of stockholders, prompt notice of the taking
of such action without a meeting shall be given to those who have not consented in writing and a
certificate signed and attested to by the Secretary of the Corporation that such notice was given
shall be filed with the records of the meetings of stockholders.
In the event that the action consented to is such as would have required the filing of a
certificate under any provision of the Delaware General Corporation Law, if such action had
5
been
voted upon by the stockholders at a
meeting thereof, the certificate filed under such provision shall state, in lieu of any statement
required by such provision concerning a vote of stockholders, that written consent has been given
under Section 228 of the Delaware General Corporation Law.
ARTICLE II DIRECTORS
Section 1
.
General Powers
.
The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all of the powers of
the Corporation except as otherwise provided by the Certificate of Incorporation or the Delaware
General Corporation Law. In the event of a vacancy in the Board of Directors, the remaining
directors, except as otherwise provided by the Certificate of Incorporation or the Delaware General
Corporation Law, may exercise the powers of the full Board of Directors until the vacancy is
filled. The Board of Directors may appoint a Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board of Directors and shall perform such duties and possess
such powers as are assigned to the Chairman by the Board of Directors.
Section 2. Number and Qualification
.
Except as otherwise required by the Certificate
of Incorporation, the number of directors that shall constitute the whole Board of Directors shall
be determined by resolution of the Board of Directors, but in no event shall be less than three
(3). The number of directors may be increased at any time by resolution of the Board of Directors.
The number of directors may be decreased at any time and from time to time by a majority of the
directors then in office, but only to eliminate vacancies existing by reason of the death,
resignation, removal or expiration of the term of one or more directors. The Board of Directors
shall be comprised of a majority of directors who are determined by the Board of Directors to be
independent directors as such term is defined by Section 303A(2) of the New York Stock Exchange
Listed Company Manual.
Section 3. Classes of Directors
.
The Board of Directors shall be divided into three
classes as nearly as equal in number as possible. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly as equal as possible. Such classes shall consist of one class of
directors who shall be elected for a three-year term expiring at the annual meeting of stockholders
held in 1986; a second class of directors who shall be elected for a three-year term expiring at
the annual meeting of stockholders held in 1987; and a third class of directors who shall be
elected for a three-year term expiring at the annual meeting of stockholders held in 1988. At each
annual meeting of stockholders beginning in 1986, the successors of the class of directors whose
term expires at that annual meeting shall be elected for a three-year term.
Section 4. Terms of Office
.
Subject to Section 5 of this Article II, each director
shall serve for a term ending on the date of the third annual meeting following the annual meeting
at which such director was elected; provided that the term of each director shall be subject to the
election and qualification of such directors successor and to such directors earlier death,
resignation or removal.
6
Section 5. Vacancies
.
Except as otherwise required by the Certificate of
Incorporation or the Delaware General Corporation Law, any vacancy in the Board of Directors,
however occurring, or any newly-created directorship resulting from an enlargement of the size of
the Board of Directors, shall be filled only by vote of a majority of the directors then in office,
even if less than a quorum, or by the sole remaining director and not by the stockholders. A
director elected to fill a vacancy shall be elected for the unexpired term of such directors
predecessor in office, and a director chosen to fill a newly created directorship shall hold office
until the next election of the class for which such director shall have been chosen, subject in
each case to the election and qualification of the directors successor and to the directors
earlier death, resignation or removal.
Section 6. Resignations
.
Any director may resign by delivering a written resignation
to the Corporation at its principal office or to the Chief Executive Officer or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be effective at some other
time or upon the happening of some other event.
Section 7. Meetings
.
Regular meetings of the Board of Directors may be held without
notice at such time and place, either within or without the State of Delaware, as shall be
determined from time to time by the Board of Directors. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as the annual meeting
of stockholders. Special meetings of the Board of Directors may be called by the Chairman of the
Board, the Chief Executive Officer, a majority of the total number of the whole Board of Directors,
or by one director in the event that there is only a single director in office and may held at any
time and place, within or without the State of Delaware, as specified by the person(s) calling the
meeting.
Section 8. Notice of Meetings
.
No notice of the annual or other regular meetings of
the Board of Directors need be given. Notice of any special meeting of directors shall be given to
each director by the Secretary. Notice to each director shall be duly given by mailing the same
not later than the second business day before the meeting, or by giving notice in person, by fax,
by telephone, or by any other electronic means not later than four hours before the meeting. No
notice of a meeting need be given if all directors are present in person. Any business may be
transacted at any meeting of the Board of Directors, whether or not specified in a notice of the
meeting.
Section 9. Quorum
.
A majority of the total number of the whole Board of Directors
shall constitute a quorum at all meetings of the Board of Directors. In the absence of a quorum at
any such meeting, a majority of the directors present may adjourn the meeting from time to time to
a different date, place, or time without further notice (or waiver of notice) other than
announcement at the meeting, until a quorum shall be present.
Section 10. Action at Meeting
.
At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of the directors present shall be sufficient to take any
action, unless a different vote is specified by the Delaware General Corporation Law, the
Certificate of Incorporation or these By-laws.
7
Section 11. Action by Consent
.
Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of Directors may be taken
without a meeting, if all members of the Board of Directors or committee, as the case may be,
consent to the action in writing, and the written consents are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 12. Meetings by Telephone Conference Call
.
Directors or any members of any
committee designated by the directors may participate in a meeting of the Board of Directors or
such committee by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and participation by such means
shall constitute presence in person at such meeting.
Section 13. Compensation of Directors
.
Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at meetings of the Board of
Directors or committees of the Board of Directors as the Board of Directors or any committee to
which the Board has delegated responsibility for establishing director compensation may from time
to time determine. No such payment shall preclude any director from serving the Corporation or any
of its parent, subsidiary, or affiliate corporations in any other capacity and receiving
compensation for such service.
Section 14. Committees
.
The Board of Directors may designate one or more committees,
each committee to consist of one or more of the directors of the Corporation. In addition to other
committees that the Board of Directors may designate from time to time, the Board of Directors
shall designate a Compensation Committee, an Audit Committee, a Nominating and Corporate Governance
Committee and a Shareholder Rights Plan Committee, each of which shall be comprised only of
directors of the Corporation who are determined by the Board of Directors (i) to be independent
directors as such term is defined by Section 303A(2) of the New York Stock Exchange Listed Company
Manual and (ii) with respect to members of the Audit Committee only, to also be independent as
such term is defined by Rule 10A-3(b)(1) of the Securities and Exchange Commission. The Board of
Directors may designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members of the committee present at any
meeting and not disqualified from voting, whether or not the member or members constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the meeting in the place
of any such absent or disqualified member.
Any such committee, to the extent provided
in the resolution of the Board of Directors and subject to the provisions of the Delaware General
Corporation Law, shall have and may exercise all the powers and authority of the Board of Directors
in the management of the business and affairs of the Corporation and may authorize the seal of the
Corporation to be affixed to all papers that may require it. Each such committee shall keep
minutes and make such reports as the Board of Directors may from time to time request. Except as
the Board of Directors may otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such rules, its business shall be
conducted as nearly as possible in the same manner as is provided in these By-laws for the Board of
Directors. A majority of the members of a committee shall constitute a quorum unless the committee
consist of one or two members, in which event, one member shall
8
constitute a quorum. All matters
shall be determined by a majority vote of the committee members present.
Section 15. CEO and Chairman Positions; Board Composition
.
(a) The Board of Directors of the Corporation has resolved that, as of the Effective Time (as
defined in the Agreement and Plan of Merger, dated May 7, 2006, by and among Thermo Electron
Corporation (Thermo Electron), Trumpet Merger Corporation and Fisher Scientific International
Inc. (Fisher)) as the same may be amended from time to time (the Merger Agreement), Marijn E.
Dekkers shall continue to serve as President and Chief Executive Officer of the Corporation and
Paul M. Meister shall become Chairman of the Board of Directors of the Corporation.
(b) As of the Effective Time, and continuing for a period of three years following the
Effective Time: (i) the ratio of Continuing Thermo Electron Directors to Continuing Fisher
Directors serving on the Board of Directors of the Corporation shall be maintained at five to
three; (ii) all vacancies on the Board of Directors of the Corporation created by the cessation of
service of a Continuing Thermo Electron Director shall be filled by a nominee proposed to the
Nominating and Corporate Governance Committee of the Board of Directors of the Corporation by
a majority of the remaining Continuing Thermo Electron Directors; and (iii) all vacancies on the
Board of Directors of the Corporation created by the cessation of service of a Continuing Fisher
Director shall be filled by a nominee proposed to the Nominating and Corporate Governance Committee
of the Board of Directors of the Corporation by a majority of the remaining Continuing Fisher
Directors. The terms Continuing Thermo Electron Directors and Continuing Fisher Directors
shall for purposes of this Section 15 mean, respectively, the directors of Thermo Electron or
Fisher, as the case may be, as of the Effective Time who were selected to be directors of the
Corporation as of the Effective Time by Thermo Electron or Fisher, as the case may be, prior to the
Effective Time, and any additional directors of the Corporation who take office after the Effective
Time who are nominated, or proposed to the Nominating and Corporate Governance Committee of the
Board of Directors of the Corporation, by a majority of the Continuing Thermo Electron Directors or
the Continuing Fisher Directors, as the case may be.
(c) Until the third anniversary of the Effective Time, any amendment of or change to Section
15(b) of these By-Laws shall require the affirmative vote of at least 75% of the full Board of
Directors of the Corporation.
ARTICLE III OFFICERS
Section 1. General Provisions; Qualification
.
The officers of the Corporation shall
be a Chief Executive Officer, a President, a Chief Financial Officer, a General Counsel, a
Treasurer and a Secretary, and may include one or more Vice Presidents, one or more Assistant
Treasurers and one or more Assistant Secretaries and such other officers as the Board of Directors
may deem appropriate. Any two or more offices may be held by the same person.
9
Section 2. Election
.
The Chief Executive Officer, the President, the Chief Financial
Officer, the General Counsel, the Treasurer and Secretary shall be elected annually by the Board of
Directors at its first meeting following the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any other meeting.
Section 3. Tenure
.
Except as otherwise provided by the Delaware General Corporation
Law, by the Certificate of Incorporation or by these By-laws, each officer shall hold office until
such officers successor is elected and qualified, unless a different term is specified in the vote
choosing or appointing such officer, or until such officers earlier death, resignation or removal.
Section 4. Resignation and Removal
.
Any officer may resign by delivering a written
resignation to the Corporation at its principal office or to the Chief Executive Officer or the
Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective
at some other time or upon the happening of some other event. Any officer may be removed at any
time, with or without cause by vote of the Board of Directors.
Section 5. Vacancies
.
The Board of Directors may at any time fill any vacancy
occurring in any office for any reason. Each such successor shall hold office for the unexpired
term of such successors predecessor and until such successors successor is elected and qualified,
or until such successors earlier death, resignation or removal.
Section 6. The Chief Executive Officer
.
The Chief Executive Officer shall be the
principal executive officer of the Corporation. Subject to the control of the Board of Directors,
the Chief Executive Officer shall have general charge of the business and affairs of the
Corporation. The Chief Executive Officer shall employ and discharge employees and agents of the
Corporation, except such as shall hold their offices by appointment of the Board of Directors, but
the Chief Executive Officer may delegate these powers to other officers as to employees under their
immediate supervision. The Chief Executive Officer shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors.
Section 7. The President
.
The Board of Directors may appoint an officer of the
Corporation to serve as the President of the Corporation. The President shall perform such of the
duties of the Chief Executive Officer of the Corporation on behalf of the Corporation as may be
assigned to the President from time to time by the Board of Directors or the Chief Executive
Officer. In the absence or inability of the Chief Executive Officer to act, the President shall
have and possess all of the powers and discharge all of the duties of the Chief Executive Officer,
subject to the control of the Board of Directors.
Section 8. Vice Presidents
.
Each Vice President shall have such powers and perform
such duties as the Board of Directors, the Chief Executive Officer, or the President may from time
to time prescribe.
Section 9. Chief Financial Officer.
The Board of Directors shall appoint an officer
to serve as the Chief Financial Officer of the Corporation. The Chief Financial Officer shall be
responsible for the Corporations public financial reporting obligations and shall have such
further powers and duties as are incident to the position of Chief Financial Officer, subject to
the
10
direction of the Chief Executive Officer and the Board of Directors.
Section 10. General Counsel.
The Board of Directors shall appoint an officer to
serve as the General Counsel of the Corporation. The General Counsel shall be the chief legal
officer of the Corporation and shall be responsible for all legal affairs of the Corporation, and
shall have such further powers and duties as are incident to the position of General Counsel.
Section 11. The Treasurer
.
The Treasurer shall perform such duties and shall have
such powers as may from time to time be assigned to the Treasurer by the Board of Directors or the
Chief Executive Officer. In addition, subject to the direction of the Board of Directors, the
Treasurer shall perform such duties and have such powers as are incident to the office of
treasurer, including, without limitation, the duty and power to keep and be responsible for all
funds and securities of the Corporation, to deposit funds of the Corporation in depositories, to
disburse such funds, to make proper accounts of such funds, and to render statements of all such
transactions and of the financial condition of the Corporation. The Treasurer shall report
directly to the Chief Executive Officer.
Section 12. The Secretary
.
The Secretary shall keep the minutes of all meetings of
the Board of Directors and of the stockholders and shall attend to the giving and serving of all
notices of the Corporation. The Secretary shall have custody of the seal of the Corporation and
shall affix the seal to all certificates of shares of stock of the Corporation and to such other
papers or documents as may be proper and, when the seal is so affixed, the Secretary shall attest
the same by the Secretarys signature wherever required. The Secretary shall have charge of the
stock certificate book, transfer book, and stock ledger, and such other books and papers as the
Board of Directors may direct. The Secretary shall, in general, perform all the duties of
secretary, subject to the control of the Board of Directors.
Section 13. Assistant Treasurers
.
In the absence or inability of the Treasurer to
act, any Assistant Treasurer may perform all the duties and exercise all of the powers of the
Treasurer, subject to the control of the Board of Directors. An Assistant Treasurer shall also
perform such other duties as the Board of Directors, the Chief Executive Officer, or the Treasurer
may from time to time prescribe.
Section 14. Assistant Secretaries
.
In the absence or
inability of the Secretary to act, any Assistant Secretary may perform all the duties and exercise
all the powers of the Secretary, subject to the control of the Board of Directors. An Assistant
Secretary shall also perform such other duties as the Board of Directors, the Chief Executive
Officer, or the Secretary may from time to time prescribe.
Section 15. Other Officers
.
Other officers shall perform such duties and have such
powers as may from time to time be assigned to them by the Board of Directors.
Section 16. Delegation of Duties
.
In case of the absence of any officer of the
Corporation, or for any other reason that the Board of Directors may deem sufficient, the Board of
Directors may confer, for the time being, the powers or duties, or any of them, of such officer
upon any other officer, or upon any director.
11
Section 17. Salaries
.
Officers of the Corporation shall be entitled to such
salaries, compensation, or reimbursement as shall be fixed or allowed from time to time by the
Board of Directors.
ARTICLE IV CAPITAL STOCK
Section 1. Certificates for Shares.
Each stockholder shall be entitled to a
certificate signed by, or in the name of the Corporation by, the Chairman of the Board, the Chief
Executive Officer, or the President or a Vice President, and by the Secretary or an Assistant
Secretary, or Treasurer or an Assistant Treasurer, certifying the class and number of shares of
record owned by such stockholder. Any or all of the signatures may be a facsimile.
Section 2. Transfer of Shares of Stock.
Transfers of stock shall be made only upon
the transfer books of the Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a certificate is
issued in accordance with Section 3 of this Article IV of these By-laws, an outstanding certificate
for the number of shares involved shall be surrendered for cancellation before a new certificate is
issued therefor.
Section 3. Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft
or destruction of any certificate of stock, another may be issued in its place pursuant to such
regulations as the Board of Directors or transfer agent may establish concerning proof of such
loss, theft, or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 4. Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders, or to receive payment of any dividend or other distribution or
allotment of any rights or to exercise any rights in respect of any change, conversion, or exchange
of stock or for the purpose of any other lawful action, the Board of Directors may, except as
otherwise required by the Delaware General Corporation Law, fix a record date, which record date
shall not precede the date on which the resolution fixing the record date is adopted and which
record date shall not be more than sixty (60) nor less than ten (10) days before the date of any
meeting of stockholders, nor more than sixty (60) days prior to the time for such other action as
hereinbefore described;
provided, however
, that if no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held, and, for determining stockholders entitled to receive payment
of any dividend or other distribution or allotment of rights or to exercise any rights of change,
conversion, or exchange of stock or for any other purpose, the record date shall be at the close of
business on the day on which the Board of Directors adopts a resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting;
provided, however
, that the Board of
Directors may fix a new record date for the adjourned meeting.
12
(b) In order that the Corporation may determine the stockholders entitled to consent to
corporate
action in writing without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors. Any stockholder of
record seeking to have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary of the Corporation, request the Board of Directors to fix
a record date. The Board of Directors shall promptly, but in all events within ten (10) days after
the date on which such a request is received by the Secretary, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of Directors within ten (10) days of the date
on which such a request is received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action by the Board of
Directors is required by applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of business, or any officer
or agent of the Corporation having custody of the book in which proceeding of meetings of
stockholders are recorded. Delivery made to the Corporations registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by applicable law,
the record date for determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the Board of Directors
adopts the resolution taking such prior action.
Section 5. Regulations
.
The issue, transfer, conversion and registration of
certificates of stock shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE V GENERAL PROVISIONS
Section 1. Fiscal Year
. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the Corporation shall end on December 31, beginning with the
fiscal year ending December 31, 2003.
Section 2. Corporate Seal
.
The corporate seal shall be in such form as may be
approved by the Board of Directors. The corporate seal may be altered from time to time by the
Board.
Section 3. Waiver of Notice
.
Whenever any notice whatsoever is required to be given
by the Delaware General Corporation Law, by the Certificate of Incorporation or by these By-laws, a
written waiver of such notice signed by the person entitled to such notice or such persons duly
authorized attorney, whether before or after the time of the event for which notice is to be given
shall be deemed equivalent to the notice required to be given to such person. Neither the business
nor the purpose of any meeting need be specified in such a waiver. The appearance of such person at
such meeting in person or by proxy, shall constitute waiver of notice except attendance for the
sole purpose of objecting to the timeliness or lack of notice.
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Section 4. Voting of Securities
.
Subject always to the specific directions of the
Board of Directors, any officer of the Corporation may waive notice of, and act as, or appoint any
person or persons to act as, proxy or attorney-in-fact for this Corporation (with or without power
of substitution) at, any meeting of stockholders or shareholders of any other corporation or
organization, the securities of which may be held by this Corporation. The Board of Directors, by
resolution from time to time, may confer like powers upon any other person or persons.
Section 5. Evidence of Authority
.
A certificate by the Secretary, or an Assistant
Secretary as to any action taken by the stockholders, directors, a committee or any officer or
representative of the Corporation shall as to all persons who rely on the certificate in good faith
be conclusive evidence of such action.
Section 6. Certificate of Incorporation
.
All references in these By-laws to the
Certificate of Incorporation shall be deemed to refer to the Third Amended
and Restated Certificate of Incorporation of the Corporation, as amended, restated and in effect
from time to time.
Section 7. Transactions with Interested Parties
.
No contract or transaction between
the Corporation and one or more of the directors or officers, or between the Corporation and any
other corporation, partnership, association or other organization in which one or more of the
directors or officers are directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the Board of Directors that
authorizes the contract or transaction or solely because the interested directors votes are
counted for such purpose, if:
(1) The material facts as to the directors or officers relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum;
(2) The material facts as to the directors or officers relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders entitled to
vote thereon, and the contract or transaction is specifically approved in good faith by vote
of the stockholders; or
(3) The contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.
Common or interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee that authorizes the contract or transaction.
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Section 8. Severability
.
Any determination that any provision of these By-laws is
for any reason inapplicable, illegal, or ineffective shall not affect or invalidate any other
provision of these By-laws.
Section 9. Limitation on Stock Option Repricing
.
No stock option granted to an
officer or director of the Corporation shall, after issuance, be repriced to a lower exercise price
(other than adjustments for stock splits, stock dividends, spinoffs, recapitalizations and like
events), without the prior affirmative vote of the holders of a majority of the shares of capital
stock of the Corporation present at a stockholders meeting in person or by proxy and entitled to
vote thereon.
ARTICLE VI AMENDMENTS
Section 1. By the Board of Directors
.
In furtherance and not in limitation of the
powers conferred by the Delaware General Corporation Law and the Certificate of Incorporation, the
Board of Directors is expressly authorized to alter, amend or repeal any provision of these By-laws
or make new by-laws.
Section 2. By the Stockholders
.
Except as otherwise provided in Section 3 of this
Article VI, the stockholders of the Corporation shall have the power to alter, amend or repeal any
provision of these By-laws or make new by-laws by affirmative vote of the holders of a majority of
the shares of capital stock of the Corporation issued and outstanding and entitled to vote, voting
together as a single class;
provided, however
, that the power of the stockholders to, alter, amend
or repeal any provision of these By-laws or make any new by-laws is further subject to any
affirmative vote of the holders of any particular
class or series of capital stock of the Corporation as may be required by the Delaware General
Corporation Law, the Certificate of Incorporation, or these By-laws.
Section 3. Certain Provisions
.
Notwithstanding any other provision of the Delaware
General Corporation Law, the Certificate of Incorporation, or these By-laws (including Section 2 of
this Article VI), the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66 2/3%) of the shares of capital stock of the Corporation issued and outstanding and entitled to
vote shall be required to alter, amend or repeal, or make any new by-laws inconsistent with,
Article II or this Article VI of these By-laws. This Section 3 is not intended to abrogate or
otherwise affect the power of the Board of Directors to amend Article II or Article VI pursuant to
Section 1 of this Article VI.
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EXHIBIT 4.3
SUPPLEMENTAL INDENTURE
FISHER SCIENTIFIC INTERNATIONAL INC.
2.50% Convertible Senior Notes due 2023
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 9, 2006
The Bank of New York, as successor trustee for J.P. Morgan Trust Company, National Association
SECOND SUPPLEMENTAL INDENTURE, dated as of November 9, 2006, between Fisher Scientific
International Inc., a Delaware corporation (the Company), Thermo Fisher Scientific Inc. (formerly
known as Thermo Electron Corporation, Thermo) and The Bank of New York, as successor trustee for
J.P. Morgan Trust Company, National Association, (the Trustee).
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of July 7, 2003 as
supplemented by a Supplemental Indenture, dated as of May 9, 2005 (together, the Indenture),
pursuant to which the Company issued its 2.50% Convertible Senior Notes due 2023 (the Notes);
WHEREAS, on May 8, 2006, Thermo and the Company announced that they and Trumpet Merger
Corporation, a Delaware corporation and a wholly owned subsidiary of Thermo (Merger Sub), had
entered into an Agreement and Plan of Merger, dated as of May 7, 2006, pursuant to which Merger Sub
would merge with and into the Company, with the Company surviving as a wholly owned subsidiary of
Thermo (the Merger);
WHEREAS, in connection with the Merger, Thermo desires to fully, unconditionally and
irrevocably assume, jointly and severally with the Company, the obligation to pay the principal of
and any premium and interest on the Notes on the dates and in the manner provided for in the Notes
and the Indenture;
WHEREAS, Section 13.1 of the Indenture provides that the Company and the Trustee may amend the
Indenture and the Notes without notice to or the consent of any Holder to amend the Indenture or
the Notes in any other manner necessary or desirable and that will not adversely affect the rights
of any Holder;
WHEREAS, Section 9.12 of the Indenture provides that upon certain events including a merger of
the Company, the Company shall execute with the Trustee a supplemental indenture providing that the
Notes shall be convertible into the kind and amount of shares of stock which a Holder would have
been entitled to receive upon such merger had the Notes been converted into the common stock of the
Company immediately prior to such merger;]
WHEREAS, the execution and delivery of this instrument have been duly authorized and all
conditions and requirements necessary to make this instrument a valid and binding agreement have
been duly performed and complied with; and
WHEREAS, this Second Supplemental Indenture is being executed simultaneously with the closing
of the Merger.
NOW, THEREFORE, for and in consideration of the premises and other good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted
and agreed, for the equal proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1. CO-OBLIGATION
Section 1.01. Thermo hereby fully, unconditionally and irrevocably assumes and agrees to
perform and discharge, jointly and severally with the Company, the obligation to pay the principal
of and any premium and interest on the Notes on the dates and in the manner provided for in the
Notes and the Indenture. The obligations of Thermo hereunder are primary and not merely those of a
surety. Thermo hereby waives diligence, presentment, demand of payment, any right to require a
proceeding first against the Company, protest or notice and all demands whatsoever with respect to
the Notes or the indebtedness evidenced thereby.
Section 1.02. The agreements of Thermo herein shall be valid and obligatory with respect to
any Note that heretofore or hereinafter has been authenticated and delivered under the Indenture.
ARTICLE 2. EFFECT OF MERGER
Section 2.01. In accordance with Section 9.12 of the Indenture, upon the surrender for
conversion of any of
the Notes, the Holder thereof shall receive, in lieu of the common
stock of the Company, the
amount of common stock of Thermo that such Holder would have been entitled to receive upon the
Merger had the Notes been converted into the common stock of the Company immediately prior to the
Merger, subject to adjustment as nearly equivalent as may be practicable to the adjustments
provided for in Article 9 of the Indenture.
ARTICLE 3. MISCELLANEOUS
Section 3.01. On the date hereof, the Indenture shall be supplemented and amended in
accordance herewith, and this Second Supplemental Indenture shall form a part of the Indenture for
all purposes, and the Holder of every security heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby. The Trustee accepts the trusts created by the
Indenture, as amended and supplemented by this Second Supplemental Indenture, and agrees to perform
the same upon the terms and conditions of the Indenture, as amended and supplemented by this Second
Supplemental Indenture.
Section 3.02. All capitalized terms used and not defined herein shall have the respective
meanings assigned to them in the Indenture.
Section 3.03. This Second Supplemental Indenture shall become effective as of the date hereof
at such time as executed counterparts of this Second Supplemental Indenture have been delivered by
each party hereto to the other party hereto.
Section 3.04. All provisions of this Second Supplemental Indenture shall be deemed to be
incorporated in, and made a part of, the Indenture; and the Indenture, as amended and supplemented
by this Second Supplemental Indenture, shall be read, taken and construed as one and the same
instrument and all provisions in the Indenture and the Notes shall remain in full force and effect.
Section 3.05. In case any provisions in this Second Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 3.06. The parties may sign any number of copies of this Second Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Second Supplemental Indenture.
Section 3.07. The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Second Supplemental Indenture or for or in respect of the
recitals contained herein, all of which are made solely by the Company and Thermo.
Section 3.08. In entering into this Second Supplemental Indenture, the Trustee shall be
entitled to the benefit of every provision of the Indenture and the Notes relating to the conduct
or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein
so provided.
Section 3.09. All covenants and agreements in this Second Supplemental Indenture by the
Company, Thermo and the Trustee shall be binding upon and accrue to the benefit of their respective
successors. Nothing in this Second Supplemental Indenture express or implied, shall give to any
Person, other than the parties hereto and their successors under the Indenture and the Holders of
the Notes, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 3.10. This Second Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly
executed as of the date first written above.
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THERMO FISHER SCIENTIFIC INC.
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By:
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/s/ Kenneth J. Apicerno
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Name: Kenneth J. Apicerno
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Title: Treasurer
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FISHER SCIENTIFIC INTERNATIONAL INC.
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By:
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/s/ Michael Dambach
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Name: Michael Dambach
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Title: Treasurer
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THE BANK OF NEW YORK
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By
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/s/ Mary LaGumina
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Name: Mary LaGumina
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Title: Vice President
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EXHIBIT 4.4
SUPPLEMENTAL INDENTURE
FISHER SCIENTIFIC INTERNATIONAL INC.
3.25% Convertible Senior Subordinated Notes due 2024
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 9, 2006
The Bank of New York, as successor trustee for J.P. Morgan Trust Company, National Association
SECOND SUPPLEMENTAL INDENTURE, dated as of November 9, 2006, between Fisher Scientific
International Inc., a Delaware corporation (the Company), Thermo Fisher Scientific Inc. (formerly
known as Thermo Electron Corporation, Thermo) and The Bank of New York, as successor trustee for
J.P. Morgan Trust Company, National Association, (the Trustee).
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of January 20,
2004, as supplemented by a Supplemental Indenture No. 1, dated as of March 3, 2004 (together, the
Indenture), pursuant to which the Company issued its 3.25% Convertible Senior Subordinated Notes
due 2024 (the Notes);
WHEREAS, on May 8, 2006, Thermo and the Company announced that they and Trumpet Merger
Corporation, a Delaware corporation and a wholly owned subsidiary of Thermo (Merger Sub), had
entered into an Agreement and Plan of Merger, dated as of May 7, 2006, pursuant to which Merger Sub
would merge with and into the Company, with the Company surviving as a wholly owned subsidiary of
Thermo (the Merger);
WHEREAS, in connection with the Merger, Thermo desires to fully, unconditionally and
irrevocably assume, jointly and severally with the Company, the obligation to pay the principal of
and any premium and interest on the Notes on the dates and in the manner provided for in the Notes
and the Indenture;
WHEREAS, Section 901 of the Indenture provides that without the consent of Holders, the
Company when authorized by a board resolution, and the Trustee, at any time and from time to time,
may enter into a supplemental indenture to make any change that does not adversely affect the
rights of any Holder in any material respect;
WHEREAS, Section 10.12 of the Indenture provides that upon certain events including a merger
of the Company, the Company shall execute with the Trustee a supplemental indenture providing that
the Notes shall be convertible into the kind and amount of shares of stock which a Holder would
have been entitled to receive upon such merger had the Notes been converted into the common stock
of the Company immediately prior to such merger;
WHEREAS, the execution and delivery of this instrument have been duly authorized and all
conditions and requirements necessary to make this instrument a valid and binding agreement have
been duly performed and complied with; and
WHEREAS, this Second Supplemental Indenture is being executed simultaneously with the closing
of the Merger.
NOW, THEREFORE, for and in consideration of the premises and other good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted
and agreed, for the equal proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1. CO-OBLIGATION
Section 1.01. Thermo hereby fully, unconditionally and irrevocably assumes and agrees to
perform and discharge, jointly and severally with the Company, the obligation to pay the principal
of and any premium and interest on the Notes on the dates and in the manner provided for in the
Notes and the Indenture. The obligations of Thermo hereunder are primary and not merely those of a
surety. Thermo hereby waives diligence, presentment, demand of payment, any right to require a
proceeding first against the Company, protest or notice and all demands whatsoever with respect to
the Notes or the indebtedness evidenced thereby.
Section 1.02. The agreements of Thermo herein shall be valid and obligatory with respect to
any Note that heretofore or hereinafter has been authenticated and delivered under the Indenture.
ARTICLE 2. EFFECT OF MERGER
Section 2.01. In accordance with Section 10.12 of the Indenture, upon the surrender for
conversion of any of
the Notes, the Holder thereof shall receive, in lieu of the common stock of the Company, the
amount of common
stock of Thermo that such Holder would have been entitled to receive upon the
Merger had the Notes been converted into the common stock of the Company immediately prior to the
Merger, subject to adjustment as nearly equivalent as may be practicable to the adjustments
provided for in Article 10 of the Indenture.
ARTICLE 3. MISCELLANEOUS
Section 3.01. On the date hereof, the Indenture shall be supplemented and amended in
accordance herewith, and this Second Supplemental Indenture shall form a part of the Indenture for
all purposes, and the Holder of every security heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby. The Trustee accepts the trusts created by the
Indenture, as amended and supplemented by this Second Supplemental Indenture, and agrees to perform
the same upon the terms and conditions of the Indenture, as amended and supplemented by this Second
Supplemental Indenture.
Section 3.02. All capitalized terms used and not defined herein shall have the respective
meanings assigned to them in the Indenture.
Section 3.03. This Second Supplemental Indenture shall become effective as of the date hereof
at such time as executed counterparts of this Second Supplemental Indenture have been delivered by
each party hereto to the other party hereto.
Section 3.04. All provisions of this Second Supplemental Indenture shall be deemed to be
incorporated in, and made a part of, the Indenture; and the Indenture, as amended and supplemented
by this Second Supplemental Indenture, shall be read, taken and construed as one and the same
instrument and all provisions in the Indenture and the Notes shall remain in full force and effect.
Section 3.05. In case any provisions in this Second Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 3.06. The parties may sign any number of copies of this Second Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Second Supplemental Indenture.
Section 3.07. The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Second Supplemental Indenture or for or in respect of the
recitals contained herein, all of which are made solely by the Company and Thermo.
Section 3.08. In entering into this Second Supplemental Indenture, the Trustee shall be
entitled to the benefit of every provision of the Indenture and the Notes relating to the conduct
or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein
so provided.
Section 3.09. All covenants and agreements in this Second Supplemental Indenture by the
Company, Thermo and the Trustee shall be binding upon and accrue to the benefit of their respective
successors. Nothing in this Second Supplemental Indenture express or implied, shall give to any
Person, other than the parties hereto and their successors under the Indenture and the Holders of
the Notes, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 3.10. This Second Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly
executed as of the date first written above.
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THERMO FISHER SCIENTIFIC INC.
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By:
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/s/ Kenneth J. Apicerno
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Name: Kenneth J. Apicerno
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Title: Treasurer
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FISHER SCIENTIFIC INTERNATIONAL INC.
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By:
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/s/ Michael Dambach
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Name: Michael Dambach
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Title: Treasurer
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THE BANK OF NEW YORK
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By
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/s/ Mary LaGumina
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Name: Mary LaGumina
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Title: Vice President
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EXHIBIT 4.5
SUPPLEMENTAL INDENTURE
FISHER SCIENTIFIC INTERNATIONAL INC.
Floating Rate Convertible Senior Debentures due 2033
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 9, 2006
The Bank of New York Trust Company, N.A., as Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of November 9, 2006, between Fisher Scientific
International Inc., a Delaware corporation (the Company), Thermo Fisher Scientific Inc. (formerly
known as Thermo Electron Corporation, Thermo) and The Bank of New York Trust Company, N.A., as
trustee (the Trustee).
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of August 3, 2004
(the Indenture), pursuant to which the Company issued its Floating Rate Convertible Senior
Debentures due 2033 (the Notes);
WHEREAS, on May 8, 2006, Thermo and the Company announced that they and Trumpet Merger
Corporation, a Delaware corporation and a wholly owned subsidiary of Thermo (Merger Sub), had
entered into an Agreement and Plan of Merger, dated as of May 7, 2006, pursuant to which Merger Sub
would merge with and into the Company, with the Company surviving as a wholly owned subsidiary of
Thermo (the Merger);
WHEREAS, in connection with the Merger, Thermo desires to fully, unconditionally and
irrevocably assume, jointly and severally with the Company, the obligation to pay the principal of
and any premium and interest on the Notes on the dates and in the manner provided for in the Notes
and the Indenture;
WHEREAS, Section 7.1 of the Indenture provides that the Company when authorized by a board
resolution, and the Trustee, at any time and from time to time, may amend the Indenture and the
Notes to add or modify any other provisions herein with respect to matters or questions arising
hereunder which the Company and the Trustee may deem necessary or desirable and which will not
adversely affect the interests of the Holders of the Notes;
WHEREAS, Section 12.4 of the Indenture provides that upon certain events including a merger of
the Company, the Company shall execute with the Trustee a supplemental indenture providing that the
Notes shall be convertible into the kind and amount of shares of stock which a Holder would have
been entitled to receive upon such merger had the Notes been converted into the common stock of the
Company immediately prior to such merger;
WHEREAS, the execution and delivery of this instrument have been duly authorized and all
conditions and requirements necessary to make this instrument a valid and binding agreement have
been duly performed and complied with; and
WHEREAS, this First Supplemental Indenture is being executed simultaneously with the closing
of the Merger.
NOW, THEREFORE, for and in consideration of the premises and other good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted
and agreed, for the equal proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1. CO-OBLIGATION
Section 1.01. Thermo hereby fully, unconditionally and irrevocably assumes and agrees to
perform and discharge, jointly and severally with the Company, the obligation to pay the principal
of and any premium and interest on the Notes on the dates and in the manner provided for in the
Notes and the Indenture. The obligations of Thermo hereunder are primary and not merely those of a
surety. Thermo hereby waives diligence, presentment, demand of payment, any right to require a
proceeding first against the Company, protest or notice and all demands whatsoever with respect to
the Notes or the indebtedness evidenced thereby.
Section 1.02. The agreements of Thermo herein shall be valid and obligatory with respect to
any Note that heretofore or hereinafter has been authenticated and delivered under the Indenture.
ARTICLE 2. EFFECT OF MERGER
Section 2.01. In accordance with Section 12.4 of the Indenture, upon the surrender for
conversion of any of
the Notes, the Holder thereof shall receive, in lieu of the common stock of the Company, the
amount of common
stock of Thermo that such Holder would have been entitled to receive upon the
Merger had the Notes been converted into the common stock of the Company immediately prior to the
Merger, subject to adjustment as nearly equivalent as may be practicable to the adjustments
provided for in Article 12 of the Indenture.
ARTICLE 3. MISCELLANEOUS
Section 3.01. On the date hereof, the Indenture shall be supplemented and amended in
accordance herewith, and this First Supplemental Indenture shall form a part of the Indenture for
all purposes, and the Holder of every security heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby. The Trustee accepts the trusts created by the
Indenture, as amended and supplemented by this First Supplemental Indenture, and agrees to perform
the same upon the terms and conditions of the Indenture, as amended and supplemented by this First
Supplemental Indenture.
Section 3.02. All capitalized terms used and not defined herein shall have the respective
meanings assigned to them in the Indenture.
Section 3.03. This First Supplemental Indenture shall become effective as of the date hereof
at such time as executed counterparts of this First Supplemental Indenture have been delivered by
each party hereto to the other party hereto.
Section 3.04. All provisions of this First Supplemental Indenture shall be deemed to be
incorporated in, and made a part of, the Indenture; and the Indenture, as amended and supplemented
by this First Supplemental Indenture, shall be read, taken and construed as one and the same
instrument and all provisions in the Indenture and the Notes shall remain in full force and effect.
Section 3.05. In case any provisions in this First Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 3.06. The parties may sign any number of copies of this First Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this First Supplemental Indenture.
Section 3.07. The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the
recitals contained herein, all of which are made solely by the Company and Thermo.
Section 3.08. In entering into this First Supplemental Indenture, the Trustee shall be
entitled to the benefit of every provision of the Indenture and the Notes relating to the conduct
or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein
so provided.
Section 3.09. All covenants and agreements in this First Supplemental Indenture by the
Company, Thermo and the Trustee shall be binding upon and accrue to the benefit of their respective
successors. Nothing in this First Supplemental Indenture express or implied, shall give to any
Person, other than the parties hereto and their successors under the Indenture and the Holders of
the Notes, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 3.10. This First Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly
executed as of the date first written above.
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THERMO FISHER SCIENTIFIC INC.
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By:
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/s/ Kenneth J. Apicerno
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Name: Kenneth J. Apicerno
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Title: Treasurer
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FISHER SCIENTIFIC INTERNATIONAL INC.
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By:
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/s/ Michael Dambach
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Name: Michael Dambach
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Title: Treasurer
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THE BANK OF NEW YORK TRUST COMPANY, N.A.
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By:
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/s/ Peter M. Murphy
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Name: Peter M. Murphy
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Title: Vice President
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EXHIBIT 10.3
EXECUTIVE CHANGE IN CONTROL RETENTION AGREEMENT
THIS AGREEMENT by and between THERMO FISHER SCIENTIFIC INC., a Delaware corporation (the
Company), and ______ (the Executive) is made as of November 9, 2006 (the Effective Date).
WHEREAS, the Company recognizes that, as is the case with many publicly-held corporations, the
possibility of a change in control of the Company exists and that such possibility, and the
uncertainty and questions which it may raise among key personnel, may result in the departure or
distraction of key personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board of Directors of the Company (the Board) has determined that appropriate
steps should be taken to reinforce and encourage the continued employment and dedication of the
Companys key personnel without distraction from the possibility of a change in control of the
Company and related events and circumstances;
NOW, THEREFORE, as an inducement for and in consideration of the Executive remaining in its
employ, the Company agrees that the Executive shall receive the severance benefits set forth in
this Agreement in the event the Executives employment with the Company is terminated under the
circumstances described below subsequent to a Change in Control Date (as defined in Section 1.2).
1.
Key Definitions
.
As used herein, the following terms shall have the following respective meanings:
1.1
Change in Control
means an event or occurrence set forth in any one or more of
subsections (a) through (d) below (including an event or occurrence that constitutes a Change in
Control under one of such subsections but is specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) (a Person)
of beneficial ownership of any capital stock of the Company if, after such acquisition, such Person
beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 40% or more
of either (i) the then-outstanding shares of common stock of the Company (the Outstanding Company
Common Stock) or (ii) the combined voting power of the then-outstanding securities of the Company
entitled to vote generally in the election of directors (the Outstanding Company Voting
Securities);
provided
,
however
, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change in Control: (i) any acquisition by the
Company, (ii) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (iii) any acquisition by
any corporation pursuant to a transaction which complies with clauses (i) and (ii) of subsection
(c) of this Section 1.1; or
Page 1 of 11
(b) such time as the Continuing Directors (as defined below) do not constitute a
majority of the Board (or, if applicable, the Board of Directors of a successor corporation to the
Company), where the term Continuing Director means at any date a member of the Board (i) who was
a member of the Board on the date of the execution of this Agreement or (ii) who was nominated or
elected subsequent to such date by at least a majority of the directors who were Continuing
Directors at the time of such nomination or election or whose election to the Board was recommended
or endorsed by at least a majority of the directors who were Continuing Directors at the time of
such nomination or election;
provided
,
however
, that there shall be excluded from
this clause (ii) any individual whose initial assumption of office occurred as a result of an
actual or threatened election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents, by or on behalf of a person other than
the Board; or
(c) the consummation of a merger, consolidation, reorganization, recapitalization or statutory
share exchange involving the Company or a sale or other disposition of all or substantially all of
the assets of the Company in one or a series of transactions (a Business Combination), unless,
immediately following such Business Combination, each of the following two conditions is satisfied:
(i) all or substantially all of the individuals and entities who were the beneficial owners of the
Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more than 60% of the
then-outstanding shares of common stock and the combined voting power of the then-outstanding
securities entitled to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns the Company or substantially all of the
Companys assets either directly or through one or more subsidiaries) (such resulting or acquiring
corporation is referred to herein as the Acquiring Corporation) in substantially the same
proportions as their ownership, immediately prior to such Business Combination, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, respectively; and (ii) no Person
(excluding the Acquiring Corporation or any employee benefit plan (or related trust) maintained or
sponsored by the Company or by the Acquiring Corporation) beneficially owns, directly or
indirectly, 40% or more of the then outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding securities of such corporation
entitled to vote generally in the election of directors; or
(d) approval by the stockholders of the Company of a complete liquidation or dissolution of
the Company.
1.2
Change in Control Date
means the first date during the Term (as defined in
Section 2) on which a Change in Control occurs. Anything in this Agreement to the contrary
notwithstanding, if (a) a Change in Control occurs, (b) the Executives employment with the Company
is terminated prior to the date on which the Change in Control occurs, and (c) it is reasonably
demonstrated by the Executive that such termination of employment (i) was at the request of a third
party who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise
arose in connection with or in anticipation of a Change in Control, then for all
Page 2 of 11
purposes of this
Agreement the Change in Control Date shall mean the date immediately prior to the date of such
termination of employment.
1.3
Cause
means the Executives willful engagement in illegal conduct or gross
misconduct after the Change in Control Date which is materially and demonstrably injurious to the
Company. For purposes of this Section 1.3, no act or failure to act by the Executive shall be
considered willful unless it is done, or omitted to be done, in bad faith and without reasonable
belief that the Executives action or omission was in the best interests of the Company.
1.4
Good Reason
means the occurrence, without the Executives written consent, of
any of the events or circumstances set forth in clauses (a) through (g) below. Notwithstanding the
occurrence of any such event or circumstance, such occurrence shall not be deemed to constitute
Good Reason if, prior to the Date of Termination specified in the Notice of Termination (each as
defined in Section 3.2(a)) given by the Executive in respect thereof, such event or circumstance
has been fully corrected and the Executive has been reasonably compensated for any losses or
damages resulting therefrom (provided that such right of correction by the Company shall only apply
to the first Notice of Termination for Good Reason given by the Executive).
(a) the assignment to the Executive of duties inconsistent in any material respect
with the Executives position (including status, offices, titles and reporting requirements),
authority or responsibilities in effect immediately prior to the earliest to occur of (i) the
Change in Control Date, (ii) the date of the execution by the Company of the initial written
agreement or instrument providing for the Change in Control or (iii) the date of the adoption by
the Board of Directors of a resolution providing for the Change in Control (with the earliest to
occur of such dates referred to herein as the Measurement Date) or a material diminution in such
position, authority or responsibilities;
(b) a reduction in the Executives annual base salary as in effect on the Measurement Date or
as the same was or may be increased thereafter from time to time;
(c) the failure by the Company to (i) continue in effect any material compensation or benefit
plan or program, including without limitation any life insurance, medical, health and accident or
disability plan and any vacation or automobile program or policy, in which the Executive
participates or which is applicable to the Executive immediately prior to the Measurement Date (a
Benefit Plan), unless an equitable arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan or program, (ii) continue the Executives
participation therein (or in such substitute or alternative plan) on a basis not materially less
favorable than the basis existing immediately prior to the Measurement Date (iii) award cash
bonuses to the Executive in amounts and in a manner substantially consistent with past practice in
light of the Companys financial performance or (iv) continue to provide any material fringe
benefit enjoyed by Executive immediately prior to the Measurement Date;
(d) a change by the Company in the location at which the Executive performs the Executives
principal duties for the Company to a new location that is both (i)
Page 3 of 11
outside a radius of 50 miles
from the Executives principal residence immediately prior to the Measurement Date and (ii) more
than 30 miles from the location at which the Executive performed the Executives principal duties
for the Company immediately prior to the Measurement Date; or a requirement by the Company that the
Executive travel on Company business to a substantially greater extent than required immediately
prior to the Measurement Date;
(e) the failure of the Company to obtain the agreement from any successor to the Company to
assume and agree to perform this Agreement, as required by Section 6.1;
(f) a purported termination of the Executives employment which is not effected pursuant
to a Notice of Termination satisfying the requirements of Section 3.2(a); or
(g) any failure of the Company to pay or provide to the Executive any portion of the
Executives compensation or benefits due under any Benefit Plan within seven days of the date such
compensation or benefits are due, or any material breach by the Company of this Agreement or any
employment agreement with the Executive.
The Executives right to terminate the Executives employment for Good Reason shall not be
affected by the Executives incapacity due to physical or mental illness.
1.5
Disability
means the Executives inability, due to a physical or mental
disability, for a period of 90 days, whether or not consecutive, during any 360-day period to
perform the Executives duties on behalf of the Company, with or without reasonable accommodation
as that term is defined under state or federal law. A determination of disability shall be made by
a physician satisfactory to both the Executive and the Company,
provided
that
if
the Executive and the Company do not agree on a physician, the Executive and the Company shall each
select a physician and these two together shall select a third physician, whose determination as to
disability shall be binding on all parties.
2.
Term of Agreement
. This Agreement, and all rights and obligations of the parties
hereunder, shall take effect upon the Effective Date and shall expire upon the first to occur of
(a) the expiration of the Term (as
defined below) if a Change in Control has not occurred during the Term, (b) the date 18 months
after the Change in Control Date, if the Executive is still employed by the Company as of such
later date, or (c) the fulfillment by the Company of all of its obligations under Sections 4 and
5.2 if the Executives employment with the Company terminates within 18 months following the Change
in Control Date. Term shall mean the period commencing as of the Effective Date and continuing
in effect through May 9, 2008.
3.
Employment Status; Termination Following Change in Control
.
3.1
Not an Employment Contract
. The Executive acknowledges that this Agreement does
not constitute a contract of employment or impose on the Company any obligation to retain the
Executive as an employee and that this Agreement does not prevent the Executive from terminating
employment at any time. If the Executives employment with the
Page 4 of 11
Company terminates for any reason
and subsequently a Change in Control shall occur, the Executive shall not be entitled to any
benefits hereunder except as otherwise provided pursuant to Section 1.2.
3.2
Termination of Employment
.
(a) If the Change in Control Date occurs during the Term, any termination of the Executives
employment by the Company or by the Executive within 18 months following the Change in Control Date
(other than due to the death of the Executive) shall be communicated by a written notice to the
other party hereto (the Notice of Termination), given in accordance with Section 7. Any Notice
of Termination shall: (i) indicate the specific termination provision (if any) of this Agreement
relied upon by the party giving such notice, (ii) to the extent applicable, set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of the Executives
employment under the provision so indicated and (iii) specify the Date of Termination (as defined
below). The effective date of an employment termination (the Date of Termination) shall be the
close of business on the date specified in the Notice of Termination (which date may not be less
than 15 days or more than 120 days after the date of delivery of such Notice of Termination), in
the case of a termination other than one due to the Executives death, or the date of the
Executives death, as the case may be. In the event the Company fails to satisfy the requirements
of Section 3.2(a) regarding a Notice of Termination, the purported termination of the Executives
employment pursuant to such Notice of Termination shall not be effective for purposes of this
Agreement.
(b) The failure by the Executive or the Company to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any
right of the Executive or the Company, respectively, hereunder or preclude the Executive or the
Company, respectively, from asserting any such fact or circumstance in enforcing the Executives or
the Companys rights hereunder.
(c) Any Notice of Termination for Cause given by the Company must be given within 90 days of
the occurrence of the event(s) or circumstance(s) which constitute(s) Cause. Prior to any Notice
of Termination for Cause being given (and prior to any termination for Cause being effective), the
Executive shall be entitled to a hearing before the Board at which the Executive may, at the
Executives election, be represented by counsel and at which the Executive shall have a reasonable
opportunity to be heard. Such hearing shall be held on not less than 15 days prior written notice
to the Executive stating the Boards intention to terminate the Executive for Cause and stating in
detail the particular event(s) or circumstance(s) which the Board believes constitutes Cause for
termination.
(d) Any Notice of Termination for Good Reason given by the Executive must be given within 90
days of the occurrence of the event(s) or circumstance(s) which constitute(s) Good Reason
.
Page 5 of 11
4.
Benefits to Executive
.
4.1
Compensation
. If the Change in Control Date occurs during the Term and the
Executives employment with the Company terminates within 18 months following the Change in Control
Date, the Executive shall be entitled to the following benefits:
(a)
Termination Without Cause or for Good Reason
. If the Executives employment with
the Company is terminated by the Company (other than for Cause, Disability or death) or by the
Executive for Good Reason within 18 months following the Change in Control Date, then the Executive
shall be entitled to the following benefits:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date
of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executives base salary through the Date of Termination, (B) the
product of (x) the annual bonus paid or payable (including any bonus or portion thereof which has
been earned but deferred) for the most recently completed fiscal year and (y) a fraction, the
numerator of which is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (C) the amount of any accrued vacation pay, to
the extent not previously paid (the sum of the amounts described in clauses (A), (B), and (C) shall
be hereinafter referred to as the Accrued Obligations); and
(2) the amount equal to (a) two multiplied by (b) the sum of (x) the Executives highest
annual base salary in any twelve-month period (on a rolling basis) during the five-year period
prior to the Change in Control Date and (y) the Executives highest annual bonus in any
twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control
Date.
(ii) for two years after the Date of Termination, or such longer period as may be provided by
the terms of the appropriate plan, program, practice or policy, the Company shall continue to
provide medical, dental and life insurance benefits to the Executive and the Executives family at
least equal to those which would have been provided to them if the Executives employment had not
been terminated, in accordance with the applicable medical, dental and life insurance Benefit Plans
in effect on the Measurement Date or, if more favorable to the Executive and the Executives
family, in effect generally at any time thereafter with respect to other peer executives of the
Company and its affiliated companies;
provided
,
however
, that (A) if the terms of a
medical, dental or life insurance Benefit Plan do not permit continued participation therein by a
former employee, then an equitable arrangement shall be made by the Company (such as a substitute
or alternative plan) to provide as substantially equivalent a benefit as is reasonably possible and
(B) if the Executive becomes reemployed with another employer and is eligible to receive a
particular type of benefits (e.g., medical insurance benefits) from such employer on terms at least
as favorable to the Executive and the Executives family as those being provided by the Company,
then the Company shall no longer be required to provide those particular benefits to the Executive
and the Executives family; and
Page 6 of 11
(iii) to the extent not previously paid or provided, the Company shall timely pay or
provide to the Executive any other amounts or benefits required to be paid or provided or which the
Executive is eligible to receive following the Executives termination of employment under any
plan, program, policy, practice, contract or agreement of the Company and its affiliated companies
(other than severance benefits) (such other amounts and benefits shall be hereinafter referred to
as the Other Benefits).
(b)
Resignation without Good Reason; Termination for Death or Disability
. If the
Executive voluntarily terminates the Executives employment with the Company within 18 months
following the Change in Control Date, excluding a termination for Good Reason, or if the
Executives employment with the Company is terminated by reason of the Executives death or
Disability within 18 months following the Change in Control Date, then the Company shall (i) pay
the Executive (or the Executives estate, if applicable), in a lump sum in cash within 30 days
after the Date of Termination, the Accrued Obligations and (ii) timely pay or provide to the
Executive the Other Benefits.
(c)
Termination for Cause
. If the Company terminates the Executives employment with
the Company for Cause within 18 months following the Change in Control Date, then the Company shall
(i) pay the Executive, in a lump sum in cash within 30 days after the Date of Termination, the
Executives annual base salary through the Date of Termination, and (ii) timely pay or provide to
the Executive the Other Benefits.
4.2
Taxes
.
(a) In the event that the Company undergoes a Change in Ownership or Control (as defined
below), and thereafter, the Executive becomes eligible to receive Contingent Compensation
Payments (as defined below) the Company shall, as soon as administratively feasible after the
Executive becomes so eligible determine and notify the Executive (with reasonable detail regarding
the basis for its determinations) (i) which of the payments or benefits due to the Executive
following such Change in Ownership or Control constitute Contingent Compensation Payments, (ii) the
amount, if any, of the excise tax (the Excise Tax) payable pursuant to Section 4999 of the
Internal Revenue Code of 1986, as amended (the Code), by the Executive with respect to such
Contingent Compensation Payment and (iii) the amount of the Gross-Up Payment (as defined below)
due to the Executive with respect to such Contingent Compensation Payment. Within 30 days after
delivery of such notice to the Executive, the Executive shall deliver a response to the Company
(the Executive Response) stating either (A) that he agrees with the Companys determination
pursuant to the preceding sentence or (B) that he disagrees with such determination, in which case
he shall indicate which payment and/or benefits should be characterized as a Contingent
Compensation Payment, the amount of the Excise Tax with respect to such Contingent Compensation
Payment and the amount of the Gross-Up Payment due to the Executive with respect to such Contingent
Compensation Payment. If the Executive states in the Executive Response that he agrees with the
Companys determination, the Company shall make the Gross-Up Payment to the Executive within three
business days following delivery to the Company of the Executive Response. If the Executive states
in the Executive Response that he disagrees with the Companys determination, then, for a period of
15 days following delivery of the Executive Response, the Executive and the
Page 7 of 11
Company shall use good
faith efforts to resolve such dispute. If such dispute is not resolved within such 15-day period,
such dispute shall be settled exclusively by arbitration in Boston, Massachusetts, in accordance
with the rules of the American Arbitration Association then in effect. Judgment may be entered on
the arbitrators award in any court having jurisdiction. The Company shall, within three business
days following delivery to the Company of the Executive Response, make to the Executive those
Gross-Up Payments as to which there is no dispute between the Company and the Executive regarding
whether they should be made. The balance of the Gross-Up Payments shall be made within three
business days following the resolution of such dispute. The amount of any payments to be made to
the Executive following the resolution of such dispute shall be increased by the amount of the
accrued interest thereon computed at the prime rate announced from time to time by The Wall Street
Journal compounded monthly from the date that such payments originally were due. In the event that
the Executive fails to deliver an Executive Response on or before the required date, the Companys
initial determination shall be final.
(b) For purposes of this Section 4.2, the following terms shall have the following respective
meanings:
(i) Change in Ownership or Control shall mean a change in the ownership or effective control
of the Company or in the ownership of a substantial portion of the assets of the Company determined
in accordance with Section 280G(b)(2) of the Code.
(ii) Contingent Compensation Payment shall mean any payment (or benefit) in the nature of
compensation that is made or supplied to a disqualified individual (as defined in Section 280G(c)
of the Code) and that is contingent (within the meaning of Section 280G(b)(2)(A)(i) of the Code) on
a Change in Ownership or Control of the Company.
(iii) Gross-Up Payment shall mean an amount equal to the sum of (i) the amount of the Excise
Tax payable with respect to a Contingent Compensation Payment and (ii) the amount necessary to pay
all additional taxes imposed on (or economically borne by) the Executive (including the Excise
Taxes, state and federal income taxes and all applicable withholding taxes) attributable to the
receipt of such
Gross-Up Payment. For purposes of the preceding sentence, all taxes attributable to the receipt of
the Gross-Up Payment shall be computed assuming the application of the maximum tax rates provided
by law.
4.3
Outplacement Services
. In the event the Executive is terminated by the Company
(other than for Cause, Disability or death), or the Executive terminates employment for Good
Reason, within 18 months following the Change in Control Date, the Company shall provide
outplacement services through one or more outside firms of the Executives choosing up to an
aggregate of $20,000, with such services to extend until the earlier of (i) 12 months following the
termination of the Executives employment or (ii) the date the Executive secures full time
employment.
4.4
Mitigation
. The Executive shall not be required to mitigate the amount of any
payment or benefits provided for in this Section 4 by seeking other employment or
Page 8 of 11
otherwise.
Further, except as provided in Section 4.1(a)(ii), the amount of any payment or benefits provided
for in this Section 4 shall not be reduced by any compensation earned by the Executive as a result
of employment by another employer, by retirement benefits, by offset against any amount claimed to
be owed by the Executive to the Company or otherwise.
4.5
Release of Claims by Executive
. The Executive shall not be entitled to any
payments or other benefits hereunder unless the Executive executes and, if applicable, does not
revoke, a full and complete release and separation agreement in the form to be provided by the
Company.
5.
Disputes
.
5.1
Settlement of Disputes; Arbitration
. All claims by the Executive for benefits
under this Agreement shall be directed to and determined by the Board and shall be in writing. Any
denial by the Board of Directors of a claim for benefits under this Agreement shall be delivered to
the Executive in writing and shall set forth the specific reasons for the denial. The Board shall
afford a reasonable opportunity to the Executive for a review of the decision denying a claim. Any
further dispute or controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration in Boston, Massachusetts, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the arbitrators award in any
court having jurisdiction.
5.2
Expenses
. The Company agrees to pay as incurred, to the full extent permitted by
law, all legal, accounting and other fees and expenses which the Executive may reasonably incur as
a result of any claim or contest (regardless of the outcome thereof) by the Company, the Executive
or others regarding the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any contest by the
Executive regarding the amount of any payment or benefits pursuant to this Agreement), plus in each
case interest on any delayed payment at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Code.
6.
Successors
.
6.1
Successor to Company
. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company expressly to assume and agree to perform this Agreement to the
same extent that the Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain an assumption of this Agreement at or prior to the effectiveness
of any succession shall be a breach of this Agreement and shall constitute Good Reason if the
Executive elects to terminate employment, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed the Date of Termination.
As used in this Agreement, Company shall mean the Company as defined above and any successor to
its business or assets as aforesaid which assumes and agrees to perform this Agreement, by
operation of law or otherwise.
Page 9 of 11
6.2
Successor to Executive
. This Agreement shall inure to the benefit of and be
enforceable by the Executives personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive or the Executives family hereunder if the Executive
had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the executors, personal
representatives or administrators of the Executives estate.
7.
Notice
. All notices, instructions and other communications given hereunder or in
connection herewith shall be in writing. Any such notice, instruction or communication shall be
sent either (i) by registered or certified mail, return receipt requested, postage prepaid, or (ii)
prepaid via a reputable nationwide overnight courier service, in each case addressed to the
Company, at 81 Wyman Street, Waltham, Massachusetts and to the Executive at the Executives
principal residence as currently reflected on the Companys records (or to such other address as
either the Company or the Executive may have furnished to the other in writing in accordance
herewith). Any such notice, instruction or communication shall be deemed to have been delivered
five business days after it is sent by registered or certified mail, return receipt requested,
postage prepaid, or one business day after it is sent via a reputable nationwide overnight courier
service. Either party may give any notice, instruction or other communication hereunder using any
other means, but no such notice, instruction or other communication shall be deemed to have been
duly delivered unless and until it actually is received by the party for whom it is intended.
8.
Miscellaneous
.
8.1
Severability
. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
8.2
Injunctive Relief
. The Company and the Executive agree that any breach of this
Agreement by the Company is likely to cause the Executive substantial and irrevocable damage and
therefore, in the event of any such breach, in addition to such other remedies which may be
available, the Executive shall have the right to specific performance and injunctive relief.
8.3
Governing Law
. The validity, interpretation, construction and performance of this
Agreement shall be governed by the internal laws of the Commonwealth of Massachusetts, without
regard to conflicts of law principles.
8.4
Waivers
. No waiver by the Executive at any time of any breach of, or compliance
with, any provision of this Agreement to be performed by the Company shall be deemed a waiver of
that or any other provision at any subsequent time.
8.5
Counterparts
. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original but both of which together shall constitute one and the same
instrument.
Page 10 of 11
8.6
Tax Withholding
. Any payments provided for hereunder shall be paid net of any
applicable tax withholding required under federal, state or local law.
8.7
Entire Agreement
. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto in respect of the subject
matter contained herein; and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and cancelled.
8.8
Amendments
. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day
and year first set forth above.
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THERMO FISHER SCIENTIFIC INC.
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EXECUTIVE
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Page 11 of 11
EXHIBIT 10.4
NONCOMPETITION AGREEMENT
THIS AGREEMENT, dated as
of November 9, 2006 is made by and between ___, an
individual residing at ___ (the
Employee
), and Thermo Fisher
Scientific Inc., a Delaware corporation whose principal offices are located at 81 Wyman Street,
Waltham, Massachusetts 02454 (
Employer
).
WHEREAS, Employer, including its subsidiaries and affiliates, is the world leader in the
manufacture, development and distribution of scientific and diagnostic instruments, equipment,
supplies, workstations and chemicals used by clinical and research laboratories, universities and
other life and health sciences customers, as well as diagnostic instruments, test materials and
related products for clinical laboratories; and teaching aids for science education. In addition,
Employer is a leading supplier of occupational health and safety products and maintenance, repair
and operating materials. Employer is also a pioneer in the development of electronic and internet
purchasing, marketing and distribution systems.
WHEREAS, Employer has developed and continues to develop and use certain trade secrets,
customer lists and other proprietary and confidential information and data, which Employer has
spent a substantial amount of time, effort and money, and will continue to do so in the future, to
develop or acquire such proprietary and confidential information and to promote and increase its
good will.
NOW, THEREFORE, in consideration of Employees continued employment by Employer or a
subsidiary or affiliate thereof, and Employees compensation, in particular additional valuable
consideration including, but not limited to the granting of certain stock options, which is
conditioned, at least in part, upon Employees execution and delivery of this Agreement, Employee
understands and agree to the following:
Section 1
. Employee recognizes and acknowledges that it is essential for the proper
protection of the Employers legitimate business interests that Employee be restrained for a
reasonable period following the termination of Employees employment with the Employer, either
voluntarily or involuntarily, from competing with Employer as set forth below.
Employee acknowledges and agrees that during the term of Employees employment with Employer,
and for a period of twelve (12) months thereafter, Employee will not, directly or indirectly,
engage, participate or invest in or be employed by any business within the Restricted Area, as
defined below, which: (i) develops or manufactures products which are competitive with or similar
to products developed or manufactured by Employer; (ii) distributes, markets or otherwise sells,
either through a direct sales force or through the use of the Internet, products manufactured by
others which are competitive with or similar to products distributed, marketed or sold by Employer;
or (iii) provide services, including the use of the Internet to sell, market or distribute
products, which are competitive with or similar to services provided by Employer, including, in
each case, any products or services Employer has under development or which are the subject of
active planning at any time during the term of Employees employment. The foregoing restrictions
shall apply regardless of the capacity in which Employee engages,
1
participates or invests in or is
employed by a given business, whether as owner, partner, shareholder, consultant, agent, employee,
co-venturer or otherwise.
Restricted Area shall mean each state and territory of the United States of America and each
country of the world outside of the United States of America in which Employer had developed,
marketed, sold and/or distributed its products and/or services within the last two (2) years of
Employees employment.
Section 2
. During the term of Employees employment with Employer and for a period of
twelve (12) months after termination of the Employees employment with the Employer for any reason,
Employee will not: (i) employ, hire, solicit, induce or identify for employment or attempt to
employ, hire, solicit, induce or identify for employment, directly or indirectly, any employee(s)
of the Employer to leave his or her employment and became an employee, consultant or representative
of any other entity including, but not limited to, Employees new employer, if any; and/or (ii)
solicit, aid in or encourage the solicitation of, contract with, aid in or encourage the
contracting
with, service, or contact any person or entity which is or was, within the two (2) years prior to
Employees termination of employment with Employer, a customer or client of Employer, for purposes
of marketing, offering or selling a product or service competitive with Employer.
Section 3
. For the period of twelve (12) months immediately following the end of
Employees employment by Employer, Employee will inform each new employer, prior to accepting
employment, of the existence of this Agreement and provide that employer with a copy of this
Agreement.
Section 4
. Employee understands and agrees that the provisions of this section shall
not prevent Employee from acquiring or holding publicly traded stock or other publicly traded
securities of a business, so long as Employees ownership does not exceed 1% percent of the
outstanding securities of such company of the same class as those held by Employee or from engaging
in any activity or having an ownership interest in any business that is reviewed by the Board of
Directors of Employer.
Section 5
. Employee acknowledges that the time, geographic and scope of activity
limitations set forth herein are reasonable and necessary to protect the Employers legitimate
business interests. However, if in any judicial proceeding a court refuses to enforce this
Agreement, whether because the time limitation is too long or because the restrictions contained
herein are more extensive (whether as to geographic area, scope of activity or otherwise) than is
necessary to protect the legitimate business interests of Employer, it is expressly understood and
agreed between the parties hereto that this Agreement is deemed modified to the extent necessary to
permit this Agreement to be enforced in any such proceedings.
Section 6
. Employee further acknowledges and agrees that it would be difficult to
measure any damages caused to Employer which might result from any breach by Employee of any 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, Employee acknowledges and agrees that if he or she
breaches or threatens to breach, any portion of this Agreement, Employer shall
2
be entitled, in
addition to all other remedies that it may have: (i) to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving any actual damage to
Employer; and (ii) to be relieved of any obligation to provide any further payment or benefits to
Employee or Employees dependents.
Section 7
. Employee acknowledges and agrees that should it become necessary for
Employer to file suit to enforce the covenants contained herein, and any court of competent
jurisdiction awards the Employer any damages and/or an injunction due to the acts of Employee, then
the Employer shall be entitled to recover its reasonable costs incurred in conducting the suit
including, but not limited, reasonable attorneys fees and expenses.
Section 8.
The Employee acknowledges and agrees that this Agreement does not
constitute a contract of employment and does not imply that Employer or any of its subsidiaries
will continue the Employees employment for any period of time.
Section 9.
This Agreement represents the entire understanding of the parties with
respect to the subject matter hereof and any previous agreements or understandings between the
parties regarding the subject matter hereof are merged into and superseded by this Agreement.
Section 10.
This Agreement cannot be modified, amended or changed, nor may compliance
with any provision hereof be waived, except by an instrument in writing executed by the party
against whom enforcement of such modification, amendment, change or waiver is sought. Any waiver
by a party of the breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict compliance with any provision of this
Agreement at any time shall not deprive such party of the right to insist upon strict compliance
with such provision at any other time or of the right to insist upon strict compliance with any
other provision hereof at any time.
Section 11.
All notices, requests, demands, consents and other communications which
are required or permitted hereunder shall be in writing, and shall be deemed given when actually
received or if earlier, two days
after deposit with the U.S. postal authorities, certified or registered mail, return receipt
requested, postage prepaid or two days after deposit with an internationally recognized air courier
or express mail, charges prepaid, addressed as follows:
If to Employer:
Thermo Fisher Scientific Inc.
81 Wyman Street
Waltham, Massachusetts 02454
Attention: General Counsel
If to the Employee, at the address set forth above, or to such other address as any party
hereto may designate in writing to the other party, specifying a change of address for the purpose
of this Agreement.
3
Section 12.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
Section 13.
This Agreement shall be construed and interpreted in accordance with, and
shall be governed exclusively by, the laws of the Commonwealth of Massachusetts and the federal
laws of the United States of America. In the event litigation is maintained by a party to this
Agreement against any other party to enforce this Agreement or to seek any remedy for breach, then
each party hereto shall be responsible for such partys own attorneys fees and costs of suit.
Section 14.
THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS CAREFULLY READ THIS
AGREEMENT AND HAS HAD ADEQUATE TIME AND OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF THE EMPLOYEES
OWN CHOOSING REGARDING THE MEANING OF THE TERMS AND CONDITIONS CONTAINED HEREIN, AND THE EMPLOYEE
FURTHER ACKNOWLEDGES THAT THE EMPLOYEE FULLY UNDERSTANDS THE CONTENT AND EFFECT OF THIS AGREEMENT
AND AGREES TO ALL OF THE PROVISIONS CONTAINED HEREIN.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
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EMPLOYEE:
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THERMO FISHER SCIENTIFIC INC.
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By:
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[Insert Name]
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Name:
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Title:
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4
EXHIBIT 10.5
NONCOMPETITION AGREEMENT
THIS AGREEMENT, dated as of November 9, 2006 is made by and between Marc N. Casper, an
individual residing at 144 Clark Road, Brookline, MA 02445 (the
Employee
), and Thermo
Fisher Scientific Inc., a Delaware corporation whose principal offices are located at 81 Wyman
Street, Waltham, Massachusetts 02454 (
Employer
).
WHEREAS, Employer, including its subsidiaries and affiliates, is the world leader in the
manufacture, development and distribution of scientific and diagnostic instruments, equipment,
supplies, workstations and chemicals used by clinical and research laboratories, universities and
other life and health sciences customers, as well as diagnostic instruments, test materials and
related products for clinical laboratories; and teaching aids for science education. In addition,
Employer is a leading supplier of occupational health and safety products and maintenance, repair
and operating materials. Employer is also a pioneer in the development of electronic and internet
purchasing, marketing and distribution systems.
WHEREAS, Employer has developed and continues to develop and use certain trade secrets,
customer lists and other proprietary and confidential information and data, which Employer has
spent a substantial amount of time, effort and money, and will continue to do so in the future, to
develop or acquire such proprietary and confidential information and to promote and increase its
good will.
NOW, THEREFORE, in consideration of Employees continued employment by Employer or a
subsidiary or affiliate thereof, and Employees compensation, in particular additional valuable
consideration including, but not limited to the items listed on Exhibit A attached hereto, the
receipt of which is conditioned, at least in part, upon Employees execution and delivery of this
Agreement, Employee understands and agree to the following:
Section 1
. Employee recognizes and acknowledges that it is essential for the proper
protection of the Employers legitimate business interests that Employee be restrained for a
reasonable period following the termination of Employees employment with the Employer, either
voluntarily or involuntarily, from competing with Employer as set forth below.
Employee acknowledges and agrees that during the term of Employees employment with Employer,
and for a period of twelve (12) months thereafter, Employee will not, directly or indirectly,
engage, participate or invest in or be employed by any of the companies listed on Exhibit B
attached hereto within the Restricted Area, as defined below, all of which are deemed by the
Employer and the Employee to be competitors of the Employer. The foregoing restrictions shall apply
regardless of the capacity in which Employee engages, participates or invests in or is employed by
a given business, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer
or otherwise. In the event that after the date hereof any of the companies listed on Exhibit B is
acquired by or is merged with a company not listed on Exhibit B, thenExhibit B shall be deemed to
be amended to include the name of the acquirer or the successor to the listed company. After the
date hereof, Employer may amend Exhibit B by written notice to Employee delivered within thirty
(30) days following Employers acquisition of a company after the date hereof, to add a competitor
of such acquired company, and provided
1
that such competitor has annual revenues at that time of at least $300 million. The previous
sentence notwithstanding, in the event that after the date hereof, the Employer is acquired by a
third party, the right of the Employer or its successor to add competitors to Exhibit B pursuant to
the previous sentence shall terminate upon the closing of the acquisition of Employer.
Restricted Area shall mean each state and territory of the United States of America and each
country of the world outside of the United States of America in which Employer had developed,
marketed, sold and/or distributed its products and/or services within the last two (2) years of
Employees employment.
Section 2
. During the term of Employees employment with Employer and for a period of
twelve (12) months after termination of the Employees employment with the Employer for any reason,
Employee will not: (i) employ, hire, solicit, induce or identify for employment or attempt to
employ, hire, solicit, induce or identify for employment, any employee(s) of the Employer to leave
his or her employment and become an employee, consultant or representative of any other entity
including, but not limited to, Employees new employer, if any; and/or (ii) on behalf of any of the
companies listed on Exhibit B attached hereto, solicit, aid in or encourage the solicitation of,
contract with, aid in or encourage the contracting with, service, or contact any person or entity
which is or was, within the two (2) years prior to Employees termination of employment with
Employer, a customer or client of Employer, for purposes of marketing, offering or selling a
product or service competitive with Employer.
Section 3
. For the period of twelve (12) months immediately following the end of
Employees employment by Employer, Employee will inform each new employer, prior to accepting
employment, of the existence of this Agreement and provide that employer with a copy of this
Agreement.
Section 4
. Employee understands and agrees that the provisions of this section shall
not prevent Employee from acquiring or holding publicly traded stock or other publicly traded
securities of a business, so long as Employees ownership does not exceed 1% percent of the
outstanding securities of such company of the same class as those held by Employee or from engaging
in any activity or having an ownership interest in any business that is reviewed by the Board of
Directors of Employer.
Section 5
. Employee acknowledges that the time, geographic and scope of activity
limitations set forth herein are reasonable and necessary to protect the Employers legitimate
business interests. However, if in any judicial proceeding a court refuses to enforce this
Agreement, whether because the time limitation is too long or because the restrictions contained
herein are more extensive (whether as to geographic area, scope of activity or otherwise) than is
necessary to protect the legitimate business interests of Employer, it is expressly understood and
agreed between the parties hereto that this Agreement is deemed modified to the extent necessary to
permit this Agreement to be enforced in any such proceedings.
Section 6
. Employee further acknowledges and agrees that it would be difficult to
measure any damages caused to Employer which might result from any breach by Employee of
2
any 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, Employee acknowledges and agrees that if he or
she breaches or threatens to breach, any portion of this Agreement, Employer shall be entitled, in
addition to all other remedies that it may have: (i) to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving any actual damage to
Employer; and (ii) if Employee fails substantially to cure such breach within thirty (30) days
following Executives receipt of written notice thereof from Employer, and if a final,
non-appealable order is entered by a court of competent jurisdiction holding Employee liable for a
breach of a material portion of this Agreement, to be relieved of any obligation to provide any
further payment or benefits to Employee or Employees dependents.
Section 7
. The parties acknowledge and agree that should it become necessary for
either party to file suit to enforce the covenants contained herein, the prevailing party in such
suit shall be entitled to recover his or its reasonable costs incurred in conducting the suit
including, but not limited, to reasonable attorneys fees and expenses.
Section 8.
The Employee acknowledges and agrees that this Agreement does not
constitute a contract of employment and does not imply that Employer or any of its subsidiaries
will continue the Employees employment for any period of time.
Section 9.
This Agreement represents the entire understanding of the parties with
respect to the subject matter hereof and any previous agreements or understandings between the
parties regarding the subject matter hereof are merged into and superseded by this Agreement.
Section 10.
This Agreement cannot be modified, amended or changed, nor may compliance
with any provision hereof be waived, except by an instrument in writing executed by the party
against whom enforcement of such modification, amendment, change or waiver is sought. Any waiver
by a party of the breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict compliance with any provision of this
Agreement at any time shall not deprive such party of the right to insist upon strict compliance
with such provision at any other time or of the right to insist upon strict compliance with any
other provision hereof at any time.
Section 11.
All notices, requests, demands, consents and other communications which
are required or permitted hereunder shall be in writing, and shall be deemed given when actually
received or if earlier, two days after deposit with the U.S. postal authorities, certified or
registered mail, return receipt requested, postage prepaid or two days after deposit with an
internationally recognized air courier or express mail, charges prepaid, addressed as follows:
If to Employer:
Thermo Fisher Scientific Inc.
81 Wyman Street
Waltham, Massachusetts 02454
Attention: General Counsel
3
If to the Employee, at the address set forth above, with a copy to:
Funkhouser Vegosen Liebman & Dunn Ltd.
55 West Monroe Street, Suite 2300
Chicago, Illinois 60603
Attention: James F. Groth
or to such other address as any party hereto may designate in writing to the other party,
specifying a change of address for the purpose of this Agreement.
Section 12.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
Section 13.
This Agreement shall be construed and interpreted in accordance with, and
shall be governed exclusively by, the laws of the Commonwealth of Massachusetts and the federal
laws of the United States of America.
Section 14.
This Agreement shall become null and void in the event that the Executive
Severance Agreement between the Employer and Employee dated November 19, 2003, as amended by
Amendment No. 1 dated November 9, 2006, is not renewed on its expiration date on terms at least as
favorable to Employee as currently provided in such agreement.
Section 15
. The Employer shall reimburse the Employee for legal fees incurred in the
negotiation and preparation of this Agreement and the other amendments and agreements being
executed contemporaneously herewith.
Section 16.
THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS CAREFULLY READ THIS
AGREEMENT AND HAS HAD ADEQUATE TIME AND OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF THE EMPLOYEES
OWN CHOOSING REGARDING THE MEANING OF THE TERMS AND CONDITIONS CONTAINED HEREIN, AND THE EMPLOYEE
FURTHER ACKNOWLEDGES THAT THE EMPLOYEE FULLY UNDERSTANDS THE CONTENT AND EFFECT OF THIS AGREEMENT
AND AGREES TO ALL OF THE PROVISIONS CONTAINED HEREIN.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
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EMPLOYEE:
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THERMO FISHER SCIENTIFIC INC.
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/s/
Marc N. Casper
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By:
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/s/ Steve Sheehan
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Marc N. Casper
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Name: Steve Sheehan
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Title: Senior Vice President, Human Resources
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EXHIBIT A
(1)
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Founders Stock Option Grant
. Employee shall receive nonqualified stock options to
purchase 251,900 shares of Thermo Fisher Scientific Inc. Common Stock pursuant to the Thermo
Fisher Scientific Inc. 2005 Equity Incentive Plan, as amended and restated on November 9,
2006, on the terms set forth in the Stock Option Agreement attached hereto as Exhibit A-1.
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(2)
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Restricted Stock Award
. Employee shall receive an award of 21,600 restricted shares
of Thermo Fisher Scientific Inc. Common Stock pursuant to the Thermo Fisher Scientific Inc.
2005 Equity Incentive Plan, as amended and restated on November 9, 2006, on the terms set
forth in the Restricted Stock Agreement attached hereto as Exhibit A-2.
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(3)
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Performance Restricted Stock Award
. Employee shall receive an award of 21,600
performance restricted shares of Thermo Fisher Scientific Inc. Common Stock pursuant to the
Thermo Fisher Scientific Inc. 2005 Equity Incentive Plan, as amended and restated on November
9, 2006, on the terms set forth in the Performance Restricted Stock Agreement attached hereto
as Exhibit A-3.
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(4)
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Amendment to Executive Severance Agreement
. Employer and Employee agree to amend the
Employees Executive Severance Agreement dated November 19, 2003 to provide that if the
Employees service with Employer is terminated without cause (as that term is defined in the
Executive Severance Agreement), Employee shall be entitled to receive a lump sum payment equal
to two times Employees annual salary and target bonus as of the date of the termination of
Employees service. Attached hereto as Exhibit A-4 is Amendment No. 1 to Employees Executive
Severance Agreement.
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(5)
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Term Life Insurance Policy
. Employer shall use its commercial best efforts to obtain
a term life insurance policy on the life of Employee providing for a death benefit of at least
$3,000,000 payable to a beneficiary or beneficiaries designated by the Employee. The premiums
for such policy will be paid by the Employer for so long as Employee serves as an employee,
officer, director or consultant of Employer or any of its subsidiaries. Upon the termination
of Employees service, Employer agrees to transfer the policy to a party designated by
Employee, subject to applicable laws or regulations.
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EXHIBIT B
List of Competitors
Agilent Technologies, Inc.
Applera Corp. / Applied Bio
Becton Dickinson & Co.
Bio Rad Labs, Inc.
Brucker Biosciences Corp.
Invitrogen Corp.
Millipore Corp.
Mettler Toledo International
Perkin Elmer, Inc.
Qiagen N V
Sigma Aldrich Corp.
VWR
Varian, Inc.
Waters Corp.
6
EXHIBIT 10.6
NONCOMPETITION AGREEMENT
THIS AGREEMENT, dated as of November 9, 2006 is made by and between Guy Broadbent, an
individual residing at 37 Lettery Circle, Sudbury, MA 01776 (the
Employee
), and Thermo
Fisher Scientific Inc., a Delaware corporation whose principal offices are located at 81 Wyman
Street, Waltham, Massachusetts 02454 (
Employer
).
WHEREAS, Employer, including its subsidiaries and affiliates, is the world leader in the
manufacture, development and distribution of scientific and diagnostic instruments, equipment,
supplies, workstations and chemicals used by clinical and research laboratories, universities and
other life and health sciences customers, as well as diagnostic instruments, test materials and
related products for clinical laboratories; and teaching aids for science education. In addition,
Employer is a leading supplier of occupational health and safety products and maintenance, repair
and operating materials. Employer is also a pioneer in the development of electronic and internet
purchasing, marketing and distribution systems.
WHEREAS, Employer has developed and continues to develop and use certain trade secrets,
customer lists and other proprietary and confidential information and data, which Employer has
spent a substantial amount of time, effort and money, and will continue to do so in the future, to
develop or acquire such proprietary and confidential information and to promote and increase its
good will.
NOW, THEREFORE, in consideration of Employees continued employment by Employer or a
subsidiary or affiliate thereof, and Employees compensation, in particular additional valuable
consideration including, but not limited to the items listed on Exhibit A attached hereto, the
receipt of which is conditioned, at least in part, upon Employees execution and delivery of this
Agreement, Employee understands and agree to the following:
Section 1
. Employee recognizes and acknowledges that it is essential for the proper
protection of the Employers legitimate business interests that Employee be restrained for a
reasonable period following the termination of Employees employment with the Employer, either
voluntarily or involuntarily, from competing with Employer as set forth below.
Employee acknowledges and agrees that during the term of Employees employment with Employer,
and for a period of twelve (12) months thereafter, Employee will not, directly or indirectly,
engage, participate or invest in or be employed by any of the companies listed on Exhibit B
attached hereto within the Restricted Area, as defined below, all of which are deemed by the
Employer and the Employee to be competitors of the Employer. The foregoing restrictions shall apply
regardless of the capacity in which Employee engages, participates or invests in or is employed by
a given business, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer
or otherwise. In the event that after the date hereof any of the companies listed on Exhibit B is
acquired by or is merged with a company not listed on Exhibit B, thenExhibit B shall be deemed to
be amended to include the name of the acquirer or the successor to the listed company. After the
date hereof, Employer may amend Exhibit B by written notice to Employee delivered within thirty
(30) days following Employers acquisition of a company after the date hereof, to add a competitor
of such acquired company, and provided
1
that such competitor has annual revenues at that time of at least $300 million. The previous
sentence notwithstanding, in the event that after the date hereof, the Employer is acquired by a
third party, the right of the Employer or its successor to add competitors to Exhibit B pursuant to
the previous sentence shall terminate upon the closing of the acquisition of Employer.
Restricted Area shall mean each state and territory of the United States of America and each
country of the world outside of the United States of America in which Employer had developed,
marketed, sold and/or distributed its products and/or services within the last two (2) years of
Employees employment.
Section 2
. During the term of Employees employment with Employer and for a period of
twelve (12) months after termination of the Employees employment with the Employer for any reason,
Employee will not: (i) employ, hire, solicit, induce or identify for employment or attempt to
employ, hire, solicit, induce or identify for employment, any employee(s) of the Employer to leave
his or her employment and become an employee, consultant or representative of any other entity
including, but not limited to, Employees new employer, if any; and/or (ii) on behalf of any of the
companies listed on Exhibit B attached hereto, solicit, aid in or encourage the solicitation of,
contract with, aid in or encourage the contracting with, service, or contact any person or entity
which is or was, within the two (2) years prior to Employees termination of employment with
Employer, a customer or client of Employer, for purposes of marketing, offering or selling a
product or service competitive with Employer.
Section 3
. For the period of twelve (12) months immediately following the end of
Employees employment by Employer, Employee will inform each new employer, prior to accepting
employment, of the existence of this Agreement and provide that employer with a copy of this
Agreement.
Section 4
. Employee understands and agrees that the provisions of this section shall
not prevent Employee from acquiring or holding publicly traded stock or other publicly traded
securities of a business, so long as Employees ownership does not exceed 1% percent of the
outstanding securities of such company of the same class as those held by Employee or from engaging
in any activity or having an ownership interest in any business that is reviewed by the Board of
Directors of Employer.
Section 5
. Employee acknowledges that the time, geographic and scope of activity
limitations set forth herein are reasonable and necessary to protect the Employers legitimate
business interests. However, if in any judicial proceeding a court refuses to enforce this
Agreement, whether because the time limitation is too long or because the restrictions contained
herein are more extensive (whether as to geographic area, scope of activity or otherwise) than is
necessary to protect the legitimate business interests of Employer, it is expressly understood and
agreed between the parties hereto that this Agreement is deemed modified to the extent necessary to
permit this Agreement to be enforced in any such proceedings.
Section 6
. Employee further acknowledges and agrees that it would be difficult to
measure any damages caused to Employer which might result from any breach by Employee of
2
any 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, Employee acknowledges and agrees that if he or
she breaches or threatens to breach, any portion of this Agreement, Employer shall be entitled, in
addition to all other remedies that it may have: (i) to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving any actual damage to
Employer; and (ii) if Employee fails substantially to cure such breach within thirty (30) days
following Executives receipt of written notice thereof from Employer, and if a final,
non-appealable order is entered by a court of competent jurisdiction holding Employee liable for a
breach of a material portion of this Agreement, to be relieved of any obligation to provide any
further payment or benefits to Employee or Employees dependents.
Section 7
. The parties acknowledge and agree that should it become necessary for
either party to file suit to enforce the covenants contained herein, the prevailing party in such
suit shall be entitled to recover his or its reasonable costs incurred in conducting the suit
including, but not limited, to reasonable attorneys fees and expenses.
Section 8.
The Employee acknowledges and agrees that this Agreement does not
constitute a contract of employment and does not imply that Employer or any of its subsidiaries
will continue the Employees employment for any period of time.
Section 9.
This Agreement represents the entire understanding of the parties with
respect to the subject matter hereof and any previous agreements or understandings between the
parties regarding the subject matter hereof are merged into and superseded by this Agreement.
Section 10.
This Agreement cannot be modified, amended or changed, nor may compliance
with any provision hereof be waived, except by an instrument in writing executed by the party
against whom enforcement of such modification, amendment, change or waiver is sought. Any waiver
by a party of the breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict compliance with any provision of this
Agreement at any time shall not deprive such party of the right to insist upon strict compliance
with such provision at any other time or of the right to insist upon strict compliance with any
other provision hereof at any time.
Section 11.
All notices, requests, demands, consents and other communications which
are required or permitted hereunder shall be in writing, and shall be deemed given when actually
received or if earlier, two days after deposit with the U.S. postal authorities, certified or
registered mail, return receipt requested, postage prepaid or two days after deposit with an
internationally recognized air courier or express mail, charges prepaid, addressed as follows:
If to Employer:
Thermo Fisher Scientific Inc.
81 Wyman Street
Waltham, Massachusetts 02454
Attention: General Counsel
3
If to the Employee, at the address set forth above or to such other address as any party
hereto may designate in writing to the other party, specifying a change of address for the purpose
of this Agreement.
Section 12.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
Section 13.
This Agreement shall be construed and interpreted in accordance with, and
shall be governed exclusively by, the laws of the Commonwealth of Massachusetts and the federal
laws of the United States of America.
Section 14.
This Agreement shall become null and void in the event that the Executive
Severance Agreement between the Employer and Employee dated November 19, 2003, as amended by
Amendment No. 1 dated November 9, 2006, is not renewed on its expiration date on terms at least as
favorable to Employee as currently provided in such agreement.
Section 15
. The Employer shall reimburse the Employee for legal fees incurred in the
negotiation and preparation of this Agreement and the other amendments and agreements being
executed contemporaneously herewith.
Section 16.
THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS CAREFULLY READ THIS
AGREEMENT AND HAS HAD ADEQUATE TIME AND OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF THE EMPLOYEES
OWN CHOOSING REGARDING THE MEANING OF THE TERMS AND CONDITIONS CONTAINED HEREIN, AND THE EMPLOYEE
FURTHER ACKNOWLEDGES THAT THE EMPLOYEE FULLY UNDERSTANDS THE CONTENT AND EFFECT OF THIS AGREEMENT
AND AGREES TO ALL OF THE PROVISIONS CONTAINED HEREIN.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
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EMPLOYEE:
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THERMO FISHER SCIENTIFIC INC.
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/s/
Guy Broadbent
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By:
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/s/ Steve Sheehan
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Guy Broadbent
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Name: Steve Sheehan
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Title: Senior Vice President, Human Resources
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4
EXHIBIT A
(1)
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Founders Stock Option Grant
. Employee shall receive nonqualified stock options to
purchase 151,400 shares of Thermo Fisher Scientific Inc. Common Stock pursuant to the Thermo
Fisher Scientific Inc. 2005 Equity Incentive Plan, as amended and restated on November 9,
2006, on the terms set forth in the Stock Option Agreement attached hereto as Exhibit A-1.
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(2)
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Restricted Stock Award
. Employee shall receive an award of 13,000 restricted shares
of Thermo Fisher Scientific Inc. Common Stock pursuant to the Thermo Fisher Scientific Inc.
2005 Equity Incentive Plan, as amended and restated on November 9, 2006, on the terms set
forth in the Restricted Stock Agreement attached hereto as Exhibit A-2.
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(3)
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Performance Restricted Stock Award
. Employee shall receive an award of 13,000
performance restricted shares of Thermo Fisher Scientific Inc. Common Stock pursuant to the
Thermo Fisher Scientific Inc. 2005 Equity Incentive Plan, as amended and restated on November
9, 2006, on the terms set forth in the Performance Restricted Stock Agreement attached hereto
as Exhibit A-3.
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(4)
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Amendment to Executive Severance Agreement
. Employer and Employee agree to amend the
Employees Executive Severance Agreement dated November 19, 2003 to provide that if the
Employees service with Employer is terminated without cause (as that term is defined in the
Executive Severance Agreement), Employee shall be entitled to receive a lump sum payment equal
to two times Employees annual salary and target bonus as of the date of the termination of
Employees service. Attached hereto as Exhibit A-4 is Amendment No. 1 to Employees Executive
Severance Agreement.
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(5)
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Term Life Insurance Policy
. Employer shall use its commercial best efforts to obtain
a term life insurance policy on the life of Employee providing for a death benefit of at least
$3,000,000 payable to a beneficiary or beneficiaries designated by the Employee. The premiums
for such policy will be paid by the Employer for so long as Employee serves as an employee,
officer, director or consultant of Employer or any of its subsidiaries. Upon the termination
of Employees service, Employer agrees to transfer the policy to a party designated by
Employee, subject to applicable laws or regulations.
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EXHIBIT B
List of Competitors
Agilent Technologies, Inc.
Applera Corp. / Applied Bio
Becton Dickinson & Co.
Bio Rad Labs, Inc.
Brucker Biosciences Corp.
Invitrogen Corp.
Millipore Corp.
Mettler Toledo International
Perkin Elmer, Inc.
Qiagen N V
Sigma Aldrich Corp.
VWR
Varian, Inc.
Waters Corp.
6
EXHIBIT 10.7
AMENDMENT NO. 1 TO
EXECUTIVE SEVERANCE AGREEMENT
This AMENDMENT NO. 1 (the Amendment) to the Executive Severance Agreement dated November 19,
2003 (the Agreement) by and between THERMO ELECTRON CORPORATION, a Delaware corporation (the
Company), and Marc N. Casper (the Executive) is made this 9th day of November, 2006 by and
between the Company and the Executive. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Agreement.
WHEREAS, the Company and the Executive have entered into the Agreement for the purpose of
describing the severance benefits that the Executive would receive in the event that Executives
employment with the Company is terminated under certain circumstances;
WHEREAS, on November 9, 2006, the Company completed a merger with Fisher Scientific
International Inc. (the Merger), pursuant to which, among other things, the Company changed its
name to Thermo Fisher Scientific Inc.;
WHEREAS, in connection with the Merger, the Company is making grants of options and restricted
shares to its executives and as a condition of such grants, the Company is requiring that the
executives sign a noncompetition agreement; and
WHEREAS, the Company and the Executive have agreed to amend the Agreement in connection with
Executives execution of the noncompetition agreement between the Company and the Executive of even
date herewith;
NOW, THEREFORE, in consideration for the mutual promises contained herein, the parties hereby
agree as follows.
1.
Amendments to Agreement
.
(a) All references to Thermo Electron Corporation in the Agreement are hereby amended to
read Thermo Fisher Scientific Inc.
(b) Section 1 of the Agreement is hereby amended to add a new sub-section 1.4 to be and read
as follows:
1.4
Good Reason
means the occurrence, without the Executives written consent, of
any of the events or circumstances set forth in clauses (a) through (f) below. Notwithstanding the
occurrence of any such event or circumstance, such occurrence shall not be deemed to constitute
Good Reason if, prior to the effective date of termination (which shall be not less than 15 days
following delivery of written notice of termination by Executive to the Company), such event or
circumstance has been fully corrected and the Executive has been reasonably compensated for any
losses or damages resulting therefrom.
Page 1 of 5
(a) the assignment to the Executive of duties inconsistent in any material respect with the
Executives position (including status, offices, titles and reporting requirements), authority or
responsibilities in effect as of the date of this Agreement or a material diminution in such
position, authority or responsibilities;
(b) a reduction in the Executives annual base salary as in effect on the date of
this Agreement or as the same was or may be increased hereafter from time to time;
(c) the failure by the Company to (i) continue in effect any material compensation or benefit
plan or program, including without limitation any life insurance, medical, health and accident or
disability plan and any vacation program or policy, in which the Executive participates or which is
applicable to the Executive (a Benefit Plan), unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan or program, (ii)
continue the Executives participation therein (or in such substitute or alternative plan) on a
basis not materially less favorable than the basis previously existing (iii) award cash bonuses to
the Executive in amounts and in a manner substantially consistent with past practice in light of
the Companys financial performance and Executives performance or (iv) continue to provide any
material fringe benefit previously enjoyed by Executive;
(d) a change by the Company in the location at which the Executive performs the Executives
principal duties for the Company to a new location that is both (i) outside a radius of 50 miles
from the Executives principal residence and (ii) more than 30 miles from the location at which the
Executive performed the Executives principal duties for the Company immediately prior to the date
of this Agreement; or a requirement by the Company that the Executive travel on Company business to
a substantially greater extent than required immediately prior to the date of this Agreement;
(e) the failure of the Company to obtain the agreement from any successor to the Company to
assume and agree to perform this Agreement, as required by Section 6.1; and
(f) any failure of the Company to pay or provide to the Executive any portion of the
Executives compensation or benefits due under any Benefit Plan within seven days of the date such
compensation or benefits are due (provided, however, that in the case of benefits, the Company
shall have a period of 30 days after receipt of notice from Executive to cure any default), or any
material breach by the Company of this Agreement or any employment agreement with the Executive.
The Executives right to terminate the Executives employment for Good Reason shall not be
affected by the Executives incapacity due to physical or mental illness.
(c) Section 2 of the Agreement is hereby amended and restated in its entirety as follows:
Page 2 of 5
2.
Term of Agreement
. This Agreement, and all rights and obligations of the parties
hereunder, shall take effect upon the Effective Date and shall expire upon the first to occur of
(a) the expiration of the Term (as defined below) or (b) the fulfillment by the Company of all of
its obligations under Sections 4 and 6.2 if the Executives employment with the Company terminates
prior to the expiration of the Term. Term shall mean the period commencing as of the Effective
Date and continuing in effect through November 9, 2011;
provided
,
however
, that on
November 9, 2011 and each November 9 thereafter, the Term shall be automatically extended for one
additional year unless, not later than six months prior to the scheduled expiration of the Term
(including any extension) thereof, the Company shall have given the Executive written notice that
the Term will not be extended.
(d) The initial clause of Section 4.1(a) of the Agreement is hereby amended and restated in
its entirety as follows:
(a)
Termination Without Cause or for Good Reason
. If the Executives employment with
the Company is terminated by the Company (other than for Cause, Disability or death) or by the
Executive for Good Reason, then the Executive shall be entitled to the following benefits:
(e) Section 4.1(a)(i) of the Agreement is hereby amended and restated in its entirety as
follows:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the
date of termination the aggregate of the following amounts:
(1) the sum of (A) the Executives base salary through the date of termination, (B) the
product of (x) the annual bonus paid or payable (including any bonus or portion thereof which has
been earned but deferred) for the most recently completed fiscal year and (y) a fraction, the
numerator of which is the number of days in the current fiscal year through the date of
termination, and the denominator of which is 365 and (C) the amount of any accrued vacation pay, to
the extent not previously paid (the sum of the amounts described in clauses (A), (B), and (C) shall
be hereinafter referred to as the Accrued Obligations); and
(2) the sum of (A) two (2) times the Executives annual base salary and target bonus as in
effect immediately prior to the date of termination, and (B) the amount of any accrued vacation
pay, to the extent not previously paid; and
(f) The reference to 18 months in Section 4.1(a)(ii) is hereby amended to read 24 months.
(g) Section 4.1(b) of the Agreement is hereby amended and restated in its entirety as follows:
(b)
Termination for Cause, Disability or Death
. If the Company terminates the
Executives employment with the Company for Cause, then the Company shall (i) pay the Executive in
a lump sum in cash within 30 days after the date of termination, the Executives
Page 3 of 5
base salary through the date of termination and (ii) timely pay or provide to the Executive
the Other Benefits. If the Company terminates the Executives employment with the Company because
of the Executives disability or the Executives death, then the Company shall (i) pay the
Executive or the Executives estate, in a lump sum in cash within 30 days after the date of
termination, the Accrued Obligations and (ii) timely pay or provide to the Executive the Other
Benefits.
(h) Section 4.4 of the Agreement is hereby amended and restated in its entirety as follows:
4.4.
Release of Claims by Executive
. The Executive shall not be entitled to any
payments or other benefits hereunder unless the Executive executes and, if applicable, does not
revoke, a full and complete release of claims and a reasonable and customary separation agreement
that includes nondisparagement and cooperation provisions. The parties further agree that the
separation agreement shall not include any restrictive covenants that are in addition to those
already contained in the Noncompetition Agreement between the Company and Executive dated November
9, 2006.
2.
Miscellaneous
.
(a)
No Other Amendments
. Except as specifically provided in this Amendment, no other
amendments, revisions or changes are made to the Agreement. All other terms and conditions of the
Agreement remain in full force and effect and the Parties hereby ratify and confirm their rights
and obligations under the Agreement, as amended hereby.
(b)
Counterparts
. This Amendment may be executed in one or more counterparts, each of
which shall be considered an original instrument, but all of which shall be considered one and the
same agreement, and shall become binding when one or more counterparts have been signed by each of
the Parties and delivered to each of them.
(c)
Governing Law
. This amendment and the rights and obligations of the parties
hereunder shall be governed by and construed and interpreted in accordance with the internal laws
of the Commonwealth of Massachusetts.
(e)
Effectiveness of Amendment
. The amendments to the Agreement contemplated by this
Amendment shall become effective upon the execution of this Amendment by the Parties.
Page 4 of 5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under seal as of the day
and year first set forth above.
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THERMO FISHER SCIENTIFIC INC.
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By:
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/s/
Steve Sheehan
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EXECUTIVE:
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/s/ Marc N. Casper
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Marc N. Casper
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Page 5 of 5
EXHIBIT 10.8
AMENDMENT NO. 1 TO
EXECUTIVE SEVERANCE AGREEMENT
This AMENDMENT NO. 1 (the Amendment) to the Executive Severance Agreement dated November 19,
2003 (the Agreement) by and between THERMO ELECTRON CORPORATION, a Delaware corporation (the
Company), and Guy Broadbent (the Executive) is made this 9th day of November, 2006 by and
between the Company and the Executive. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Agreement.
WHEREAS, the Company and the Executive have entered into the Agreement for the purpose of
describing the severance benefits that the Executive would receive in the event that Executives
employment with the Company is terminated under certain circumstances;
WHEREAS, on November 9, 2006, the Company completed a merger with Fisher Scientific
International Inc. (the Merger), pursuant to which, among other things, the Company changed its
name to Thermo Fisher Scientific Inc.;
WHEREAS, in connection with the Merger, the Company is making grants of options and restricted
shares to its executives and as a condition of such grants, the Company is requiring that the
executives sign a noncompetition agreement; and
WHEREAS, the Company and the Executive have agreed to amend the Agreement in connection with
Executives execution of the noncompetition agreement between the Company and the Executive of even
date herewith;
NOW, THEREFORE, in consideration for the mutual promises contained herein, the parties hereby
agree as follows.
1.
Amendments to Agreement
.
(a) All references to Thermo Electron Corporation in the Agreement are hereby amended to
read Thermo Fisher Scientific Inc.
(b) Section 1 of the Agreement is hereby amended to add a new sub-section 1.4 to be and read
as follows:
1.4
Good Reason
means the occurrence, without the Executives written consent, of
any of the events or circumstances set forth in clauses (a) through (f) below. Notwithstanding the
occurrence of any such event or circumstance, such occurrence shall not be deemed to constitute
Good Reason if, prior to the effective date of termination (which shall be not less than 15 days
following delivery of written notice of termination by Executive to the
Company), such event or circumstance has been fully corrected and the Executive has been reasonably
compensated for any losses or damages resulting therefrom.
Page 1 of 5
(a) the assignment to the Executive of duties inconsistent in any material respect with the
Executives position (including status, offices, titles and reporting requirements), authority or
responsibilities in effect as of the date of this Agreement or a material diminution in such
position, authority or responsibilities;
(b) a reduction in the Executives annual base salary as in effect on the date of
this Agreement or as the same was or may be increased hereafter from time to time;
(c) the failure by the Company to (i) continue in effect any material compensation or benefit
plan or program, including without limitation any life insurance, medical, health and accident or
disability plan and any vacation program or policy, in which the Executive participates or which is
applicable to the Executive (a Benefit Plan), unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan or program, (ii)
continue the Executives participation therein (or in such substitute or alternative plan) on a
basis not materially less favorable than the basis previously existing (iii) award cash bonuses to
the Executive in amounts and in a manner substantially consistent with past practice in light of
the Companys financial performance and Executives performance or (iv) continue to provide any
material fringe benefit previously enjoyed by Executive;
(d) a change by the Company in the location at which the Executive performs the Executives
principal duties for the Company to a new location that is both (i) outside a radius of 50 miles
from the Executives principal residence and (ii) more than 30 miles from the location at which the
Executive performed the Executives principal duties for the Company immediately prior to the date
of this Agreement; or a requirement by the Company that the Executive travel on Company business to
a substantially greater extent than required immediately prior to the date of this Agreement;
(e) the failure of the Company to obtain the agreement from any successor to the Company to
assume and agree to perform this Agreement, as required by Section 6.1; and
(f) any failure of the Company to pay or provide to the Executive any portion of the
Executives compensation or benefits due under any Benefit Plan within seven days of the date such
compensation or benefits are due (provided, however, that in the case of benefits, the Company
shall have a period of 30 days after receipt of notice from Executive to cure any default), or any
material breach by the Company of this Agreement or any employment agreement with the Executive.
The Executives right to terminate the Executives employment for Good Reason shall not be
affected by the Executives incapacity due to physical or mental illness.
(c) Section 2 of the Agreement is hereby amended and restated in its entirety as follows:
Page 2 of 5
2.
Term of Agreement
. This Agreement, and all rights and obligations of the parties
hereunder, shall take effect upon the Effective Date and shall expire upon the first to occur of
(a) the expiration of the Term (as defined below) or (b) the fulfillment by the Company of all of
its obligations under Sections 4 and 6.2 if the Executives employment with the Company terminates
prior to the expiration of the Term. Term shall mean the period commencing as of the Effective
Date and continuing in effect through November 9, 2011;
provided
,
however
, that on
November 9, 2011 and each November 9 thereafter, the Term shall be automatically extended for one
additional year unless, not later than six months prior to the scheduled expiration of the Term
(including any extension) thereof, the Company shall have given the Executive written notice that
the Term will not be extended.
(d) The initial clause of Section 4.1(a) of the Agreement is hereby amended and restated in
its entirety as follows:
(a)
Termination Without Cause or for Good Reason
. If the Executives employment with
the Company is terminated by the Company (other than for Cause, Disability or death) or by the
Executive for Good Reason, then the Executive shall be entitled to the following benefits:
(e) Section 4.1(a)(i) of the Agreement is hereby amended and restated in its entirety as
follows:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the
date of termination the aggregate of the following amounts:
(1) the sum of (A) the Executives base salary through the date of termination, (B) the
product of (x) the annual bonus paid or payable (including any bonus or portion thereof which has
been earned but deferred) for the most recently completed fiscal year and (y) a fraction, the
numerator of which is the number of days in the current fiscal year through the date of
termination, and the denominator of which is 365 and (C) the amount of any accrued vacation pay, to
the extent not previously paid (the sum of the amounts described in clauses (A), (B), and (C) shall
be hereinafter referred to as the Accrued Obligations); and
(2) the sum of (A) two (2) times the Executives annual base salary and target bonus as in
effect immediately prior to the date of termination, and (B) the amount of any accrued vacation
pay, to the extent not previously paid; and
(f) The reference to 18 months in Section 4.1(a)(ii) is hereby amended to read 24 months.
(g) Section 4.1(b) of the Agreement is hereby amended and restated in its entirety as follows:
(b)
Termination for Cause, Disability or Death
. If the Company terminates the
Executives employment with the Company for Cause, then the Company shall (i) pay the Executive in
a lump sum in cash within 30 days after the date of termination, the Executives
Page 3 of 5
base salary through the date of termination and (ii) timely pay or provide to the Executive the Other Benefits.
If the Company terminates the Executives employment with the Company because of the Executives
disability or the Executives death, then the Company shall (i) pay the Executive or the
Executives estate, in a lump sum in cash within 30 days after the date of termination, the Accrued
Obligations and (ii) timely pay or provide to the Executive the Other Benefits.
(h) Section 4.4 of the Agreement is hereby amended and restated in its entirety as follows:
4.4.
Release of Claims by Executive
. The Executive shall not be entitled to any
payments or other benefits hereunder unless the Executive executes and, if applicable, does not
revoke, a full and complete release of claims and a reasonable and customary separation agreement
that includes nondisparagement and cooperation provisions. The parties further agree that the
separation agreement shall not include any restrictive covenants that are in addition to those
already contained in the Noncompetition Agreement between the Company and Executive dated November
9, 2006.
2.
Miscellaneous
.
(a)
No Other Amendments
. Except as specifically provided in this Amendment, no other
amendments, revisions or changes are made to the Agreement. All other terms and conditions of the
Agreement remain in full force and effect and the Parties hereby ratify and confirm their rights
and obligations under the Agreement, as amended hereby.
(b)
Counterparts
. This Amendment may be executed in one or more counterparts, each of
which shall be considered an original instrument, but all of which shall be considered one and the
same agreement, and shall become binding when one or more counterparts have been signed by each of
the Parties and delivered to each of them.
(c)
Governing Law
. This amendment and the rights and obligations of the parties
hereunder shall be governed by and construed and interpreted in accordance with the internal laws
of the Commonwealth of Massachusetts.
(e)
Effectiveness of Amendment
. The amendments to the Agreement contemplated by this
Amendment shall become effective upon the execution of this Amendment by the Parties.
Page 4 of 5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under seal as of the day
and year first set forth above.
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THERMO FISHER SCIENTIFIC INC.
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By:
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/s/
Steve Sheehan
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EXECUTIVE:
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/s/ Guy Broadbent
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Guy Broadbent
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Page 5 of 5
EXHIBIT 10.9
THERMO FISHER SCIENTIFIC INC.
2005 STOCK INCENTIVE PLAN
as amended and restated on November 9, 2006
1.
Purpose
The purpose of this amended and restated 2005 Stock Incentive Plan (the Plan) of Thermo
Fisher Scientific Inc., a Delaware corporation (the Company), is to advance the interests of the
Companys stockholders by enhancing the Companys and its Subsidiaries (as defined below) ability
to attract, retain and motivate persons who are expected to make important contributions to the
Company or a Subsidiary and by providing such persons with equity ownership opportunities and
performance-based incentives that are intended to align their interests with those of the Companys
stockholders. Subsidiaries means the present or future subsidiary corporations of the Company as
defined in Sections 424(f) of the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder (the Code) and any other business ventures (including, without limitation,
joint venture or limited liability company) in which the Company has a controlling interest.
2.
Eligibility
All of the employees, officers, directors, consultants and advisors of the Company and
its Subsidiaries are eligible to receive options, stock appreciation rights, restricted stock and
other stock-based awards (each, an Award) under the Plan. Each person who receives an Award
under the Plan is deemed a Participant.
3.
Administration and Delegation
(a)
Administration by Board of Directors
. The Plan will be administered by
the Board of Directors of the Company (the Board). The Board shall have authority to grant
Awards and to adopt, amend and repeal such administrative rules, guidelines and practices relating
to the Plan as it shall deem advisable. The Board may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem
expedient to carry the Plan into effect and it shall be the sole and final judge of such
expediency. All decisions by the Board shall be made in the Boards sole discretion and shall be
final and binding on all persons having or claiming any interest in the Plan or in any Award. No
director or person acting pursuant to the authority delegated by the Board shall be liable for any
action or determination relating to or
under the Plan made in good faith.
(b)
Appointment of Committees
. To the extent permitted by applicable law, the
Board may delegate any or all of its powers under the Plan to one or more committees or
subcommittees of the Board (a Committee). All references in the Plan to the Board shall mean
the Board or a Committee of the Board or the officers referred to in Section 3(c) to the extent
that the Boards powers or authority under the Plan have been delegated to such Committee or
officers.
(c)
Delegation to Officers
. To the extent permitted by applicable law, the Board
may delegate to one or more officers of the Company the power to grant Awards to employees or
officers of the Company or any of its Subsidiaries and to exercise such other powers under the Plan
as the Board may determine, provided that the Board shall fix the terms of the Awards to be granted
by such officers (including the exercise price of such Awards, which may include a formula by which
the exercise price will be determined) and the maximum number of shares subject to Awards that the
officers may grant; provided further, however, that no officer shall be authorized to grant Awards
to any executive officer of the Company (as defined by Rule 3b-7 under the Securities Exchange
Act of 1934, as amended (the Exchange Act)) or to any officer of the Company (as defined by
Rule 16a-1 under the Exchange Act).
4.
Stock Available for Awards
(a)
Number of Shares
. Subject to adjustment under Section 9, Awards may be
made under the Plan for up to 11,000,000 shares of common stock, $1.00 par value per share, of the
Company (the Common Stock). Shares issued under the Plan may consist in whole or in part of
authorized but unissued shares or treasury shares. For purposes of counting the number of shares
available for the grant of Awards under the Plan, (i) shares of Common Stock covered by Independent
SARs (as defined in Section 6(b)(2)) shall be counted against the number of shares available for
the grant of Awards under the Plan;
provided
,
however
, that Independent SARs which
may be settled in cash only shall not be so counted; (ii) if any Award (A) expires or is
terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or
in part (including as the result of shares of Common Stock subject to such Award being repurchased
by the Company at the original issuance price pursuant to a contractual repurchase right) or (B)
results in any Common Stock not being issued (including as a result of an Independent SAR that was
settleable either in cash or in stock actually being settled in cash), the unused Common Stock
covered by such Award shall again be available for the grant of Awards under the Plan; provided,
however, in the case of Incentive Stock Options (as hereinafter defined), the foregoing sentence
shall be subject to any limitations under the Code; and (iii) shares of Common Stock tendered to
the Company by a Participant to (A) purchase shares of Common Stock upon the exercise of an Award
or (B) satisfy tax withholding obligations (including shares retained from the Award creating the
tax obligation) shall not be added back to the number of shares available for the future grant of
Awards under the Plan.
(b)
Sub-limits
. Subject to adjustment under Section 9, the following sub-limits on
the number of shares subject to Awards shall apply:
(1)
Section 162(m) Per-Participant Limit
. The maximum number of shares of
Common Stock with respect to which Awards may be granted to any Participant under
the Plan shall be 1,500,000 per calendar year. For purposes of the foregoing limit, the
combination of an Option in tandem with a SAR (as each is hereafter defined) shall be treated as a
single Award. The per-Participant limit described in this Section 4(b)(1) shall be construed and
applied consistently with Section 162(m) of the Code or any successor provision thereto, and the
regulations thereunder (Section 162(m)).
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(2)
Limit on Awards other than Options and SARS
. The maximum number of shares with
respect to which Awards other than Options and SARs may be granted shall be 3,000,000.
(3)
Limit on Awards to Directors
. The maximum number of shares with respect to
which Awards may be granted to directors who are not employees of the Company or a Subsidiary at
the time of grant shall be 500,000.
5.
Stock Options
(a)
General
. The Board may grant options to purchase Common Stock (each, an
Option) and determine the number of shares of Common Stock to be covered by each Option, the
exercise price of each Option and the conditions and limitations applicable to the exercise of each
Option, including conditions relating to applicable federal or state securities laws, as it
considers necessary or advisable. An Option which is not intended to be an Incentive Stock Option
(as hereinafter defined) shall be designated a Nonstatutory Stock Option.
(b)
Incentive Stock Options
. An Option that the Board intends to be an incentive
stock option as defined in Section 422 of the Code (an Incentive Stock Option) shall only be
granted to employees of the Company, any of the Companys present or future subsidiary corporations
as defined in Sections 424(f) of the Code, and any other entities the employees of which are
eligible to receive Incentive Stock Options under the Code, and shall be subject to and shall be
construed consistently with the requirements of Section 422 of the Code. The Company shall have no
liability to a Participant, or any other party, if an Option (or any part thereof) that is intended
to be an Incentive Stock Option is not an Incentive Stock Option or for any action taken by the
Board pursuant to Section 10(f), including without limitation the conversion of an Incentive Stock
Option to a Nonstatutory Stock Option.
(c)
Exercise Price
.
(1)
Establishment of Exercise Price
. The Board shall establish the exercise price of
each Option and specify such exercise price in the applicable option agreement;
provided
,
however
, that the exercise price shall be not less than 100% of the fair market value per
share of Common Stock as determined by (or in a manner approved by) the Board (Fair Market Value)
as of the date the Option is granted.
(2)
Limitation on Repricing
. Unless such action is approved by the Companys
stockholders: (A) no outstanding Option granted under the Plan may be amended to provide an
exercise price per share that is
lower than the then-current exercise price per share of such outstanding Option (other than
adjustments pursuant to Section 9) and (B) the Board may not cancel any outstanding Option and
grant in substitution therefor new Awards under the Plan covering the same or a different number of
shares of Common Stock and having an exercise price per share lower than the then-current exercise
price per share of the cancelled Option.
(d)
Duration of Options
. Each Option shall be exercisable at such time or
times and subject to such terms and conditions as the Board may specify in the applicable option
agreement;
provided
,
however
, that no Option will be granted for a term in excess
of 10 years.
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(e)
Exercise of Option
. Options may be exercised by delivery to the Company of a
written notice of exercise signed by the proper person or by any other form of notice (including
electronic notice) approved by the Company together with payment in full as specified in Section
5(f) for the number of shares for which the Option is exercised. Shares of Common Stock subject to
the Option will be delivered by the Company following exercise either as soon as practicable or,
subject to such conditions as the Board shall specify, on a deferred basis (with the Companys
obligation to be evidenced by an instrument providing for future delivery of the deferred shares at
the time or times specified by the Board).
(f)
Payment Upon Exercise.
Common Stock purchased upon the exercise of an Option
granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may otherwise provide in an option agreement, by (i) delivery of an
irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price and any required tax withholding or (ii)
delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions
to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the
exercise price and any required tax withholding;
(3) when the Common Stock is registered under the Securities Exchange Act of 1934 (the
Exchange Act), by delivery of shares of Common Stock owned by the Participant valued at their
Fair Market Value as of the date the shares of Common Stock are so delivered, provided (i) such
method of payment is then permitted under applicable law, (ii) such Common Stock, if acquired
directly from the Company, was owned by the Participant for such minimum period of time, if any, as
may be established by the Board in its discretion and (iii) such Common Stock is not subject to any
repurchase, forfeiture, unfulfilled vesting or other similar requirements;
(4) to the extent permitted by applicable law and by the Board, by (i) delivery of a
promissory note of the Participant to the Company on terms determined by the Board, or (ii) payment
of such other lawful consideration as the Board may determine; or
(5) by any combination of the above permitted forms of payment.
(g)
Substitute Options
. In connection with a merger or consolidation of an
entity with the Company or the acquisition by the Company of property or stock of an entity, the
Board may grant Options in substitution for any
options or other stock or stock-based awards granted by such entity or an affiliate thereof.
Substitute Options may be granted on such terms as the Board deems appropriate in the
circumstances, notwithstanding any limitations on Options contained in the other sections of this
Section 5 or in Section 2. Substitute Options shall not count against the overall share limit set
forth in Section 4(a), except as may be required by reason of Section 422 and related provisions of
the Code.
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6.
Stock Appreciation Rights
.
(a)
General
. A Stock Appreciation Right, or SAR, is an Award entitling the
holder, upon exercise, to receive an amount in cash or Common Stock or a combination thereof (such
form to be determined by the Board) determined in whole or in part by reference to appreciation,
from and after the date of grant, in the fair market value of a share of Common Stock. SARs may be
based solely on appreciation in the fair market value of Common Stock or on a comparison of such
appreciation with some other measure of market growth such as (but not limited to) appreciation in
a recognized market index. The date as of which such appreciation or other measure is determined
shall be the exercise date unless another date is specified by the Board in the SAR Award.
(b)
Grants
. Stock Appreciation Rights may be granted in tandem with, or
independently of, Options granted under the Plan.
(1)
Tandem Awards
. When Stock Appreciation Rights are expressly granted in
tandem with Options, (i) the Stock Appreciation Right will be exercisable only at such time or
times, and to the extent, that the related Option is exercisable (except to the extent designated
by the Board in connection with a Reorganization Event or a Change in Control Event) and will be
exercisable in accordance with the procedure required for exercise of the related Option; (ii) the
Stock Appreciation Right will terminate and no longer be exercisable upon the termination or
exercise of the related Option, except to the extent designated by the Board in connection with a
Reorganization Event or a Change in Control Event and except that a Stock Appreciation Right
granted with respect to less than the full number of shares covered by an Option will not be
reduced until the number of shares as to which the related Option has been exercised or has
terminated exceeds the number of shares not covered by the Stock Appreciation Right; (iii) the
Option will terminate and no longer be exercisable upon the exercise of the related Stock
Appreciation Right; and (iv) the Stock Appreciation Right will be transferable only with the
related Option.
(2)
Independent SARs
. A Stock Appreciation Right not expressly granted in tandem
with an Option (Independent SAR) will become exercisable at such time or times, and on such
conditions, as the Board may specify in the SAR Award.
(c)
Exercise
. Stock Appreciation Rights may be exercised by delivery to the
Company (or its designee) of a written notice of exercise signed by the proper person or by any
other form of notice (including electronic notice) approved by the Company, together with any other
documents required by the Company.
7.
Restricted Stock
.
(a)
General
. The Board may grant Awards entitling recipients to acquire
shares of Common Stock, subject to the right of the Company to repurchase all or part of such
shares at their issue price or other stated or formula price (or to require forfeiture of such
shares if issued at no cost) from the recipient in the event that conditions specified by the Board
in the applicable Award are not satisfied prior to the end of the applicable restriction period or
periods established by the Board for such Award (each, a Restricted Stock Award).
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(b)
Terms and Conditions
. The Board shall determine the terms and conditions of a
Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the issue
price, if any.
(c)
Limitations on Vesting
.
(1) Except as set forth in subsection (c)(2) below, Restricted Stock Awards that vest based on
the passage of time alone shall be zero percent vested prior to the first anniversary of the date
of grant, no more than 33-1/3% vested prior to the second anniversary of the date of grant, and no
more than 66-2/3% vested prior to the third anniversary of the date of grant. Restricted Stock
Awards that vest upon the passage of time and provide for accelerated vesting based on performance
shall not vest prior to the first anniversary of the date of grant.
(2) Subsection (c)(1) above shall not apply to (i) Awards granted pursuant to Section
10(i) or (ii) to a maximum of 500,000 shares of Common Stock with respect to which Restricted Stock
Awards may be granted. With respect to Restricted Stock Awards that are subject to subsection
(c)(1) above, the Board may waive its rights to repurchase shares of Common Stock (or waive
forfeiture thereof) or remove or modify any part or all of the restrictions (or vesting thereof)
applicable to the Restricted Stock Award (x) in exercise of the authority granted to the Board in
Section 10(d), at the time a Restricted Stock Award is granted and (y) pursuant to Section 9 or in
such other extraordinary circumstances (as determined by the Board) affecting the Company, a
Participant or the Plan after the Restricted Stock Award has been granted.
(d)
Stock Certificates
. Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the Participant and, unless otherwise
determined by the Board, deposited by the Participant, together with a stock power endorsed in
blank, with the Company (or its designee). At the expiration of the applicable restriction
periods, the Company (or such designee) shall deliver the certificates no longer subject to such
restrictions to the Participant or if the Participant has died, to the beneficiary designated, in a
manner determined by the Company, by a Participant to receive amounts due or exercise rights of the
Participant in the event of the Participants death (the Designated Beneficiary). In the absence
of an effective designation by a Participant, Designated Beneficiary shall mean the Participants
estate.
(e)
Deferred Delivery of Shares
. The Board may, at the time any Restricted Stock
Award is granted, provide that, at the time Common Stock would
otherwise be delivered pursuant to the Award, the Participant shall instead receive an
instrument evidencing the right to future delivery of Common Stock at such time or times, and on
such conditions, as the Board shall specify. The Board may at any time accelerate the time at
which delivery of all or any part of the Common Stock shall take place. The Board may also permit
an exchange of unvested shares of Common Stock that have already been delivered to a Participant
for an instrument evidencing the right to future delivery of Common Stock at such time or times,
and on such conditions, as the Board shall specify.
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8. Other Stock-Based Awards.
(a)
General
.
Other Awards of shares of Common Stock, and other Awards that are valued in whole or in part
by reference to, or are otherwise based on, shares of Common Stock or other property, may be
granted hereunder to Participants (Other Stock Unit Awards), including without limitation Awards
entitling recipients to receive shares of Common Stock to be delivered in the future. Such Other
Stock Unit Awards shall also be available as a form of payment in the settlement of other Awards
granted under the Plan or as payment in lieu of compensation to which a Participant is otherwise
entitled. Other Stock Unit Awards may be paid in shares of Common Stock or cash, as the Board
shall determine. Subject to the provisions of the Plan, the Board shall determine the conditions
of each Other Stock Unit Awards, including any purchase price applicable thereto. At the time any
Award is granted, the Board may provide that, at the time Common Stock would otherwise be delivered
pursuant to the Award, the Participant will instead receive an instrument evidencing the
Participants right to future delivery of the Common Stock.
(b)
Limitations on Vesting
.
(1) Except as set forth in subsection (b)(2) below, Other Stock Unit Awards that vest based on
the passage of time along shall be zero percent vested prior to the first anniversary of the date
of grant, no more that 33-1/3% vested prior to the second anniversary of the date of grant, and no
more than 66-2/3% vested prior to the third anniversary of the date of grant. Other Stock Unit
Awards that vest upon the passage of time and provide for accelerated vesting based on performance
shall not vest prior to the first anniversary of the date of grant.
(2) Subsection (b)(1) above shall not apply to (i) Awards granted pursuant to Section 10(i) or
(ii) to a maximum of 500,000 shares of Common Stock with respect to which Restricted Stock Awards
or Other Stock Unit Awards may be granted. With respect to Other Stock Unit Awards that are
subject to subsection (b)(1) above, the Board may waive forfeiture thereof or remove or modify any
part or all of the restrictions (or vesting thereof) applicable to the Other Stock Unit Award (x)
in exercise of the authority granted to the Board in Section 9 or Section 10(d), at the time an
Other Stock Unit Award is granted and (y) in such other extraordinary circumstances (as determined
by the Board) affecting the Company, a Participant or the Plan after the Other Stock Unit Award has
been granted.
9.
Adjustments for Changes in Common Stock and Certain Other Events
.
(a)
Changes in Capitalization
. In the event of any stock split, reverse stock
split, stock dividend, recapitalization, combination of shares, reclassification of shares,
spin-off or other similar change in capitalization or event, or any distribution to holders of
Common Stock other than an ordinary cash dividend, (i) the number and class of securities available
under this Plan, (ii) the sub-limits set forth in Sections 4(b), 7(c)(2) and 8(b), (iii) the number
and class of securities and exercise price per share of each outstanding Option, (iv) the share-
and per-share provisions of each Stock Appreciation Right, (v) the repurchase price per share
subject to each outstanding Restricted Stock Award and (vi) the share- and per-share-related
provisions of each
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outstanding Other Stock Unit Award, shall be equitably adjusted by the Company
(or substituted Awards may be made, if applicable) to the extent determined by the Board.
(b)
Reorganization and Change in Control Events
(1)
Definitions
(A) A Reorganization Event shall mean:
(i) any merger or consolidation of the Company with or into another entity as a result of
which all of the Common Stock of the Company is converted into or exchanged for the right to
receive cash, securities or other property or is cancelled;
(ii) any exchange of all of the Common Stock of the Company for cash, securities or other
property pursuant to a share exchange transaction; or
(iii) any complete liquidation or
dissolution of the Company.
(B) A Change in Control Event shall mean:
(i) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a Person) of beneficial ownership of any capital stock of the
Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 40% or more of either (x) the then-outstanding shares of common
stock of the Company (the Outstanding Company Common Stock) or (y) the combined voting power of
the then-outstanding securities of the Company entitled to vote generally in the election of
directors (the Outstanding Company Voting Securities);
provided
,
however
, that
for purposes of this subsection (i), the following acquisitions shall not constitute a Change in
Control Event: (A) any acquisition directly by the Company, (B) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or (C) any acquisition by any corporation pursuant to a Business
Combination (as defined below) which complies with clauses (x) and (y) of subsection (iii) of this
definition; or
(ii) such time as the Continuing Directors (as defined below) do not constitute a majority of
the Board (or, if applicable, the Board of Directors of a successor corporation to the Company),
where the term Continuing Director means at any date a member of the Board (x) who was a member
of the Board on the date of the initial adoption of this Plan by the Board or (y) who was nominated
or elected subsequent to such date by at least a majority of the directors who were Continuing
Directors at the time of such nomination or election or whose election to the Board was recommended
or endorsed by at least a majority of the directors who were Continuing Directors at the time of
such nomination or election;
provided
,
however
, that there
shall be excluded from this clause (y) any individual whose initial assumption of office
occurred as a result of an actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies or consents, by or on
behalf of a person other than the Board; or
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(iii) the consummation of a merger, consolidation, reorganization, recapitalization or share
exchange involving the Company or a sale or other disposition of all or substantially all of the
assets of the Company in one or a series of transactions (a Business Combination), unless,
immediately following such Business Combination, each of the following two conditions is satisfied:
(x) all or substantially all of the individuals and entities who were the beneficial owners of the
Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more than 60% of the
then-outstanding shares of common stock and the combined voting power of the then-outstanding
securities entitled to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns the Company or substantially all of the
Companys assets either directly or through one or more subsidiaries) (such resulting or acquiring
corporation is referred to herein as the Acquiring Corporation) in substantially the same
proportions as their ownership of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, respectively, immediately prior to such Business Combination and (y) no Person
(excluding any employee benefit plan (or related trust) maintained or sponsored by the Company or
by the Acquiring Corporation) beneficially owns, directly or indirectly, 40% or more of the
then-outstanding shares of common stock of the Acquiring Corporation, or of the combined voting
power of the then-outstanding securities of such corporation entitled to vote generally in the
election of directors; or
(iv) the approval by the stockholders of the Company of the complete liquidation or
dissolution of the Company.
(C) Cause shall have the meaning set forth in the Participants employment or other
agreement with the Company or any Subsidiary, provided that if the Participant is not a party to
any such employment or other agreement or such employment or other agreement does not contain a
definition of Cause, then Cause shall mean:
(i) the willful and continued failure of the Participant to perform substantially the
Participants duties with the Company or any Subsidiary (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand for substantial performance
is delivered to the Participant by the employing Company or Subsidiary that specifically identifies
the alleged manner in which the Participant has not substantially performed the Participants
duties; or
(ii) the willful engaging by the Participant in illegal conduct or gross misconduct that is
materially and demonstrably injurious to the Company or any Subsidiary.
For purposes of this definition, no act or failure to act, on the part of the Participant shall be
considered willful unless it is done, or omitted to be done, by the Participant in bad faith or
without reasonable belief that the Participants action or omission was in the best interests of
the Company or any Subsidiary.
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(D) Good Reason shall have the meaning set forth in the Participants employment or other
agreement with the Company or any Subsidiary, provided that if the Participant is not a party to
any such employment or other agreement or such employment or other agreement does not contain a
definition of Good Reason, then Good Reason shall mean, the occurrence, on or after a Change in
Control Event and without the affected Participants written consent, of:
(i) the assignment to the Participant of duties in the aggregate that are inconsistent with
the Participants level of responsibility immediately prior to the Change in Control Event
(including without limitation, in the case of a Participant who was, immediately prior to the
Change in Control Event, an executive officer of the Company, such employee ceasing to be an
executive officer of the Company);
(ii) a reduction by the employer in the Participants annual base salary,
annual incentive compensation opportunity, or long term incentive compensation opportunity
(including an adverse change in the performance criteria or a decrease in the target amount of
annual or long term incentive compensation) from that in effect immediately prior to the Change in
Control Event; or
(iii) the relocation of the Participants principal place of employment to a location more
than fifty (50) miles from the Participants principal place of employment immediately prior to the
Change in Control Event, provided, however, such relocation also requires a material change in the
Participants commute.
(2)
Effect of Reorganization Event on Options.
Upon the occurrence of a
Reorganization Event (regardless of whether such event also constitutes a Change in Control Event),
or the execution by the Company of any agreement with respect to a Reorganization Event (regardless
of whether such event will result in a Change in Control Event), the Board shall provide that all
outstanding Options shall be assumed, or equivalent options shall be substituted, by the acquiring
or succeeding corporation (or an affiliate thereof). For purposes hereof, an Option shall be
considered to be assumed if, following consummation of the Reorganization Event, the Option confers
the right to purchase, for each share of Common Stock subject to the Option immediately prior to
the consummation of the Reorganization Event, the consideration (whether cash, securities or other
property) received as a result of the Reorganization Event by holders of Common Stock for each
share of Common Stock held immediately prior to the consummation of the Reorganization Event (and
if holders were offered a choice of consideration, the type of consideration chosen by the holders
of a majority of the outstanding shares of Common Stock);
provided
,
however
, that
if the consideration received as a result of the Reorganization Event is not solely common stock of
the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the
consent of the acquiring or succeeding corporation, provide for the consideration to be received
upon the exercise of Options to consist solely of common stock of the acquiring or succeeding
corporation (or an affiliate thereof) equivalent in value (as determined by the Board) to the per
share consideration received by holders of outstanding shares of Common Stock as a result of the
Reorganization Event.
Notwithstanding the foregoing, if the acquiring or succeeding corporation (or an affiliate thereof)
does not agree to assume, or substitute for, such Options, or in the event of a liquidation or
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dissolution of the Company, the Board shall, upon written notice to the Participants, provide that
all then unexercised Options will become exercisable in full as of a specified time prior to the
Reorganization Event and will terminate immediately prior to the consummation of such
Reorganization Event, except to the extent exercised by the Participants before the consummation of
such Reorganization Event;
provided
,
however
, in the event of a Reorganization
Event under the terms of which holders of Common Stock will receive upon consummation thereof a
cash payment for each share of Common Stock surrendered pursuant to such Reorganization Event (the
Acquisition Price), then the Board may instead provide that all outstanding Options shall
terminate upon consummation of such Reorganization Event and that each Participant shall receive,
in exchange therefor, a cash payment equal to the amount (if any) by which (A) the Acquisition
Price multiplied by the number of shares of Common Stock subject to such outstanding Options
(whether or not then exercisable), exceeds (B) the aggregate exercise price of such Options. In
the event of a Reorganization Event that does not also constitute a Change in Control Event, then
to the extent all or any portion of an Option becomes exercisable solely as a result of the first
sentence of this paragraph, upon exercise of such Option the Participant shall receive shares
subject to a right of repurchase by the Company or its successor at the Option
exercise price. Such repurchase right (i) shall lapse at the same rate as the Option would have
become exercisable under its terms and (ii) shall not apply to any shares subject to the Option
that were exercisable under its terms without regard to the first sentence of this paragraph.
(3)
Effect of Reorganization Event on Restricted Stock Awards.
Upon the occurrence of
a Reorganization Event that is not a Change in Control Event, the repurchase and other rights of
the Company under each outstanding Restricted Stock Award shall inure to the benefit of the
Companys successor and shall apply to the cash, securities or other property which the Common
Stock was converted into or exchanged for pursuant to such Reorganization Event in the same manner
and to the same extent as they applied to the Common Stock subject to such Restricted Stock Award.
(4)
Effect of Reorganization Event on Stock Appreciation Rights and Other Stock Unit
Awards.
The Board may specify in an Award at the time of the grant the effect of a
Reorganization Event on any SAR and Other Stock Unit Award.
(5)
Effect of Change in Control Event on Awards.
(A) With respect to Awards granted on or after November 9, 2006:
(i) unless otherwise determined by the Board at the time of the grant or evidenced in an
applicable instrument evidencing an Award or employment or other agreement, in the event that a
Participants employment or service is terminated by the Company or any Subsidiary without Cause or
by the Participant for Good Reason, in each case within eighteen (18) months following a Change in
Control Event:
(x) any Award carrying a right to exercise that was not previously vested and exercisable
shall become fully vested and exercisable and all outstanding Awards shall remain exercisable for
one (1) year following such date of termination of
11
employment or service but in no event beyond the
original term of the Award and shall thereafter terminate; and
(y) the restrictions, deferral limitations, payment conditions, and forfeiture conditions
applicable to any Award other than an Award described in (x) shall lapse and such Awards shall be
deemed fully vested, and any performance conditions imposed with respect to Awards shall be deemed
to be achieved at the higher of (aa) the target level for the applicable performance period or (bb)
the level of achievement of such performance conditions for the most recently concluded performance
period.
(ii) Notwithstanding subparagraph (i) of this Section 9(b)(5)(A), upon a Change in Control
Event, the Board shall have the discretion to:
(x) accelerate the vesting or payment of any Award effective immediately upon the occurrence
of a Change in Control Event; or
(y) convert the vesting of performance-based Awards to a time-based vesting schedule as deemed
appropriate by the Board;
in each case only to the extent that such action would not cause any Award to result in deferred
compensation that is subject to the additional twenty percent (20%) tax under Section 409A of the
Code.
(B) With respect to Awards granted before November 9, 2006, except to the extent specifically
provided to the contrary in the instrument evidencing any Award or other agreement between a
Participant and the Company, upon a Change in Control Event: (i) all Options then outstanding shall
automatically become exercisable in full and (ii) all restrictions and conditions on all Restricted
Stock Awards then outstanding shall automatically be deemed terminated or satisfied.
(6)
Adjustment for Excise Tax.
The Board may, in its sole discretion, provide in an
instrument evidencing an Award or otherwise for specific treatment of any outstanding Award in the
event that any payment or benefit under this Plan would be subject to the excise tax imposed by
Section 4999 of the Code (the Excise Tax) or any interest or penalties with respect to such
Excise Tax. Such treatment may include the payment by the Company of a gross-up payment in an
amount equal to such Excise Tax, interest and penalties or the imposition of a cutback in payments
or benefits.
10.
General Provisions Applicable to Awards
(a)
Transferability of Awards
. Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are granted, either
voluntarily or by operation of law, except by will or the laws of descent and distribution or,
other than in the case of an Incentive Stock Option, pursuant to a qualified domestic relations
order, and, during the life of the Participant, shall be exercisable only by the Participant;
except that the Board may permit or provide in an Award for the gratuitous transfer of the Award by
the Participant to or for the benefit of any immediate family member, family trust or family
partnership established
12
solely for the benefit of the Participant and/or an immediate family member
thereof if, with respect to such proposed transferee, the Company would be eligible to use a Form
S-8 for the registration of the sale of the Common Stock subject to such option under the
Securities Act of 1933, as amended;
provided
that the Company shall not be required to
recognize any such transfer until such time as the Participant and such permitted transferee shall,
as a condition to such transfer, deliver to the Company a written instrument in form and substance
satisfactory to the Company confirming that such transferee shall be bound by all of the terms and
conditions of the Award. References to a Participant, to the extent relevant in the context, shall
include references to authorized transferees.
(b)
Documentation
. Each Award shall be evidenced in such form (written, electronic
or otherwise) as the Board shall determine. Each Award may contain terms and conditions in
addition to those set forth in the Plan.
(c)
Board Discretion
. Except as otherwise provided by the Plan, each Award may be
made alone or in addition or in relation to any other Award. The terms of each Award need not be
identical, and the Board need not treat Participants uniformly.
(d)
Termination of Status
. The Board shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other change in the employment or
other status of a Participant and the extent to which, and the period during which, the
Participant, or the Participants legal representative, conservator, guardian or Designated
Beneficiary, may exercise rights under the Award.
(e)
Withholding
. Each Participant shall pay to the Company, or make provision
satisfactory to the Company for payment of, any taxes required by law to be withheld in connection
with an Award to such Participant. If provided for in an Award or approved by the Company, in its
sole discretion, a Participant may satisfy such tax obligations in whole or in part by delivery of
shares of Common Stock, including shares retained from the Award creating the tax obligation,
valued
at their Fair Market Value;
provided,
however
, except as otherwise provided by
the Board, that the total tax withholding where stock is being used to satisfy such tax obligations
cannot exceed the Companys minimum statutory withholding obligations (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes, that are applicable
to such supplemental taxable income). Shares surrendered to satisfy tax withholding requirements
cannot be subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements.
The Company may, to the extent permitted by law, deduct any such tax obligations from any payment
of any kind otherwise due to a Participant.
(f)
Amendment of Award
. Except as set forth in Sections 5(c)(2), 7(c) and 8(b),
the Board may amend, modify or terminate any outstanding Award, including but not limited to,
substituting therefor another Award of the same or a different type, changing the date of exercise
or realization, and converting an Incentive Stock Option to a Nonstatutory Stock Option,
provided
that the Participants consent to such action shall be required unless the Board
determines that the action, taking into account any related action, would not materially and
adversely affect the Participant.
13
(g)
Conditions on Delivery of Stock
. The Company will not be obligated to deliver
any shares of Common Stock pursuant to the Plan or to remove restrictions from shares previously
delivered under the Plan until (i) all conditions of the Award have been met or removed to the
satisfaction of the Company, (ii) in the opinion of the Companys counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied, including any
applicable securities laws and any applicable stock exchange or stock market rules and regulations,
and (iii) the Participant has executed and delivered to the Company such representations or
agreements as the Company may consider appropriate to satisfy the requirements of any applicable
laws, rules or regulations.
(h)
Acceleration
. Except as otherwise provided in Section 7(c) and Section 8(b),
the Board may at any time provide that any Award shall become immediately exercisable in full or in
part, free of some or all restrictions or conditions, or otherwise realizable in full or in part,
as the case may be.
(i)
Performance Conditions
.
(1) This Section 10(i) shall be administered by a Committee approved by the Board, all
of the members of which are outside directors as defined by Section 162(m) (the Section 162(m)
Committee).
(2) Notwithstanding any other provision of the Plan, if the Section 162(m) Committee
determines, at the time a Restricted Stock Award or Other Stock Unit Award is granted to a
Participant, that such Participant is, or is likely to be as of the end of the tax year in which
the Company would claim a tax deduction in connection with such Award, a Covered Employee (as
defined in Section 162(m)), then the Section 162(m) Committee may provide that this
Section 10(i) is applicable to such Award.
(3) If a Restricted Stock Award or Other Stock Unit Award is subject to this Section 10(i),
then the lapsing of restrictions thereon and the distribution of cash or Shares pursuant thereto,
as applicable, shall be subject to the achievement of one or more objective performance goals
established by the Section 162(m) Committee, which shall be based on the relative or absolute
attainment of specified levels of one or any combination of the following: (a) earnings per share,
(b) return on average equity or average assets in relation to a peer group of companies designated
by the Company, (c) earnings, (d) earnings growth, (e) earnings before interest, taxes and
amortization (EBITA), (f) operating income, (g) operating margins, (h) revenues, (i) expenses, (j)
stock price, (k) market share, (l) chargeoffs, (m) reductions in non-performing assets, (n) return
on sales, assets, equity or investment, (o) regulatory compliance, (p) satisfactory internal or
external audits, (q) improvement of financial ratings, (r) achievement of balance sheet or income
statement objectives, (s) net cash provided from continuing operations, (t) stock price
appreciation, (u) total shareholder return, (v) cost control, (w) strategic initiatives, (x) net
operating profit after tax, (y) pre-tax or after-tax income, (z) cash flow, or (aa) such other
objective goals established by the 162(m) Committee, and may be absolute in their terms or measured
against or in relationship to other companies comparably, similarly or otherwise situated. Such
performance goals may be adjusted to exclude any one or more of (i) extraordinary items and other
unusual or non-recurring items, (ii) discontinued operations, (iii) gains or losses on the
dispositions of discontinued operations, (iv) the cumulative effects of
14
changes in accounting
principles, (v) the writedown of any asset, and (vi) charges for restructuring and rationalization
programs. Such performance goals may vary by Participant and may be different for different
Awards. Such performance goals may be particular to a Participant or the department, branch, line
of business, subsidiary or other unit in which the Participant works and may cover such period as
may be specified by the Section 162(m) Committee. Such performance goals shall be set by the
Section 162(m) Committee within the time period prescribed by, and shall otherwise comply with the
requirements of, Section 162(m).
(4) Notwithstanding any provision of the Plan, with respect to any Restricted Stock Award
or Other Stock Unit Award that is subject to this Section 10(i), the Section 162(m) Committee may
adjust downwards, but not upwards, the cash or number of Shares payable pursuant to such Award, and
the Section 162(m) Committee may not waive the achievement of the applicable performance goals
except in the case of the death, disability or termination of employment by the Company without
Cause or by the Participant for Good Reason, in each case within 18 months of a Change in Control
Event.
(5) The Section 162(m) Committee shall have the power to impose such other restrictions on
Awards subject to this Section 10(i) as it may deem necessary or appropriate to ensure that such
Awards satisfy all requirements for performance-based compensation within the meaning of Section
162(m)(4)(C) of the Code, or any successor provision thereto.
11.
Miscellaneous
(a)
No Right To Employment or Other Status
. No person shall have any claim or
right to be granted an Award, and the grant of an Award shall not be construed as giving a
Participant the right to continued employment or any other relationship with the Company. The
Company expressly reserves the right at any time to dismiss or otherwise terminate its relationship
with a Participant free from any liability or claim under the Plan, except as expressly provided in
the applicable
Award.
(b)
No Rights As Stockholder
. Subject to the provisions of the applicable Award,
no Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any
shares of Common Stock to be distributed with respect to an Award until becoming the record holder
of such shares. Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the number of shares
subject to such Option are adjusted as of the date of the distribution of the dividend (rather than
as of the record date for such dividend), then an optionee who exercises an Option between the
record date and the distribution date for such stock dividend shall be entitled to receive, on the
distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such
Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of
business on the record date for such stock dividend.
(c)
Effective Date and Term of Plan
. The Plan shall become effective on the date
on which it is adopted by the Board, but no Award may be granted unless and until the Plan has been
approved by the Companys stockholders. No Awards shall be granted under the Plan after the
completion of 10 years from the earlier of (i) the date on which the Plan was adopted by the
15
Board
or (ii) the date the Plan was approved by the Companys stockholders, but Awards previously granted
may extend beyond that date.
(d)
Amendment of Plan
. The Board may amend, suspend or terminate the Plan or any
portion thereof at any time;
provided
that
(i) to the extent required by Section
162(m), no Award granted to a Participant that is intended to comply with Section 162(m) after the
date of such amendment shall become exercisable, realizable or vested, as applicable to such Award,
unless and until such amendment shall have been approved by the Companys stockholders if required
by Section 162(m) (including the vote required under Section 162(m)); (ii) no amendment that would
require stockholder approval under the rules of the New York Stock Exchange (NYSE) may be made
effective unless and until such amendment shall have been approved by the Companys stockholders,
and (iii) if the NYSE amends its corporate governance rules so that such rules no longer require
stockholder approval of material revisions to equity compensation plans, then, from and after the
effective date of such amendment to the NYSE rules, no amendment to the Plan (A) materially
increasing the number of shares authorized under the Plan, (B) expanding the types of Awards that
may be granted under the Plan, (C) materially expanding the class of participants eligible to
participate in the Plan, or (D) deleting or limiting any provisions prohibiting repricing of
options shall be effective unless stockholder approval is obtained. In addition, if at any time
the approval of the Companys stockholders is required as to any other modification or
amendment under Section 422 of the Code or any successor provision with respect to Incentive
Stock Options, the Board may not effect such modification or amendment without such approval. No
amendment of the Plan may adversely affect the rights of any Participant under any Award previously
granted without such Participants consent.
(e)
Provisions for Foreign Participants
. The Board may modify Awards granted to
Participants who are foreign nationals or employed outside the United States or establish subplans
or procedures under the Plan to recognize differences in laws, rules, regulations or customs of
such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other
matters.
(f)
Compliance With Code Section 409A
. No Award shall provide for deferral of
compensation that does not comply with Section 409A of the Code, unless the Board, at the time of
grant, specifically provides that the Award is not intended to comply with Section 409A of the
Code.
(g)
Governing Law
. The provisions of the Plan and all Awards made hereunder
shall be governed by and interpreted in accordance with the laws of the State of Delaware, without
regard to any applicable conflicts of law.
16
EXHIBIT 10.10
FISHER SCIENTIFIC INTERNATIONAL INC.
2005 EQUITY AND INCENTIVE PLAN, AS AMENDED FOR AWARDS
GRANTED ON OR AFTER NOVEMBER 9, 2006
The following Plan applies to Awards granted on or after November 9, 2006. All Awards granted
prior to November 9, 2006 shall be governed by the Plan in effect immediately prior to such date.
1.
Purpose; Types of Awards; Construction.
The purposes of the 2005 Equity and Incentive
Plan of Fisher Scientific International Inc. are to attract, motivate and retain (a) employees of
the Company and any Subsidiary and Affiliate, (b) independent contractors who provide significant
services to the Company, any Subsidiary or Affiliate and (c) non-employee directors of the Company,
any Subsidiary or any Affiliate. The Plan is also designed to encourage stock ownership by such
persons, thereby aligning their interest with those of the Companys shareholders and to permit the
payment of compensation that qualifies as performance-based compensation under Section 162(m) of
the Code. Pursuant to the Long-Term Incentive Program described herein, there may be granted stock
options (including incentive stock options and non-qualified stock options), and other stock
based awards, including but not limited to restricted stock, restricted stock units, dividend
equivalents, performance units, stock appreciation rights (payable in shares) and other long-term
stock-based or cash-based Awards; excluding, however, reload or other automatic Awards made upon
exercise of Options, which Awards shall not be granted under the Plan. Notwithstanding any
provision of the Plan, to the extent that any Award would be subject to Section 409A of the Code,
no such Award may be granted if it would fail to comply with the requirements set forth in Section
409A of the Code and any regulations or guidance promulgated thereunder.
2.
Definitions.
For purposes of the Plan, the following terms shall be defined as set
forth below:
(a) Affiliate means an affiliate of the Company, as defined in Rule 12b-2
promulgated under Section 12 of the Exchange Act,
(b) Award means individually or collectively, a grant under the Plan of Options,
Restricted Stock or Other Stock-Based Awards or Other Cash-Based Awards.
(c) Award Agreement means any written agreement, contract, or other instrument or
document evidencing an Award.
(d) Board means the Board of Directors of the Company.
(e) Cause shall have the meaning set forth in the Grantees employment or other agreement
with the Company, any Subsidiary or any Affiliate, provided
Page A-1
that if the Grantee is not a party
to any such employment or other agreement or such employment or other agreement does not contain
a definition of Cause, then Cause shall mean (i) the
willful and continued failure of the Grantee to perform substantially the Grantees duties
with the Company or any Subsidiary or Affiliate (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand for substantial
performance is delivered to the Grantee by the employing Company, Subsidiary or Affiliate that
specifically identifies the alleged manner in which the Grantee has not substantially performed
the Grantees duties, or (ii) the willful engaging by the Grantee in illegal conduct or gross
misconduct that is materially and demonstrably injurious to the Company or any Subsidiary or
Affiliate. For purposes of this provision, no act or failure to act, on the part of the Grantee,
shall be considered willful unless it is done, or omitted to be done, by the Grantee in bad
faith or without reasonable belief that the Grantees action or omission was in the best
interests of the Company, Subsidiary or Affiliate.
(f) Change in Control shall have the meaning set forth in Section 7(c) hereof.
(g) Code means the Internal Revenue Code of 1986, as amended from time to time.
(h) Committee means the committee established by the Board to administer the Plan.
The Committee shall consist of not less than two directors who shall be appointed from time to
time by, and shall serve at the pleasure of, the Board. The Committee shall be comprised solely
of directors who are (a) non-employee directors under Rule 16b-3 of the Exchange Act, (b)
outside directors under Section 162(m) of the Code and independent directors pursuant to New
York Stock Exchange requirements.
(i) Company means Thermo Fisher Scientific Inc., a corporation organized under the laws
of the State of Delaware, or any successor corporation.
(j) Covered Employee shall have the meaning set forth in Section 162(m)(3) of the Code.
(k) Disability means that a Grantee (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period of not less than
12 months, or (ii) is, by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a continuous period of
not less than 12 months, receiving income replacement benefits for a period of not less than 3
months under an accident and health plan covering employees of the Company or an Affiliate of
the Company.
(l) Effective Date means March 24, 2005.
Page A-2
(m) Exchange Act means the Securities Exchange Act of 1934, as amended from time to time,
and as now or hereafter construed, interpreted and applied by regulations, rulings and cases.
(n) Excise Tax shall have the meaning set forth in Section 7(d) hereof.
(o) Fair Market Value means, with respect to Stock or other property, the fair market
value of such Stock or other property determined by such methods or procedures as shall be
established from time to time by the Committee. Unless otherwise determined by the Committee in
good faith, the per share Fair Market Value of Stock as of a particular date shall mean, (i) the
closing sales price per share of Stock on the national securities exchange on which the Stock is
principally traded, for the date on which an Award is granted or any other date on which a
determination of fair market value is required (or if such date is not a trading day then the
closing price on the last preceding date that was a trading day), or (ii) if the shares of Stock
are then traded in an over-the-counter market, the average of the closing bid and asked prices
for the shares of Stock in such over-the-counter market for the last preceding date on which
there was a sale of such Stock in such market, or if the shares of Stock are not then listed on
a national securities exchange or traded in an over-the-counter market, such value as the
Committee, in its sole discretion, shall determine in good faith.
(p) Full Value Award means any Award, other than an Option, which Award is settled in
Stock.
(q) Good Reason shall have the meaning set forth in the Grantees employment or other
agreement with the Company, any Subsidiary or any Affiliate, provided that if the Grantee is not
a party to any such employment or other agreement or such employment or other agreement does not
contain a definition of Good Reason, then Good Reason shall mean, the occurrence, on or after
the date of a Change in Control and without the affected Grantees written consent, of (i) the
assignment to the Grantee of duties in the aggregate that are inconsistent with the Grantees
level of responsibility immediately prior to the date of the Change in Control or any diminution
in the nature or status of the Grantees responsibilities from those in effect immediately prior
to the date of the Change in Control (including, without limitation, in the case of a Grantee
who was, immediately prior to the Change in Control, an executive officer of the Company, such
employee ceasing to be an executive officer of a public company); (ii) a reduction by the
employer in the Grantees annual base salary, annual incentive compensation opportunity, or long
term incentive compensation opportunity (including an adverse change in performance criteria or
a decrease in the target amount of annual or long term incentive compensation) from that in
effect immediately prior to the Change in Control; or (iii) the relocation of the Grantees
principal place of employment to a location more than fifty (50) miles from the Grantees
principal place of employment immediately prior to the date of the Change in Control, provided,
however, such relocation
Page A-3
also requires a material change in the Grantees commute.
(r) Grantee means a person who, as an employee of or independent contractor or
non-employee director with respect to the Company, a Subsidiary or an Affiliate, has been
granted an Award under the Plan.
(s) ISO means any Option intended to be and designated as an incentive stock
option within the meaning of Section 422 of the Code.
(t) NQSO means any Option that is designated as a nonqualified stock option.
(u) Option means a right granted to a Grantee under Section 6(b)(i), to purchase shares
of Stock. An Option may be either an ISO or an NQSO.
(v) Other Cash-Based Award means an Award granted to a Grantee under Section
6(b)(iii) hereof, including cash awarded as a bonus or upon the attainment of Performance Goals
or otherwise as permitted under the Plan.
(w) Other Stock-Based Award means an Award granted to a Grantee pursuant to Section
6(b)(iii) hereof, that may be denominated or payable in, valued in whole or in part by reference
to, or otherwise based on, or related to, Stock including but not limited to performance units,
stock appreciation rights (payable in shares), restricted stock units or dividend equivalents,
each of which may be subject to the attainment of Performance Goals or a period of continued
employment or other terms and conditions as permitted under the Plan.
(x) Performance Goals means performance goals based on one or more of the following
criteria: (i) earnings including operating income, earnings before or after taxes, earnings
before or after interest, depreciation, amortization, or extraordinary or special items or book
value per share (which may exclude nonrecurring items); (ii) pre-tax income or after-tax income;
(iii) earnings per common share (basic or diluted); (iv) operating profit; (v) revenue, revenue
growth or rate of revenue growth; (vi) return on assets (gross or net), return on investment,
return on capital, or return on equity; (vii) returns on sales or revenues; (viii) operating
expenses, (ix) stock price appreciation; (x) cash flow, free cash flow, cash flow return on
investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of
cost of capital; (xi) implementation or completion of critical projects or processes; (xii)
economic value created; (xiii) cumulative earnings per share growth; (xiv) operating margin or
profit margin; (xv) common stock price or total stockholder return; (xvi) cost targets,
reductions and savings, productivity and efficiencies; (xvii) strategic business criteria,
consisting of one or more objectives based on meeting specified market penetration, geographic
business expansion, customer satisfaction, employee satisfaction, human resources management,
supervision of litigation, information technology, and goals relating to acquisitions,
divestitures, joint ventures and similar transactions, and budget comparisons; (xviii) personal
Page A-4
professional objectives, including any of the foregoing performance goals, the implementation of
policies and plans, the negotiation of transactions, the development of long term business
goals, formation of joint ventures, research or development collaborations, and the completion
of other corporate transactions; and (xix) any combination of, or a specified increase in, any
of the foregoing. Where applicable, the Performance Goals may be expressed in terms of attaining
a specified level of the particular criteria or the attainment of a percentage increase or
decrease in the particular criteria, and may be applied to one or more of the Company, a
Subsidiary or Affiliate, or a division or strategic business unit of the Company, or may be
applied to the performance of the Company relative to a market index. a group of other companies
or a combination thereof, all as determined by the Committee. The Performance Goals may include
a threshold level of performance below which no payment will be made (or no vesting will occur),
levels of performance at
which specified payments will be made (or specified vesting will occur), and a maximum
level of performance above which no additional payment will be made (or at which full vesting
will occur). Each of the foregoing Performance Goals shall be determined in accordance with
generally accepted accounting principles and shall be subject to certification by the Committee;
provided that the Committee shall have the authority to make equitable adjustments to the
Performance Goals in recognition of unusual or non-recurring events affecting the Company or any
Subsidiary or Affiliate or the financial statements of the Company or any Subsidiary or
Affiliate, in response to changes in applicable laws or regulations, or to account for items of
gain, loss or expense determined to be extraordinary or unusual in nature or infrequent in
occurrence or related to the disposal of a segment of a business or related to a change in
accounting principles.
(y) Plan means this Fisher Scientific International Inc. 2005 Equity and Incentive Plan,
as amended from time to time.
(z) Plan Year means a calendar year.
(aa) Restricted Stock means a share of Stock that is subject to restrictions set
forth in the Plan or any Award Agreement.
(bb) Rule 16b-3 means Rule 16b-3, as from time to time in effect promulgated by the
Securities and Exchange Commission under Section 16 of the Exchange Act, including any successor
to such Rule.
(cc) Stock means shares of common stock, par value $1.00 per share, of the Company.
(dd) Subsidiary means any corporation in an unbroken chain of corporations beginning
with the Company if, at the time of granting of an Award, each of the corporations (other than
the last corporation in the unbroken chain) owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations in the chain.
Page A-5
(ee) Total Payments shall have the meaning set forth in Section 7(d) hereof.
3. Administration.
(a) At the discretion of the Board, the Plan shall be administered either (i) by the
Board or (ii) by the Committee. In the event the Board is the administrator of the Plan, references
herein to the Committee shall be deemed to include the Board. The Board may from time to time
appoint a member or members of the Committee in substitution for or in addition to the member or
members then in office and may fill vacancies on the Committee however caused. The Committee shall
choose one of its members as chairman and shall hold meetings at such times and places as it shall
deem advisable. A majority of the members of the Committee shall constitute a quorum and any
action may be taken by a majority of those present and voting at any meeting. The Board or the
Committee may appoint and delegate to another committee (Option Committee) any or all of the
authority of the Board or the Committee, as applicable, with respect to Awards to Grantees other
than Grantees who are subject to potential liability under Section 16(b) of the 1934 Act with
respect to transactions involving equity securities of the Company at the time any such
delegated authority is exercised. With respect to Awards that are intended to meet the
performance-based compensation exception of Section 162(m) of the Code and that are made to a
Grantee who is expected to be a Covered Employee, such delegation shall not include any authority,
which if exercised by the Option Committee rather than by the Committee, would cause the Grantees
Award to fail to meet such exception.
(b) The decision of the Committee as to all questions of interpretation and application of the
Plan shall be final, binding and conclusive on all persons. The Committee shall have the authority
in its discretion, subject to and not inconsistent with the express provisions of the Plan, to
administer the Plan and to exercise all the power and authority either specifically granted to it
under the Plan or necessary or advisable in the administration of the Plan, including without
limitation, the authority to grant Awards, to determine the persons to whom and the time or times
at which Awards shall be granted, to determine the type and number of Awards to be granted, the
number of shares of Stock to which an Award may relate and the terms, conditions, restrictions and
Performance Goals relating to any Award; to determine Performance Goals no later than such time as
is required to ensure that an underlying Award which is intended to comply with the requirements of
Section 162(m) of the Code so complies; to determine whether, to what extent, and under what
circumstances an Award may be settled, cancelled, forfeited, accelerated, exchanged, or
surrendered; to make adjustments in the terms and conditions (including Performance Goals)
applicable to Awards; to construe and interpret the Plan and any Award; to prescribe, amend and
rescind rules and regulations relating to the Plan; to determine the terms and provisions of the
Award Agreements (which need not be identical for each Grantee); and to make all other
determinations deemed necessary or advisable for the
Page A-6
administration of the Plan. Notwithstanding
the foregoing, the Committee shall not take any action with respect to an Award that would be
treated, for accounting purposes, as a repricing of such Award unless such action is approved by
the Companys shareholders. The Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in any Award Agreement granted hereunder in the manner
and to the extent it shall deem expedient to carry the Plan into effect and shall be the sole and
final judge of such expediency. No Committee member (or member of the Option Committee) shall be
liable for any action or determination made with respect to the Plan or any Award.
4.
Eligibility.
(a) Awards may be granted to officers, independent contractors, employees and
non-employee directors of the Company or of any of its Subsidiaries and Affiliates; provided, that
ISOs shall be granted only to employees (including officers and directors who are also employees)
of the Company, its parent or any of its Subsidiaries.
(b) No ISO shall be granted to any employee of the Company, its parent or any of its
Subsidiaries if such employee owns, immediately prior to the grant of the ISO, stock representing
more than 10% of the voting power or more than 10% of the value of all classes of stock of the
Company or a parent or a Subsidiary, unless the purchase price for the stock under such ISO shall
be at least 110% of its Fair Market Value at the time such ISO is
granted and the ISO, by its terms, shall not be exercisable more than five years from the date
it is granted. In determining the stock ownership under this paragraph, the provisions of Section
424(d) of the Code shall be controlling.
5.
Stock Subject to The Plan.
(a) The maximum number of shares of Stock reserved for the grant or settlement of Awards under
the Plan (the Share Limit) shall be 14,303,064 and shall be subject to adjustment as provided
herein; provided that each share issued under the Plan pursuant to a Full Value Award shall be
counted against the foregoing Share Limit as 1.8 shares for every one share actually issued in
connection with such Award. (For example, if 100 shares of Restricted Stock are granted under this
Plan, 180 shares shall be charged against the Share Limit in connection with that Award.) The
aggregate Awards granted during any fiscal year to any single individual who is likely to be a
covered employee as defined under Code Section 162(m) shall not exceed (i) 1,000,000 shares
subject to Options or stock appreciation rights and (ii) 500,000 shares subject to Restricted Stock
or Other Stock-Based Awards (other than stock appreciation rights). Determinations made in respect
of the limitation set forth in the preceding sentence shall be made in a manner consistent with
Section 162(m) of the Code. Such shares may, in whole or in part, be authorized but unissued
shares or shares that shall have been or may be reacquired by the Company in the open market, in
private transactions or otherwise. If any shares subject to an Award are forfeited, cancelled,
exchanged or surrendered or if an Award otherwise terminates
Page A-7
or expires without a distribution of
shares to the Grantee, the shares of stock with respect to such Award shall, to the extent of any
such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available
for Awards under the Plan. Notwithstanding the foregoing, shares of Stock that are exchanged by a
Grantee or withheld by the Company as full or partial payment in connection with any Award under
the Plan, as well as any shares of Stock exchanged by a Grantee or withheld by the Company or any
Subsidiary to satisfy the tax withholding obligations related to any Award under the Plan, shall
not be available for subsequent Awards under the Plan. Upon the exercise of any Award granted in
tandem with any other Awards, such related Awards shall be cancelled to the extent of the number of
shares of Stock as to which the Award is exercised and, notwithstanding the foregoing, such number
of shares shall no longer be available for Awards under the Plan.
(b) Except as provided in an Award Agreement or as otherwise provided in the Plan, in the
event that the Committee shall determine that any dividend or other distribution (whether in the
form of cash, Stock, or other property), recapitalization, Stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination, repurchase, or share exchange, or
other similar corporate transaction or event, affects the Stock such that an adjustment is
appropriate in order to prevent dilution or enlargement of the rights of Grantees under the Plan,
then the Committee shall make such equitable changes or adjustments as it deems necessary or
appropriate to any or all of (i) the number and kind of shares of Stock or other property
(including cash) that may thereafter be issued in connection with Awards or the total number of
Awards issuable under the Plan, (ii) the number and kind of shares of Stock or other property
issued or issuable in respect of outstanding Awards, (iii) the exercise price, grant price or
purchase price relating to any Award, (iv) the Performance Goals and (v) the
individual limitations applicable to Awards; provided that, with respect to ISOs, any
adjustment shall be made in accordance with the provisions of Section 424(h) of the Code and any
regulations or guidance promulgated thereunder, and provided further that no such adjustment shall
cause any Award hereunder which is or becomes subject to Section 409A of the Code to fail to comply
with the requirements of such section.
6.
Specific Terms of Awards.
(a)
General.
The term of each Award shall be for such period as may be determined by the
Committee. Subject to the terms of the Plan and any applicable Award Agreement, payments to be made
by the Company or a Subsidiary or Affiliate upon the grant, maturation, or exercise of an Award may
be made in such forms as the Committee shall determine at the date of grant or thereafter,
including, without limitation, cash, Stock, or other property, and may be made in a single payment
or transfer, in installments, or on a deferred basis.
(b)
Awards.
The Committee is authorized to grant to Grantees the following Awards, as deemed
by the Committee to be consistent with the purposes of the Plan. The Committee shall determine the
terms and conditions of such Awards at
Page A-8
the date of grant or thereafter.
(i)
Options.
The Committee is authorized to grant Options to Grantees on the following
terms and conditions:
(A)
Type of Award.
The Award Agreement evidencing the grant of an Option under the
Plan shall designate the Option as an ISO or an NQSO.
(B)
Exercise Price.
The exercise price per share of Stock purchasable under an Option
shall be determined by the Committee, but in no event shall the exercise price of an Option
per share of Stock be less than the Fair Market Value of a share of Stock as of the date of
grant of such Option. The purchase price of Stock as to which an Option is exercised shall
be paid in full at the time of exercise; payment may be made in cash, which may be paid by
check, or other instrument acceptable to the Company, or, with the consent of the Company,
in shares of Stock, valued at the Fair Market Value on the date of exercise (including
shares of Stock that otherwise would be distributed to the Grantee upon exercise of the
Option), or if there were no sales on such date, on the next preceding day on which there
were sales or (if permitted by the Committee and subject to such terms and conditions as it
may determine) by surrender of outstanding Awards under the Plan, or the Committee may
permit such payment of exercise price by any other method it deems satisfactory in its
discretion. In addition, subject to applicable law and pursuant to procedures approved by
the Company, payment of the exercise price may he made through the sale of Stock acquired
on exercise of the Option, valued at Fair Market Value on the date of exercise, sufficient
to pay for such Stock (together with, if requested by the Company, the amount of federal,
state or local withholding taxes payable by Grantee by reason of such exercise). Any amount
necessary to satisfy applicable federal, state or local tax withholding requirements shall
be paid promptly upon notification of the amount due. The Company may permit such amount of
tax withholding to be paid in shares of Stock previously owned by the employee, or a
portion of the shares of Stock that otherwise would he distributed to such employee upon
exercise of the Option, or a combination of cash and shares of such Stock.
(C)
Term and Exercisability of Options
.
Options shall be exercisable over the exercise
period (which shall not exceed ten years from the date of grant), at such times and upon
such conditions as the Committee may determine, as reflected in the Award Agreement;
provided that, the Committee shall have the authority to accelerate the exercisability of
any outstanding Option at such time and under such circumstances as it, in its sole
discretion, deems appropriate. An Option may be exercised to the extent of any or all full
shares of Stock as to which the Option has become exercisable, by giving written notice of
such exercise to the Committee or its designated agent.
Page A-9
(D)
Termination of Employment.
Unless otherwise provided in the applicable Award
Agreement or employment agreement, or unless otherwise determined by the Committee:
(I) Except as set forth herein or in subsections II, III, IV or V below, an Option
may not be exercised unless the Grantee is then in the employ of, maintains an
independent contractor relationship with, or is a director of, the Company or a
Subsidiary or an Affiliate (or a company or a parent or subsidiary company of such
company issuing or assuming the Option in a transaction to which Section 424(a) of the
Code applies), and unless the Grantee has remained continuously so employed, or
continuously maintained such relationship, since the date of grant of the Option.
(II) If the Grantees employment or service terminates because of Grantees death
or Disability, all of such Grantees Options (regardless of the extent to which such
Options are then exercisable) shall be exercisable as of such date of termination and
remain outstanding until the earlier of (i) one (1) year from the date of termination or
(ii) the expiration of the term of the Option.
(III) If the Grantees employment or service terminates upon the Grantees
retirement from the Company or a Subsidiary or an Affiliate prior to the expiration of
the term of the Option then, subject to Section 6(b)(i)(D)(V) below, this option shall
vest and become 100% exercisable upon the date of such retirement and the right to
exercise this option shall terminate eighteen months following such date (but in no
event after the expiration of the term of the Option),
provided
that the
retirement date occurs at least one year after the date of grant. For the purposes of
this Agreement, a Grantee shall be deemed to have retired (i) in the event of a
non-employee director of the Company, when he or she ceases to be a director of the
Company and (ii) in the event of an employee of the Company or a Subsidiary or an
Affiliate, upon his or her resignation from employment with the Company or a Subsidiary
or an Affiliate either (A) after the age of 55 and the completion of 10 continuous years
of service to the Company or a Subsidiary or an Affiliate comprising at least 20 hours
per week or (B) after the age of 60 and the completion of 5 continuous years of service
to the Company or a Subsidiary or an Affiliate comprising at least 20 hours per week.
(IV) If the Grantees employment or service is terminated for Cause, all vested and
unvested outstanding Options granted to such Grantee shall terminate on the date of the
Grantees termination of employment or service.
(V) If the Grantees employment or service with the Company and its Affiliates and
Subsidiaries terminates (including by reason of the Affiliate
Page A-10
or Subsidiary which
employs the Grantee ceasing to be an Affiliate or Subsidiary of the Company) other than
as described in subsections (II), (III) and (IV) above, the portions of outstanding
Options granted to such Grantee that are exercisable as of the date of such termination
of employment or service shall remain exercisable until the earlier of (i) three (3)
months following the date of such
termination of employment or service and (ii) expiration of the term of the Option
and shall thereafter terminate. All additional portions of outstanding Options granted
to such Grantee which are not exercisable as of the date of such termination of
employment or service, shall terminate upon the date of such termination of employment
or service.
(E)
Other Provisions.
Options may be subject to such other conditions including,
but not limited to, restrictions on transferability of, or provisions for recovery of, the
shares acquired upon exercise of such Options (or proceeds of sale thereof), as the
Committee may prescribe in its discretion or as may be required by applicable law.
(ii)
Restricted Stock.
(A) The Committee may grant Awards of Restricted Stock, alone or in tandem with other
Awards under the Plan, subject to such restrictions, terms and conditions, as the Committee shall
determine in its sole discretion and as shall be evidenced by the applicable Award Agreement
(provided that any such Award is subject to the vesting requirements described herein). The
vesting of a Restricted Stock Award granted under the Plan may be conditioned upon the completion
of a specified period of employment or service with the Company or any Subsidiary or Affiliate,
upon the attainment of specified Performance Goals, and/or upon such other criteria as the
Committee may determine in its sole discretion. Notwithstanding the foregoing, if the vesting
condition for any Full Value Award (including Award of Restricted Stock), excluding any Full Value
Award made to a Grantee upon commencement of his employment, relates exclusively to the passage of
time and continued employment, such time period shall not be less than 36 months, with
thirty-three and one-third percent (33 1/3%) of the Award vesting every 12 months from the date of
the Award, subject to Sections 6(b)(ii)(E) and 7. If the vesting condition for any Full Value
Award (including Award of Restricted Stock), excluding any Full Value Award made to a Grantee upon
commencement of his employment, relates to the attainment of specified Performance Goals, such
Full Value Award shall vest over a performance period of not less than one (1) year, subject to
Sections 6(b)(ii)(E) and 7.
(B) The Committee shall determine the price, which, to the extent required by law, shall not
be less than the par value of the Stock, to be paid by the Grantee for each share of Restricted
Stock or unrestricted stock or stock units subject to the Award. Each Award Agreement with respect
to such stock award shall set forth the amount (if any) to be paid by the Grantee with respect to
such Award and when and under what circumstances such payment is required to be made.
Page A-11
(C) The Company may provide that a certificate or certificates representing the shares
underlying a Restricted Stock Award shall be registered in the Grantees name and bear an
appropriate legend specifying that such shares are not transferable and are subject to the
provisions of the Plan and the restrictions, terms and conditions set forth in the applicable
Award Agreement, or that such certificate or certificates shall be held in escrow by the Company
on behalf of the Grantee until such shares become vested or are forfeited. Except as provided in
the applicable Award Agreement, no shares of Stock underlying a Restricted Stock Award may be
assigned, transferred, or otherwise encumbered or disposed of by the Grantee until such shares of
Stock have vested in accordance with the
terms of such Award.
(D) If and to the extent that the applicable Award Agreement may so provide, a Grantee shall
have the right to vote and receive dividends on Restricted Stock granted under the Plan. Unless
otherwise provided in the applicable Award Agreement, any Stock received as a dividend on or in
connection with a stock split of the shares of Stock underlying a Restricted Stock Award shall be
subject to the same restrictions as the shares of Stock underlying such Restricted Stock Award.
(E) Upon termination of employment with or service to the Company or any Affiliate or
Subsidiary of the Company (including by reason of such Subsidiary or Affiliate ceasing to be a
Subsidiary or Affiliate of the Company), during the applicable restriction period, Restricted Stock
shall be forfeited; provided, that the Committee may provide, by rule or regulation or in any Award
Agreement, or may determine in any individual case, that restrictions or forfeiture conditions
relating to Restricted Stock will be waived in whole or in part in the event of terminations
resulting from specified causes, and the Committee may in other cases waive in whole or in part the
forfeiture of Restricted Stock.
(iii)
Other Stock-Based or Cash-Based Awards.
(A) The Committee is authorized to grant Awards to Grantees in the form of Other
Stock-Based Awards or Other Cash-Based Awards, as deemed by the Committee to be consistent with the
purposes of the Plan. The Committee shall determine the terms and conditions of such Awards,
consistent with the terms of the Plan, at the date of grant or thereafter, including the
Performance Goals and performance periods. Stock or other securities or property delivered pursuant
to an Award in the nature of a purchase right granted under Section 6(iii) shall be purchased for
such consideration, paid for at such times, by such methods, and in such forms, including, without
limitation, Stock, other Awards, notes or other property, as the Committee shall determine, subject
to any required corporate action.
(B) With respect to a Covered Employee, the maximum value of the aggregate payment that any
Grantee may receive with respect to Other Cash-Based Awards
Page A-12
pursuant to this Section 6(b)(iii) in
respect of any annual performance period is $15 million and for any other performance period in
excess of one year, such amount multiplied by a fraction, the numerator of which is the number of
months in the performance period and the denominator of which is twelve. No payment shall be made
to a Covered Employee prior to the certification by the Committee that the Performance Goals have
been attained. The Committee may establish such other rules applicable to the Other Stock- or
Cash-Based Awards to the extent not inconsistent with Section 162(m) of the Code.
(C) Payments earned in respect of any Cash-Based Award may be decreased or, with respect
to any Grantee who is not a Covered Employee, increased in the sole discretion of the Committee
based on such factors as it deems appropriate. Notwithstanding the foregoing, any Awards may be
adjusted in accordance with Section 5(b) hereof.
7.
Change in Control Provisions.
(a) Unless otherwise determined by the Committee at the time of grant or evidenced in an
applicable Award Agreement or employment or other agreement, in the event that a Grantees
employment or service is terminated by the Company without Cause or by the Grantee for Good Reason,
in each case within eighteen (18) months following a Change in Control:
(i) any Award carrying a right to exercise that was not previously vested and exercisable
shall become fully vested and exercisable and all outstanding Awards shall remain exercisable
for one (1) year following such date of termination of employment or service but in no event
beyond the original term of the Award and shall thereafter terminate; and
(ii) the restrictions, deferral limitations, payment conditions, and forfeiture conditions
applicable to any Award other than an Award described in (i) granted under the Plan shall lapse
and such Awards shall be deemed fully vested, and any performance conditions imposed with
respect to Awards shall be deemed to be achieved at the higher of (x) the target level for the
applicable performance period or (y) the level of achievement of such performance conditions for
the most recently concluded performance period.
(b) Notwithstanding the foregoing, in the event of a Change in Control, the Committee
shall have the discretion to:
(i) accelerate the vesting or payment of any Award effective immediately upon the
occurrence of a Change in Control; or
(ii) convert the vesting of performance-based Awards to a time-based vesting schedule as
deemed appropriate by the Committee;
in each case only to the extent that such action would not cause any Award to
Page A-13
result in deferred
compensation that is subject to the additional twenty percent (20%) tax under Section 409A of
the Code.
(c) A Change in Control shall be deemed to have occurred if the event set forth in any
one of the following paragraphs shall have occurred:
(i) the acquisition by an individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) (a Person) of beneficial ownership of any capital
stock of the Company if, after such acquisition, such Person beneficially owns (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) 40% or more of either (x) the
then-outstanding shares of common stock of the Company (the Outstanding Company Common Stock)
or (y) the combined voting power of the then-outstanding securities of the Company entitled to
vote generally in the election of directors (the Outstanding Company Voting Securities);
provided
,
however
, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change in Control: (A) any acquisition directly by the
Company, (B) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (C) any acquisition
by any corporation pursuant to a Business Combination (as defined below) which complies with
clauses (x) and (y) of subsection (iii) of this definition; or
(ii) such time as the Continuing Directors (as defined below) do not constitute a majority
of the Board (or, if applicable, the Board of Directors of a successor corporation to the
Company), where the term Continuing Director means at any date a member of the Board (x) who
was a member of the Board on November 9, 2006 or (y) who was nominated or elected subsequent to
such date by at least a majority of the directors who were Continuing Directors at the time of
such nomination or election or whose election to the Board was
recommended or endorsed by at least a majority of the directors who were Continuing
Directors at the time of such nomination or election;
provided
,
however
, that
there shall be excluded from this clause (y) any individual whose initial assumption of office
occurred as a result of an actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies or consents, by or on
behalf of a person other than the Board; or
(iii) the consummation of a merger, consolidation, reorganization, recapitalization or
share exchange involving the Company or a sale or other disposition of all or substantially all
of the assets of the Company in one or a series of transactions (a Business Combination),
unless, immediately following such Business Combination, each of the following two conditions is
satisfied: (x) all or substantially all of the individuals and entities who were the beneficial
owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or indirectly, more
than 60% of the then-outstanding shares of common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the election of directors,
respectively, of the resulting or acquiring corporation in
Page A-14
such Business Combination (which
shall include, without limitation, a corporation which as a result of such transaction owns the
Company or substantially all of the Companys assets either directly or through one or more
subsidiaries) (such resulting or acquiring corporation is referred to herein as the Acquiring
Corporation) in substantially the same proportions as their ownership of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, respectively, immediately prior
to such Business Combination and (y) no Person (excluding any employee benefit plan (or related
trust) maintained or sponsored by the Company or by the Acquiring Corporation) beneficially
owns, directly or indirectly, 40% or more of the then-outstanding shares of common stock of the
Acquiring Corporation, or of the combined voting power of the then-outstanding securities of
such corporation entitled to vote generally in the election of directors; or
(iv) the approval by the stockholders of the Company of the complete liquidation or
dissolution of the Company.
(d) The Committee may, in its sole discretion, provide in an Award Agreement or otherwise for
specific treatment of any outstanding Award in the event that any payment or benefit under this
Plan would be subject to the excise tax imposed by Section 4999 of the Code (the Excise Tax) or
any interest or penalties with respect to such excise tax. Such treatment may include the payment
by the Company of a gross-up payment in an amount equal to such excise tax, interest and penalties
or the imposition of a cutback in payments or benefits.
(e) Unless otherwise provided by the Committee or set forth in a Grantees Award Agreement,
notwithstanding the provisions of this Plan, in the event that any payment or benefit received or
to be received by the Grantee in connection with a Change in Control or the termination of the
Grantees employment or service (whether pursuant to the terms of this Plan or any other plan,
arrangement or agreement with the Company, any Subsidiary, any Affiliate, any Person whose actions
result in a Change in Control or any Person affiliated with the Company or such Person) (all such
payments and benefits, Total Payments) would be subject (in whole or part), to the Excise Tax,
then, after taking into account any reduction in the Total Payments provided by reason of section
280G of the Code in such other plan, arrangement or agreement, the payment or benefit to be
received by the Grantee upon a Change in Control shall be reduced to the extent necessary so that
no portion of the Total Payments is subject to the Excise Tax but only if the net amount of such
Total Payments, as so reduced (and after subtracting the net amount of federal, state and local
income taxes on such reduced Total Payments) is greater than or equal to the net
amount of such Total Payments without such reduction (but after subtracting the net amount of
federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which
the Executive would be subject in respect of such unreduced Total Payments).
8.
General Provisions.
(a)
Nontransferability, Deferrals and Settlements.
Unless otherwise
Page A-15
determined by the
Committee or provided in an Award Agreement, Awards shall not be transferable by a Grantee except
by will or the laws of descent and distribution and shall be exercisable during the lifetime of a
Grantee only by such Grantee or his guardian or legal representative. If, and to the extent, so
determined by the Committee, the Options granted under the Plan may be transferred either for or
without consideration; provided, however, that any contemplated program resulting in the transfer
of options for consideration to third parties in excess of one percent (l%) of Stock outstanding
shall be subject to shareholder approval prior to any such transfer. Any Option which is
transferable for consideration shall be counted as a Full Value Award under the Plans Share Limit.
Any Award shall be null and void and without effect upon any attempted assignment or transfer,
except as herein provided, including without limitation any purported assignment, whether voluntary
or by operation of law, pledge, hypothecation or other disposition, attachment, divorce, trustee
process or similar process, whether legal or equitable, upon such Award. The Committee may require
or permit Grantees to elect to defer the issuance of shares of Stock, or the settlement of Awards
in cash under such rules and procedures as established under the Plan to the extent that such
deferral complies with Section 409A of the Code and any regulations or guidance promulgated
thereunder. It may also provide that deferred settlements include the payment or crediting of
interest on the deferral amounts.
(b)
No Right to Continued Employment, etc.
Nothing in the Plan or in any Award granted or any
Award Agreement, promissory note or other agreement entered into pursuant hereto shall confer upon
any Grantee the right to continue in the employ or service of the Company, any Subsidiary or any
Affiliate or to be entitled to any remuneration or benefits not set forth in the Plan or such Award
Agreement, promissory note or other agreement or to interfere with or limit in any way the right of
the Company or any such Subsidiary or Affiliate to terminate such Grantees employment or service.
(c)
Taxes.
The Company or any Subsidiary or Affiliate is authorized to withhold from any Award
granted, any payment relating to an Award under the Plan, including from a distribution of Stock,
or any other payment to a Grantee, amounts of withholding and other taxes due in connection with
any transaction involving an Award, and to take such other action as the Committee may deem
advisable to enable the Company and Grantees to satisfy obligations for the payment of withholding
taxes and other tax obligations relating to any Award. This authority shall include authority to
withhold or receive Stock or other property with a Fair Market Value not in excess of the minimum
amount required to be withheld and to make cash payments in respect thereof in satisfaction of a
Grantees tax obligations.
(d)
Stockholder Approval; Amendment and Termination.
The Plan shall take effect
on the Effective Date but the Plan (and any grants of Awards made prior to the stockholder
approval mentioned herein) shall be subject to the requisite approval of the stockholders of the
Company, which approval must occur within twelve (12) months of the date that the Plan is adopted
by the Board. In the event that the stockholders of the Company do not ratify the Plan at a meeting
of the
Page A-16
stockholders at which such issue is considered and voted upon, then upon such event the Plan
and all rights hereunder shall immediately terminate and no Grantee (or any permitted transferee
thereof) shall have any remaining rights under the Plan or any Award Agreement entered into in
connection herewith. The Board or the Committee may amend, alter or discontinue the Plan, but no
amendment, alteration, or discontinuation shall be made that would impair the rights of a Grantee
under any Award theretofore granted without such Grantees consent, or that without the approval of
the stockholders (as described below) would, except as provided in Section 5, increase the total
number of shares of Stock reserved for the purpose of the Plan. In addition, stockholder approval
shall be required with respect to any amendment that materially increases benefits provided under
the Plan or materially alters the eligibility provisions of the Plan. Unless earlier terminated by
the Board pursuant to the provisions of the Plan, the Plan shall terminate on the tenth anniversary
of its Effective Date. No Awards shall be granted under the Plan after such termination date.
(e)
No Rights to Awards; No Stockholder Rights.
No Grantee shall have any claim to be granted
any Award under the Plan, and there is no obligation for uniformity of treatment of Grantees.
Except as provided specifically herein, a Grantee or a transferee of an Award shall have no rights
as a stockholder with respect to any shares covered by the Award until the date of the issuance of
a stock certificate to him for such shares.
(f)
Unfunded Status of Awards.
The Plan is intended to constitute an unfunded plan for
incentive and deferred compensation. With respect to any payments not yet made to a Grantee
pursuant to an Award, nothing contained in the Plan or any Award shall give any such Grantee any
rights that are greater than those of a general creditor of the Company.
(g)
No Fractional Shares.
No fractional shares of Stock shall be issued or delivered pursuant
to the Plan or any Award. The Committee shall determine whether cash, other Awards, or other
property shall be issued or paid in lieu of such fractional shares or whether such fractional
shares or any rights thereto shall be forfeited or otherwise eliminated.
(h)
Regulations and Other Approvals
.
(i) The obligation of the Company to sell or deliver Stock with respect to any Award
granted under the Plan shall be subject to all applicable laws, rules and regulations, including
all applicable federal and state securities laws, and the obtaining of all such approvals by
governmental agencies as may be deemed necessary or appropriate by the Company.
(ii) Each Award is subject to the requirement that, if at any time the Company determines,
in its absolute discretion, that the listing, registration or qualification of Stock issuable
pursuant to the Plan is required by any securities exchange or under any state or federal law,
or the consent or approval of any
Page A-17
governmental regulatory body is
necessary or desirable as a condition of, or in connection with, the grant of an Award or
the issuance of Stock, no such Award shall be granted or payment made or Stock issued, in whole
or in part, unless listing, registration, qualification, consent or approval has been effected
or obtained free of any conditions not acceptable to the Company.
(iii) In the event that the disposition of Stock acquired pursuant to the Plan is not
covered by a then current registration statement under the Securities Act of 1933, as amended
(the Securities Act), and is not otherwise exempt from such registration, such Stock shall be
restricted against transfer to the extent required by the Securities Act or regulations
thereunder, and the Committee may require a Grantee receiving Stock pursuant to the Plan, as a
condition precedent to receipt of such Stock, to represent to the Company in writing that the
Stock acquired by such Grantee is acquired for investment only and not with a view to
distribution.
(i)
Governing Law.
The Plan and all determinations made and actions taken pursuant hereto
shall be governed by the laws of the State of Delaware without giving effect to the conflict of
laws principles thereof.
Page A-18
EXHIBIT 10.11
FISHER SCIENTIFIC INTERNATIONAL INC.
2005 EQUITY AND INCENTIVE PLAN, AS AMENDED FOR AWARDS
GRANTED ON OR AFTER NOVEMBER 9, 2006
NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
THIS AGREEMENT
is made by and between
THERMO FISHER SCIENTIFIC INC.
, a Delaware corporation
(the Company), and [___], (Optionee), as of [___].
RECITALS
A. The Company has adopted and approved the Fisher Scientific International Inc. 2005 Equity
and Incentive Plan, as amended for awards granted on or after November 9, 2006 (the Plan), a copy
of which is attached to this Agreement; and
B. The Committee appointed to administer the Plan has determined that Optionee is eligible to
participate in the Plan and that it would be to the advantage and best interest of the Company and
its stockholders to grant the Option provided for herein to Optionee; and
C. This Agreement is prepared in conjunction with and under the terms of the Plan. Terms used
herein but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan;
and
D. Optionee has accepted the grant of the Option and agreed to the terms and conditions
hereinafter stated.
NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND OF THE PROMISES AND CONDITIONS
HEREIN CONTAINED, IT IS AGREED AS FOLLOWS:
ARTICLE I
GRANT OF OPTION
Section 1.1 Grant of Option.
Subject to the provisions of this Agreement, the provisions of the Plan, the provisions of the
Companys current agreement relating to intellectual property, confidential information,
competitive activities, non-solicitation and dispute resolution in effect at the time between the
Company and [ ], the Company has granted
effective [___] (the Grant Date)
to Optionee the right and option to purchase all or any part of [ ] shares of common stock,
par value $1.00 per share (Stock), of the Company. The Option granted pursuant to this Agreement
is not intended to qualify as an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the Code).
Section 1.2 Exercise Price.
The exercise price of the Option shall be
$
[ ] per share of Stock subject to the Option.
ARTICLE II
VESTING AND EXERCISABILITY
Section 2.1 Vesting and Exercisability.
(i) Vesting Schedule. Except as otherwise provided herein or in the Plan, the Option shall
become 100 percent vested three years from the date of grant, if Optionee has continuously provided
services to the Company, a Subsidiary or Affiliate or has been continuously employed by the
Company, a Subsidiary or Affiliate until such date. Prior to becoming 100 percent vested, the
Option shall become exercisable in three cumulative installments as follows and shall remain
exercisable until the seventh anniversary of the date of grant (the Option Term), subject to the
forfeiture provisions set forth in Section 2.2(a):
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Date First Available
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Number of Shares
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For Exercise
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(ii) Accelerated Vesting. If the Optionees employment or service terminates because of
Optionees death or Disability during the Option Term, the Option shall become 100 percent vested
and exercisable (regardless of the extent to which such Option was then vested) as of the date of
termination of the Optionees employment or service.
Section 2.2
Expiration of Option.
(a) Except as set forth herein or in subsections (b), (c), (d) or (e) below, an Option may not
be exercised unless the Optionee is then in the employ of, maintains an independent contractor
relationship with, or is a director of, the Company or a Subsidiary
or an Affiliate (or a company
or a parent or subsidiary company of such company issuing or assuming the Option in a transaction
to which Section 424(a) of the Code applies), and unless the Optionee has remained continuously so
employed, or continuously maintained such relationship, since the date of grant of the Option.
(b) If the Optionees employment or service terminates because of Optionees death or
Disability, all of the Optionees Options (regardless of the extent to which such Options are then
exercisable) shall be exercisable as of such date of termination and remain outstanding until the
earlier of (i) one (1) year from the date of termination or (ii) the expiration of the term of the
Option.
(c) If the Optionees employment or service terminates upon the Optionees retirement from the
Company or a Subsidiary or an Affiliate prior to the expiration of the term of
the Option then, subject to Section 2.2(e) below, this option shall vest and become 100%
exercisable upon the date of such retirement and the right to exercise this option shall terminate
eighteen months following such date (but in no event after the expiration of the term of the
Option),
provided
that the retirement date occurs at least one year after the date of
grant. For the purposes of this Agreement, an Optionee shall be deemed to have retired (i) in
the event of a non-employee director of the Company, when he or she ceases to be a director of the
Company and (ii) in the event of an employee of the Company or a Subsidiary or an Affiliate, upon
his or her resignation from employment with the Company or a Subsidiary or an Affiliate either (A)
after the age of 55 and the completion of 10 continuous years of service to the Company or a
Subsidiary or an Affiliate comprising at least 20 hours per week or (B) after the age of 60 and the
completion of 5 continuous years of service to the Company or a Subsidiary or an Affiliate
comprising at least 20 hours per week.
(d) If the Optionees employment or service is terminated for Cause, all vested and unvested
outstanding Options granted to such Optionee shall terminate on the date of the Optionees
termination of employment or service.
(e) If the Optionees employment or service with the Company and its Affiliates and
Subsidiaries terminates (including by reason of the Affiliate or Subsidiary which employs the
Optionee ceasing to be an Affiliate or Subsidiary of the Company) other than as described in
subsections (b), (c) and (d) above, the portions of outstanding Options granted to the Optionee
that are exercisable as of the date of such termination of employment or service shall remain
exercisable until the earlier of (i) three (3) months following the date of such termination of
employment or service and (ii) expiration of the term of the Option and shall thereafter terminate.
All additional portions of outstanding Options granted to such Optionee which are not exercisable
as of the date of such termination of employment or service, shall terminate upon the date of such
termination of employment or service.
ARTICLE III
EXERCISE OF OPTION
Section 3.1 Manner of Exercise.
(a) The Option, to the extent then vested and exercisable, shall be exercisable by delivery to
the Company of a notice in form acceptable to the Company stating the number of shares as to which
the Option is exercised pursuant to this Agreement and a designation of the method of payment of
the exercise price with respect to Stock to be purchased.
(b) The exercise price of the Option, or portion thereof, with respect to Stock to be
purchased, shall be paid in full at the time of exercise; payment may be made in cash, which may be
paid by check, or other instrument or in any other manner acceptable to the Company. In addition,
any amount necessary to satisfy applicable federal, state or local tax requirements shall be paid
promptly upon notification of the amount due. The Company may permit, in its sole discretion, such
amounts to be paid in Stock previously owned by the employee, or a portion of Stock that otherwise
would be distributed to such employee upon exercise of the Option, or a combination of cash and
such Stock.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Transferability of Option.
Unless the Committee determines otherwise, the Option is nontransferable except by will or the
laws of descent and distribution.
Section 4.2 Taxes and Withholdings.
Not later than the date of exercise of the Option granted hereunder, Optionee shall pay to the
Company or make arrangements satisfactory to the Company regarding payment of any federal, state or
local taxes of any kind required by law to be withheld upon the exercise of such Option. The
Company shall, to the extent permitted or required by law, have the right to deduct from any
payment of any kind otherwise due to Optionee any obligations due to the Company and federal,
state, and local taxes of any kind required by law to be withheld upon the exercise of such option.
Section 4.3 Restrictive Covenants.
If the Optionee engages in any conduct in breach of any noncompetition, nonsolicitation
or confidentiality obligations to the Company under any agreement, policy or plan (including the
Companys current agreement relating to intellectual property, confidential information,
competitive activities, non-solicitation and dispute resolution in effect at the time), then such
conduct shall also be deemed to be a breach of
the terms of the Plan and this Agreement. Upon such
breach the Option shall be cancelled and, if and to the extent the Option was exercised within a
period of 12 months prior to such breach, the Optionee shall be required to return to the Company,
upon demand, any cash or equity acquired by Optionee upon such exercise or sale.
Section 4.4 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Delaware. The Committee shall have final authority to interpret and construe the Plan and this
Agreement and to make any and all determinations under them, and its decision shall be binding and
conclusive upon the Optionee and the Optionees legal representative in respect of any questions
arising under the Plan or this Agreement.
Section 4.5 Effect of Agreement.
Except as otherwise provided hereunder, this Agreement shall be binding upon and shall inure
to the benefit of any successor or successors of the Company.
Section 4.6 Conflicts and Interpretations.
In the event of any ambiguity in this Agreement, any term which is not defined in this
Agreement or any matters as to which this Agreement is silent, the Plan shall govern.
Section 4.7 Amendment.
This Agreement may not be amended in any manner except by an instrument in writing signed by
both parties hereto. The waiver by either party of compliance with any provision of this Agreement
shall not operate or be construed as a waiver of any other provision of this Agreement or of any
subsequent breach of such party of a provision of this Agreement.
(Remainder of page intentionally left blank)
IN WITNESS WHEREOF
, the Company has caused this Agreement to be executed on its behalf by
a duly authorized officer and Optionee has hereunto set Optionees hand.
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THERMO FISHER SCIENTIFIC INC.
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BY:
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Signature of Optionee:
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[ ]
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Social Security Number
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EXHIBIT
10.16
[Text that appears in brackets should be added to the agreement as appropriate.]
THERMO FISHER SCIENTIFIC INC.
RESTRICTED STOCK AGREEMENT
Granted Under
[
NAME OF EQUITY INCENTIVE PLAN
]
1.
Award of Restricted Shares
.
This agreement sets forth the terms and conditions of an award by Thermo Fisher Scientific
Inc., a Delaware corporation (the Company), on
, 200[ ] (the Award Date) to
(the Participant) of ___shares (the Restricted Shares) of common
stock, $1.00 par value, of the Company (Common Stock) pursuant to the terms, conditions and
restrictions set forth in this Agreement and in the Companys 2005
[
Name of Equity Incentive Plan
]
(the Plan). Capitalized terms used in this Agreement and not otherwise defined shall have the
same meaning as in the Plan.
2.
Vesting Schedule
.
Except as otherwise provided in
paragraphs (b) through (d) of Section 3, the restrictions set
forth in this Agreement shall lapse and the Restricted Shares shall
.
[
The
vesting of Restricted Shares shall be in accordance with the provision of the Plan. For a
Restricted Stock Award that vests based solely on the passage of time, insert the following in the
blank above: vest as to [
]
% of the original number of Restricted Shares on the
[___] anniversary of the Award Date and as to an additional [
]
% of the original
number of Restricted Shares at the end of [each] anniversary of the Award Date following the first
anniversary of the Award Date until the [
] anniversary of the Award Date (the Final
Vesting Date)]
;
provided
, that on each such date the Participant is, and has been at all
times since the Award Date, an employee, officer or director of, or consultant or advisor to, the
Company or any other entity the employees, officers, directors, consultants, or advisors of which
are eligible to receive restricted stock awards under the Plan (an Eligible Participant).
3.
Forfeiture
.
(a)
Termination of Relationship with the Company
. In the event that the Participant
ceases to be an Eligible Participant for any reason other than those set forth in paragraphs (b)
through (d) below prior to the Final Vesting Date, the Restricted Shares that have not previously
vested shall be immediately forfeited to the Company.
(b)
Death or Disability
. In the event that the Participants employment with the
Company or a Subsidiary is terminated by reason of death or disability (as defined below) prior
to the Final Vesting Date, the Restricted Shares that have not previously vested shall vest 100%
upon the date of such death or disability. For the purposes of this Agreement, a
Participant shall be deemed to be disabled at such time as the Participant is receiving
disability benefits under the Companys Long Term Disability Coverage, as then in effect.
(c)
Discharge by the Company other than for Cause
. In the event that the
Participants employment with the Company or a Subsidiary, as the case may be, is terminated by the
Company or such Subsidiary other than for Cause (as defined in the Plan) or by the Participant
for Good Reason, in each case, within 18 months of a Change in Control Event, the Restricted
Shares that have not previously vested shall vest 100% upon the effective date of such termination.
(d)
Retirement
. If the Participant retires from the Company or a Subsidiary prior
to the Final Vesting Date, the Restricted Shares that have not previously vested shall vest 100%
upon the effective date of such retirement,
provided
that the retirement date occurs at
least one year after the Award Date. For the purposes of this Agreement, a Participant shall be
deemed to have retired upon his or her resignation from employment with the Company or a
Subsidiary either (i) after the age of 55 and the completion of 10 continuous years service to the
Company or a Subsidiary comprising at least 20 hours per week or (ii) after the age of 60 and the
completion of 5 continuous years service to the Company or a Subsidiary comprising at least 20
hours per week.
4.
Restrictions on Transfer
.
The Restricted Shares may not be sold, assigned, transferred, pledged, or otherwise encumbered
or disposed of except by will or laws of descent and distribution unless and until such Restricted
Shares shall have vested as provided in this Agreement and in the Plan. Notwithstanding the
foregoing, the Company consents to the gratuitous transfer of the Restricted Shares that have not
vested to or for the benefit of any immediate family member, family trust or family partnership
established solely for the benefit of the Participant and/or an immediate family member;
provided
that with respect to such proposed transferee the Company would be eligible to use
a Form S-8 for the registration of the sale of Common Stock constituting the Restricted Shares
under the Securities Act of 1933, as amended; and
provided
further
that such
Restricted Shares shall remain subject to the terms and conditions of this Agreement (including
without limitation forfeiture and restrictions on transfer) and the Company shall not be required
to recognize any such transfer until such time as the Participant and the permitted transferee
shall, as a condition to such transfer, deliver to the Company a written instrument in form and
substance satisfactory to the Company confirming that such transferee shall be bound by all of the
terms and conditions of this Agreement.
5.
Escrow
.
(a)
Appointment
. The Participant irrevocably authorizes the Company to deposit with
the Secretary of the Company (in such capacity, the Escrow Agent) any certificates evidencing
Restricted Shares, to be held by the Escrow Agent hereunder, and any additions and substitutions to
said Restricted Shares. For purposes of this Section 5, Restricted Shares shall be deemed to
include any additional or substitute property. The Participant does hereby irrevocably constitute
and appoint the Escrow Agent as his or her attorney-in-fact and agent for the term of this escrow
to execute with respect to such Restricted Shares all documents necessary
- 2 -
or appropriate to make such Restricted Shares negotiable and to complete any transaction
herein contemplated. Subject to the terms of this Agreement, the Participant shall exercise all
rights and privileges of a stockholder of the Company while the Restricted Shares are held by the
Escrow Agent. The Participant shall, upon request of the Escrow Agent, deliver to the Escrow Agent
a stock assignment duly endorsed in blank, in the form provided by the Company, and hereby
instructs the Company to deliver to the Escrow Agent, on behalf of the Participant, the
certificate(s) evidencing the Restricted Shares.
(b)
Withdrawal
. The Participant shall have the right to withdraw from escrow any
Restricted Shares that have vested (as provided in this Agreement).
(c)
Duties of Escrow Agent
.
The Escrow Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or refraining from
acting on any instrument reasonably believed by him to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall not be personally liable for any
act he may do or omit to do hereunder as Escrow Agent or as attorney-in-fact of the Participant
while acting in good faith and in the exercise of his good judgment. The Escrow Agent is hereby
expressly authorized to disregard any and all warnings given by any of the parties or by any other
person or entity, excepting only orders or process of courts of law, and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. If the Escrow Agent
is uncertain of any actions to be taken or instructions to be followed, he may refuse to act in the
absence of an order, judgment or decrees of a court. In case the Escrow Agent obeys or complies
with any such order, judgment or decree of any court, he shall not be liable to any of the parties
or to any other person or entity, by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to
have been entered without jurisdiction. The Escrow Agent shall not be liable in any respect on
account of the identity, authority or rights of the parties executing or delivering or purporting
to execute or deliver this Agreement or any documents or papers deposited or called for hereunder.
It is understood and agreed that if the Escrow Agent believes a dispute has arisen with respect to
the delivery and/or ownership or right of possession of the securities held by him hereunder, the
Escrow Agent is authorized and directed to retain in his possession without liability to anyone all
or any part of said securities until such dispute shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree or judgment of a court of competent
jurisdiction after the time for appeal has expired and no appeal has been perfected, but he shall
be under no duty whatsoever to institute or defend any such proceedings. The Escrow Agents rights
and responsibilities as Escrow Agent shall terminate if he ceases to be Secretary of the Company,
in which case the successor as Secretary of the Company shall become Escrow Agent hereunder.
6.
Restrictive Legends
.
(a)
Legended Certificates
. All certificates representing unvested Restricted Shares
shall have affixed thereto legends in substantially the following form, in addition to any other
legends that may be required under federal or state securities laws:
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THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS (INCLUDING FORFEITURE AND RESTRICTION ON TRANSFER) OF THE ISSUERS STOCK
INCENTIVE PLAN AND A RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER AND THE
REGISTERED OWNER OF THESE SHARES (OR HIS OR HER PREDECESSOR IN INTEREST). COPIES OF
SUCH PLAN AND AGREEMENT ARE AVAILABLE FOR INSPECTION WITHOUT CHARGE AT THE OFFICE OF
THE SECRETARY OF THE ISSUER.
(b)
Book Entry
. If unvested Restricted Shares are held in book entry form, the
Participant agrees that the Company may give stop transfer instructions to the depository to ensure
compliance with the provisions of this Agreement. The Participant hereby (i) acknowledges that the
unvested Restricted Shares may be held in book entry form on the books of the Companys depository
(or another institution specified by the Company), and irrevocably authorizes the Company to take
such actions as may be necessary or appropriate to effectuate a transfer of the record ownership of
any such shares that are unvested and forfeited hereunder, (ii) agrees to deliver to the Company,
as a precondition to the issuance of any certificate or certificates with respect to unvested
Restricted Shares, one or more stock powers, endorsed in blank, with respect to such shares, and
(iii) agrees to sign such other powers and take such other actions as the Company may reasonably
request to accomplish the transfer or forfeiture of any unvested Restricted Shares that are
forfeited hereunder.
7.
Unrestricted Shares
.
As soon as practicable following the vesting of any Restricted Shares the Company shall cause
a certificate or certificates covering such shares, without the legend contained in Section 6(a) of
this Agreement, to be issued and delivered to the Participant, subject to the payment by the
Participant by cash or other means acceptable to the Company of any federal, state, local and other
applicable taxes required to be withheld in connection with such vesting. The Participant
understands that once a certificate has been delivered to the Participant in respect of Restricted
Shares which have vested, the Participant will be free to sell the shares of Common Stock evidenced
by such certificate, subject to applicable requirements of federal and state securities laws.
8.
Provisions of the Plan
.
This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the
Participant with this Agreement.
9.
Dividends and Voting Rights
.
The Participant shall be entitled to any and all dividends or other distributions paid with
respect to the Restricted Shares which have not been forfeited or otherwise disposed of and shall
be entitled to vote any such Restricted Shares;
provided,
however
,
that any
property (other than cash) distributed with respect to the Restricted Shares, including without
limitation a distribution of shares of the Companys stock by reason of a stock dividend, stock
split or otherwise, or a distribution of other securities based on the ownership of Restricted
Shares, shall be subject to
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the restrictions of this Restricted Stock Agreement in the same manner and for so long as the
Restricted Shares remain subject to such restrictions, and shall be forfeited to the Company if and
when the Restricted Shares are so forfeited.
10.
Withholding Taxes; Section 83(b) Election
.
(a) The Participant expressly acknowledges that the award of the Restricted Shares to the
Participant or the vesting thereof will give rise to wages subject to withholding. The
Participant expressly acknowledges and agrees that the Participants rights hereunder are subject
to the Participant s paying to the Company in cash (or by the delivery of previously acquired
shares of Common Stock or by having the Company hold back from the shares to be delivered, shares
of Common Stock having a Fair Market Value calculated to satisfy the withholding requirement) all
federal, state, local and any other applicable taxes required to be withheld in connection with
such award or vesting;
provided
,
however
, except as otherwise provided by the
Board, the total tax withholding where stock is being used to satisfy such tax obligations cannot
exceed the Companys minimum statutory withholding obligations (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes, that are applicable
to such supplemental taxable income). If the withholding obligation is not satisfied by the
Participant promptly, the Participant acknowledges and agrees that the Company has the right
(without further consent from the Participant) to deduct any federal, state or local taxes of any
kind required by law to be withheld with respect to the award of the Restricted Shares to the
Participant or the vesting thereof from payments of any kind otherwise due to the Participant
(including but not limited to, the hold back from the shares to be delivered pursuant to Section 7
of this Agreement of that number of shares calculated to satisfy all such federal, state, local or
other applicable taxes required to be withheld in connection with such award or vesting).
(b) The Participant has reviewed with the Participants own tax advisors the federal, state,
local and foreign tax consequences of this investment and the transactions contemplated by this
Agreement. The Participant is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participants own tax liability that
may arise as a result of this investment or the transactions contemplated by this Agreement. The
Participant understands that it may be beneficial in some circumstances to elect to be taxed at the
time the Restricted Shares are awarded rather than when and as the restrictions thereon lapse by
filing an election under Section 83(b) of the Code with the I.R.S. within 30 days from the date of
award.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANTS SOLE RESPONSIBILITY AND NOT THE
COMPANYS TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE
COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANTS BEHALF.
11.
No Right To Employment or Other Status
. The grant of an award of Restricted Shares
shall not be construed as giving the Participant the right to continued employment or any other
relationship with the Company or a Subsidiary. The Company and Subsidiaries expressly reserve the
right at any time to dismiss or otherwise terminate its relationship with the Participant
- 5 -
free from any liability or claim under the Plan or this Agreement, except as expressly provided
herein.
12.
Governing Law
. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Delaware without regard to any applicable conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
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THERMO FISHER SCIENTIFIC INC.
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By:
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Title:
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Address:
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[Name of Participant]
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Address:
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- 6 -
EXHIBIT 10.18
THERMO FISHER SCIENTIFIC INC.
RESTRICTED STOCK AGREEMENT
Granted Under
2005 Stock Incentive Plan,
as amended and restated on November 9, 2006
1.
Award of Restricted Shares.
This agreement sets forth the terms and conditions of an award by Thermo Fisher
Scientific Inc., a Delaware corporation (the Company), on November 9, 2006 (the Award Date) to
Marc N. Casper (the Participant) of 21,600 shares (the Restricted Shares) of common stock,
$1.00 par value, of the Company (Common Stock) pursuant to the terms, conditions and restrictions
set forth in this Agreement and in the Companys 2005 Stock Incentive Plan, as amended and restated
on November 9, 2006, (the Plan). Capitalized terms used in this Agreement and not otherwise
defined shall have the same meaning as in the Plan.
2.
Vesting Schedule.
Except as otherwise provided in paragraphs (b) through (e) of Section 3, the restrictions
set forth in this Agreement shall lapse and the Restricted Shares shall vest as to 33.3% of the
original number of Restricted Shares on the first anniversary of the Award Date and as to an
additional 33.3% of the original number of Restricted Shares at the end of each anniversary of the
Award Date following the first anniversary of the Award Date until the third anniversary of the
Award Date (the Final Vesting Date);
provided
, that on each such date the Participant is,
and has been at all times since the Award Date, an employee, officer or director of, or consultant
or advisor to, the Company or any other entity the employees, officers, directors, consultants, or
advisors of which are eligible to receive restricted stock awards under the Plan (an Eligible
Participant).
3.
Forfeiture.
(a)
Termination of Relationship with the Company.
In the event that the
Participant ceases to be an Eligible Participant for any reason other than those set forth in
paragraphs (b) through (e) below prior to the Final Vesting Date, the Restricted Shares that have
not previously vested shall be immediately forfeited to the Company.
(b)
Death or Disability
. In the event that the Participants employment with the
Company or a Subsidiary is terminated by reason of death or disability (as defined below) prior
to the Final Vesting Date, the Restricted Shares that have not previously vested shall vest 100%
upon the date of such death or disability. For the purposes of this Agreement, a Participant shall
be deemed to be disabled at such time as the Participant is receiving disability benefits under
the Companys Long Term Disability Coverage, as then in effect.
(c)
Discharge by the Company other than for Cause
. In the event that the
Participants employment with the Company or a Subsidiary, as the case may be, is terminated by the
Company or such Subsidiary other than for Cause (as defined in the Plan), the Restricted Shares
that have not previously vested shall vest 100% upon the effective date of such termination.
(d)
Change in Control Event
. In the event that the Participants employment with the
Company or a Subsidiary, as the case may be, is terminated by the Participant for Good Reason (as
defined in the Plan) within 18 months of a Change in Control Event, the Restricted Shares that have
not previously vested shall vest 100% upon the effective date of such termination.
(e)
Retirement
. If the Participant retires from the Company or a Subsidiary prior
to the Final Vesting Date, the Restricted Shares that have not previously vested shall vest 100%
upon the effective date of such retirement,
provided
that the retirement date occurs at
least one year after the Award Date. For the purposes of this Agreement, a Participant shall be
deemed to have retired upon his or her resignation from employment with the Company or a
Subsidiary either (i) after the age of 55 and the completion of 10 continuous years service to the
Company or a Subsidiary comprising at least 20 hours per week or (ii) after the age of 60 and the
completion of 5 continuous years service to the Company or a Subsidiary comprising at least 20
hours per week.
4.
Restrictions on Transfer.
The Restricted Shares may not be sold, assigned, transferred, pledged, or otherwise
encumbered or disposed of except by will or laws of descent and distribution unless and until such
Restricted Shares shall have vested as provided in this Agreement and in the Plan. Notwithstanding
the foregoing, the Company consents to the gratuitous transfer of the Restricted Shares that have
not vested to or for the benefit of any immediate family member, family trust or family partnership
established solely for the benefit of the Participant and/or
an immediate family member;
provided
that with respect to such proposed transferee the
Company would be eligible to use a Form S-8 for the registration of the sale of Common Stock
constituting the Restricted Shares under the Securities Act of 1933, as amended; and
provided
further
that such Restricted Shares shall remain subject to the terms and
conditions of this Agreement (including without limitation forfeiture and restrictions on transfer)
and the Company shall not be required to recognize any such transfer until such time as the
Participant and the permitted transferee shall, as a condition to such transfer, deliver to the
Company a written instrument in form and substance satisfactory to the Company confirming that such
transferee shall be bound by all of the terms and conditions of this Agreement.
5.
Escrow.
(a)
Appointment
. The Participant irrevocably authorizes the Company to deposit
with the Secretary of the Company (in such capacity, the Escrow Agent) any certificates
evidencing Restricted Shares, to be held by the Escrow Agent hereunder, and any additions and
substitutions to said Restricted Shares. For purposes of this Section 5, Restricted Shares shall
be deemed to include any additional or substitute property. The Participant does hereby
- 2 -
irrevocably constitute and appoint the Escrow Agent as his or her attorney-in-fact and agent for
the term of this escrow to execute with respect to such Restricted Shares all documents necessary
or appropriate to make such Restricted Shares negotiable and to complete any transaction herein
contemplated. Subject to the terms of this Agreement, the Participant shall exercise all rights
and privileges of a stockholder of the Company while the Restricted Shares are held by the Escrow
Agent. The Participant shall, upon request of the Escrow Agent, deliver to the Escrow Agent a
stock assignment duly endorsed in blank, in the form provided by the Company, and hereby instructs
the Company to deliver to the Escrow Agent, on behalf of the Participant, the certificate(s)
evidencing the Restricted Shares.
(b)
Withdrawal
. The Participant shall have the right to withdraw from escrow any
Restricted Shares that have vested (as provided in this Agreement).
(c)
Duties of Escrow Agent
.
The Escrow Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or refraining from
acting on any instrument reasonably believed by him to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall not be personally liable for any
act he may do or omit to do hereunder as Escrow Agent or as attorney-in-fact of the Participant
while acting in good faith and in the exercise of his good judgment. The Escrow Agent is hereby
expressly authorized to disregard any and all warnings given by any of the parties or by any other
person or entity, excepting only orders or process of courts of law, and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. If the Escrow Agent
is uncertain of any actions to be taken or instructions to be followed, he may refuse to act in the
absence of an order, judgment or decrees of a court. In case the Escrow Agent obeys or complies
with any such order, judgment or decree of any court, he shall not be liable to any of the parties
or to any other person or entity, by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to
have been entered without jurisdiction. The Escrow Agent shall not be liable in any respect on
account of the identity, authority or rights of the parties executing or delivering or purporting
to execute or deliver this Agreement or any documents or papers deposited or called for hereunder.
It is understood and agreed that if the Escrow Agent believes a dispute has arisen with respect to
the delivery and/or ownership or right of possession of the securities held by him hereunder, the
Escrow Agent is authorized and directed to retain in his possession without liability to anyone all
or any part of said securities until such dispute shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree or judgment of a court of competent
jurisdiction after the time for appeal has expired and no appeal has been perfected, but he shall
be under no duty whatsoever to institute or defend any such proceedings. The Escrow Agents rights
and responsibilities as Escrow Agent shall terminate if he ceases to be Secretary of the Company,
in which case the successor as Secretary of the Company shall become Escrow Agent hereunder.
- 3 -
6.
Restrictive Legends.
(a)
Legended Certificates
. All certificates representing unvested Restricted
Shares shall have affixed thereto legends in substantially the following form, in addition to any
other legends that may be required under federal or state securities laws:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS (INCLUDING FORFEITURE AND RESTRICTION ON TRANSFER) OF THE ISSUERS STOCK
INCENTIVE PLAN AND A RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER AND THE
REGISTERED OWNER OF THESE SHARES (OR HIS OR HER PREDECESSOR IN INTEREST). COPIES OF
SUCH PLAN AND AGREEMENT ARE AVAILABLE FOR INSPECTION WITHOUT CHARGE AT THE OFFICE OF
THE SECRETARY OF THE ISSUER.
(b)
Book Entry
. If unvested Restricted Shares are held in book entry form, the
Participant agrees that the Company may give stop transfer instructions to the depository to ensure
compliance with the provisions of this Agreement. The Participant hereby (i) acknowledges that the
unvested Restricted Shares may be held in book entry form on the books of the Companys depository
(or another institution specified by the Company), and irrevocably authorizes the Company to take
such actions as may be necessary or appropriate to effectuate a transfer of the record ownership of
any such shares that are unvested and forfeited hereunder, (ii) agrees to deliver to the Company,
as a precondition to the issuance of any certificate or certificates with respect to unvested
Restricted Shares, one or more stock powers, endorsed in blank, with respect to such shares, and
(iii) agrees to sign such other powers and take such other actions as the Company may reasonably
request to accomplish the transfer or forfeiture of any unvested Restricted Shares that are
forfeited hereunder.
7.
Unrestricted Shares
.
As soon as practicable following the vesting of any Restricted Shares the Company shall cause
a certificate or certificates covering such shares, without the legend contained in Section 6(a) of
this Agreement, to be issued and delivered to the Participant, subject to the payment by the
Participant by cash or other means acceptable to the Company of any federal, state, local and other
applicable taxes required to be withheld in connection with such vesting. The Participant
understands that once a certificate has been delivered to the Participant in respect of Restricted
Shares which have vested, the Participant will be free to sell the shares of Common Stock evidenced
by such certificate, subject to applicable requirements of federal and state securities laws.
8.
Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of which is furnished to
the Participant with this Agreement.
- 4 -
9.
Dividends and Voting Rights
.
The Participant shall be entitled to any and all dividends or other distributions paid with
respect to the Restricted Shares which have not been forfeited or otherwise disposed of and shall
be entitled to vote any such Restricted Shares;
provided,
however
,
that any
property (other than cash) distributed with respect to the Restricted Shares, including without
limitation a distribution of shares of the Companys stock by reason of a stock dividend, stock
split or otherwise, or a distribution of other securities based on the ownership of Restricted
Shares, shall be subject to the restrictions of this Restricted Stock Agreement in the same manner
and for so long as the Restricted Shares remain subject to such restrictions, and shall be
forfeited to the Company if and when the Restricted Shares are so forfeited.
10.
Withholding Taxes; Section 83(b) Election.
(a) The Participant expressly acknowledges that the award of the Restricted Shares to the
Participant or the vesting thereof will give rise to wages subject to withholding. The
Participant expressly acknowledges and agrees that the Participants rights hereunder are subject
to the Participant s paying to the Company in cash (or by the delivery of previously acquired
shares of Common Stock or by having the Company hold back from the shares to be delivered, shares
of Common Stock having a Fair Market Value calculated to satisfy the withholding requirement) all
federal, state, local and any other applicable taxes required to be withheld in connection with
such award or vesting;
provided
,
however
, except as otherwise provided by the
Board, the total tax withholding where stock is being used to satisfy such tax obligations cannot
exceed the Companys minimum statutory withholding obligations (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes, that are applicable
to such supplemental taxable income). If the withholding obligation is not satisfied by the
Participant promptly, the Participant acknowledges and agrees that the Company has the right
(without further consent from the Participant) to deduct any federal, state or local taxes of any
kind required by law to be withheld with respect to the award of the Restricted Shares to the
Participant or the vesting thereof from payments of any kind otherwise due to the Participant
(including but not limited to, the hold back from the shares to be delivered pursuant to Section 7
of this Agreement of that number of shares calculated to satisfy all such federal, state, local or
other applicable taxes required to be withheld in connection with such award or vesting).
(b) The Participant has reviewed with the Participants own tax advisors the federal, state, local
and foreign tax consequences of this investment and the transactions contemplated by this
Agreement. The Participant is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participants own tax liability that
may arise as a result of this investment or the transactions contemplated by this Agreement. The
Participant understands that it may be beneficial in some circumstances to elect to be taxed at the
time the Restricted Shares are awarded rather than when and as the restrictions thereon lapse by
filing an election under Section 83(b) of the Code with the I.R.S. within 30 days from the date of
award.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANTS SOLE RESPONSIBILITY AND NOT THE
COMPANYS TO FILE TIMELY THE ELECTION
- 5 -
UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE
COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANTS BEHALF.
11.
No Right To Employment or Other Status
. The grant of an award of Restricted Shares
shall not be construed as giving the Participant the right to continued employment or any other
relationship with the Company or a Subsidiary. The Company and Subsidiaries expressly reserve the
right at any time to dismiss or otherwise terminate its relationship with the Participant free from
any liability or claim under the Plan or this Agreement, except as expressly provided herein.
12.
Governing Law
. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Delaware without regard to any applicable conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
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THERMO FISHER SCIENTIFIC INC.
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By:
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/s/ Steve Sheehan
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Title:
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Senior
Vice President, Human Resources
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Address:
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/s/ Marc N. Casper
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Marc N. Casper
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Address:
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- 6 -
EXHIBIT 10.19
THERMO FISHER SCIENTIFIC INC.
RESTRICTED STOCK AGREEMENT
Granted Under
2005 Stock Incentive Plan,
as amended and restated on November 9, 2006
1.
Award of Restricted Shares
.
This agreement sets forth the terms and conditions of an award by Thermo Fisher Scientific
Inc., a Delaware corporation (the Company), on November 9, 2006 (the Award Date) to Guy
Broadbent (the Participant) of 13,000 shares (the Restricted Shares) of common stock, $1.00 par
value, of the Company (Common Stock) pursuant to the terms, conditions and restrictions set forth
in this Agreement and in the Companys 2005 Stock Incentive Plan, as amended and restated on
November 9, 2006, (the Plan). Capitalized terms used in this Agreement and not otherwise
defined shall have the same meaning as in the Plan.
2.
Vesting Schedule
.
Except as otherwise provided in paragraphs (b) through (e) of Section 3, the restrictions set
forth in this Agreement shall lapse and the Restricted Shares shall vest as to 33.3% of the
original number of Restricted Shares on the first anniversary of the Award Date and as to an
additional 33.3% of the original number of Restricted Shares at the end of each anniversary of the
Award Date following the first anniversary of the Award Date until the third anniversary of the
Award Date (the Final Vesting Date);
provided
, that on each such date the Participant is,
and has been at all times since the Award Date, an employee, officer or director of, or consultant
or advisor to, the Company or any other entity the employees, officers, directors, consultants, or
advisors of which are eligible to receive restricted stock awards under the Plan (an Eligible
Participant).
3.
Forfeiture
.
(a)
Termination of Relationship with the Company
. In the event that the Participant
ceases to be an Eligible Participant for any reason other than those set forth in paragraphs (b)
through (e) below prior to the Final Vesting Date, the Restricted Shares that have not previously
vested shall be immediately forfeited to the Company.
(b)
Death or Disability
. In the event that the Participants employment with the
Company or a Subsidiary is terminated by reason of death or disability (as defined below) prior
to the Final Vesting Date, the Restricted Shares that have not previously vested shall vest 100%
upon the date of such death or disability. For the purposes of this Agreement, a
Participant shall be deemed to be disabled at such time as the Participant is receiving
disability benefits under the Companys Long Term Disability Coverage, as then in effect.
(c)
Discharge by the Company other than for Cause
. In the event that the
Participants employment with the Company or a Subsidiary, as the case may be, is terminated by the
Company or such Subsidiary other than for Cause (as defined in the Plan), the Restricted Shares
that have not previously vested shall vest 100% upon the effective date of such termination.
(d)
Change in Control Event
. In the event that the Participants employment with the
Company or a Subsidiary, as the case may be, is terminated by the Participant for Good Reason (as
defined in the Plan) within 18 months of a Change in Control Event, the Restricted Shares that have
not previously vested shall vest 100% upon the effective date of such termination.
(e)
Retirement
. If the Participant retires from the Company or a Subsidiary prior
to the Final Vesting Date, the Restricted Shares that have not previously vested shall vest 100%
upon the effective date of such retirement,
provided
that the retirement date occurs at
least one year after the Award Date. For the purposes of this Agreement, a Participant shall be
deemed to have retired upon his or her resignation from employment with the Company or a
Subsidiary either (i) after the age of 55 and the completion of 10 continuous years service to the
Company or a Subsidiary comprising at least 20 hours per week or (ii) after the age of 60 and the
completion of 5 continuous years service to the Company or a Subsidiary comprising at least 20
hours per week.
4.
Restrictions on Transfer
.
The Restricted Shares may not be sold, assigned, transferred, pledged, or otherwise encumbered
or disposed of except by will or laws of descent and distribution unless and until such Restricted
Shares shall have vested as provided in this Agreement and in the Plan. Notwithstanding the
foregoing, the Company consents to the gratuitous transfer of the Restricted Shares that have not
vested to or for the benefit of any immediate family member, family trust or family partnership
established solely for the benefit of the Participant and/or an immediate family member;
provided
that with respect to such proposed transferee the Company would be eligible to use
a Form S-8 for the registration of the sale of Common Stock constituting the Restricted Shares
under the Securities Act of 1933, as amended; and
provided
further
that such
Restricted Shares shall remain subject to the terms and conditions of this Agreement (including
without limitation forfeiture and restrictions on transfer) and the Company shall not be required
to recognize any such transfer until such time as the Participant and the permitted transferee
shall, as a condition to such transfer, deliver to the Company a written instrument in form and
substance satisfactory to the Company confirming that such transferee shall be bound by all of the
terms and conditions of this Agreement.
5.
Escrow
.
(a)
Appointment
. The Participant irrevocably authorizes the Company to deposit with
the Secretary of the Company (in such capacity, the Escrow Agent) any certificates
evidencing Restricted Shares, to be held by the Escrow Agent hereunder, and any additions and
substitutions to said Restricted Shares. For purposes of this Section 5, Restricted Shares shall
be deemed to include any additional or substitute property. The Participant does hereby
- 2 -
irrevocably constitute and appoint the Escrow Agent as his or her attorney-in-fact and agent for
the term of this escrow to execute with respect to such Restricted Shares all documents necessary
or appropriate to make such Restricted Shares negotiable and to complete any transaction herein
contemplated. Subject to the terms of this Agreement, the Participant shall exercise all rights
and privileges of a stockholder of the Company while the Restricted Shares are held by the Escrow
Agent. The Participant shall, upon request of the Escrow Agent, deliver to the Escrow Agent a
stock assignment duly endorsed in blank, in the form provided by the Company, and hereby instructs
the Company to deliver to the Escrow Agent, on behalf of the Participant, the certificate(s)
evidencing the Restricted Shares.
(b)
Withdrawal
. The Participant shall have the right to withdraw from escrow any
Restricted Shares that have vested (as provided in this Agreement).
(c)
Duties of Escrow Agent
.
The Escrow Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or refraining from
acting on any instrument reasonably believed by him to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall not be personally liable for any
act he may do or omit to do hereunder as Escrow Agent or as attorney-in-fact of the Participant
while acting in good faith and in the exercise of his good judgment. The Escrow Agent is hereby
expressly authorized to disregard any and all warnings given by any of the parties or by any other
person or entity, excepting only orders or process of courts of law, and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. If the Escrow Agent
is uncertain of any actions to be taken or instructions to be followed, he may refuse to act in the
absence of an order, judgment or decrees of a court. In case the Escrow Agent obeys or complies
with any such order, judgment or decree of any court, he shall not be liable to any of the parties
or to any other person or entity, by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to
have been entered without jurisdiction. The Escrow Agent shall not be liable in any respect on
account of the identity, authority or rights of the parties executing or delivering or purporting
to execute or deliver this Agreement or any documents or papers deposited or called for hereunder.
It is understood and agreed that if the Escrow Agent believes a dispute has arisen with respect to
the delivery and/or ownership or right of possession of the securities held by him hereunder, the
Escrow Agent is authorized and directed to retain in his possession without liability to anyone all
or any part of said securities until such dispute shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree or judgment of a court of competent
jurisdiction after the time for appeal has expired and no appeal has been perfected, but he shall
be under no duty whatsoever to institute or defend any such proceedings. The Escrow Agents rights
and responsibilities as Escrow Agent shall terminate if he ceases to be Secretary of the Company,
in which case the successor as Secretary of the Company shall become Escrow Agent hereunder.
- 3 -
6.
Restrictive Legends
.
(a)
Legended Certificates
. All certificates representing unvested Restricted Shares
shall have affixed thereto legends in substantially the following form, in addition to any other
legends that may be required under federal or state securities laws:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS (INCLUDING FORFEITURE AND RESTRICTION ON TRANSFER) OF THE ISSUERS STOCK
INCENTIVE PLAN AND A RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER AND THE
REGISTERED OWNER OF THESE SHARES (OR HIS OR HER PREDECESSOR IN INTEREST). COPIES OF
SUCH PLAN AND AGREEMENT ARE AVAILABLE FOR INSPECTION WITHOUT CHARGE AT THE OFFICE OF
THE SECRETARY OF THE ISSUER.
(b)
Book Entry
. If unvested Restricted Shares are held in book entry form, the
Participant agrees that the Company may give stop transfer instructions to the depository to ensure
compliance with the provisions of this Agreement. The Participant hereby (i) acknowledges that the
unvested Restricted Shares may be held in book entry form on the books of the Companys depository
(or another institution specified by the Company), and irrevocably authorizes the Company to take
such actions as may be necessary or appropriate to effectuate a transfer of the record ownership of
any such shares that are unvested and forfeited hereunder, (ii) agrees to deliver to the Company,
as a precondition to the issuance of any certificate or certificates with respect to unvested
Restricted Shares, one or more stock powers, endorsed in blank, with respect to such shares, and
(iii) agrees to sign such other powers and take such other actions as the Company may reasonably
request to accomplish the transfer or forfeiture of any unvested Restricted Shares that are
forfeited hereunder.
7.
Unrestricted Shares
.
As soon as practicable following the vesting of any Restricted Shares the Company shall cause
a certificate or certificates covering such shares, without the legend contained in Section 6(a) of
this Agreement, to be issued and delivered to the Participant, subject to the payment by the
Participant by cash or other means acceptable to the Company of any federal, state, local and other
applicable taxes required to be withheld in connection with such vesting. The Participant
understands that once a certificate has been delivered to the Participant in respect of Restricted
Shares which have vested, the Participant will be free to sell the shares of Common Stock evidenced
by such certificate, subject to applicable requirements of federal and state securities laws.
8.
Provisions of the Plan
.
This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the
Participant with this Agreement.
- 4 -
9.
Dividends and Voting Rights
.
The Participant shall be entitled to any and all dividends or other distributions paid with
respect to the Restricted Shares which have not been forfeited or otherwise disposed of and shall
be entitled to vote any such Restricted Shares;
provided,
however
,
that any
property (other than cash) distributed with respect to the Restricted Shares, including without
limitation a distribution of shares of the Companys stock by reason of a stock dividend, stock
split or otherwise, or a distribution of other securities based on the ownership of Restricted
Shares, shall be subject to the restrictions of this Restricted Stock Agreement in the same manner
and for so long as the Restricted Shares remain subject to such restrictions, and shall be
forfeited to the Company if and when the Restricted Shares are so forfeited.
10.
Withholding Taxes; Section 83(b) Election
.
(a) The Participant expressly acknowledges that the award of the Restricted Shares to the
Participant or the vesting thereof will give rise to wages subject to withholding. The
Participant expressly acknowledges and agrees that the Participants rights hereunder are subject
to the Participant s paying to the Company in cash (or by the delivery of previously acquired
shares of Common Stock or by having the Company hold back from the shares to be delivered, shares
of Common Stock having a Fair Market Value calculated to satisfy the withholding requirement) all
federal, state, local and any other applicable taxes required to be withheld in connection with
such award or vesting;
provided
,
however
, except as otherwise provided by the
Board, the total tax withholding where stock is being used to satisfy such tax obligations cannot
exceed the Companys minimum statutory withholding obligations (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes, that are applicable
to such supplemental taxable income). If the withholding obligation is not satisfied by the
Participant promptly, the Participant acknowledges and agrees that the Company has the right
(without further consent from the Participant) to deduct any federal, state or local taxes of any
kind required by law to be withheld with respect to the award of the Restricted Shares to the
Participant or the vesting thereof from payments of any kind otherwise due to the Participant
(including but not limited to, the hold back from the shares to be delivered pursuant to Section 7
of this Agreement of that number of shares calculated to satisfy all such federal, state, local or
other applicable taxes required to be withheld in connection with such award or vesting).
(b) The Participant has reviewed with the Participants own tax advisors the federal, state,
local and foreign tax consequences of this investment and the transactions contemplated by this
Agreement. The Participant is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participants own tax liability that
may arise as a result of this investment or the transactions contemplated by this Agreement. The
Participant understands that it may be beneficial in some circumstances to elect to be taxed at the
time the Restricted Shares are awarded rather than when and as the restrictions thereon lapse by
filing an election under Section 83(b) of the Code with the I.R.S. within 30 days from the date of
award.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANTS SOLE RESPONSIBILITY AND NOT THE
COMPANYS TO FILE TIMELY THE ELECTION
- 5 -
UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANTS BEHALF.
11.
No Right To Employment or Other Status
. The grant of an award of Restricted Shares
shall not be construed as giving the Participant the right to continued employment or any other
relationship with the Company or a Subsidiary. The Company and Subsidiaries expressly reserve the
right at any time to dismiss or otherwise terminate its relationship with the Participant free from
any liability or claim under the Plan or this Agreement, except as expressly provided herein.
12.
Governing Law
. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Delaware without regard to any applicable conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
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THERMO FISHER SCIENTIFIC INC.
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By:
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Steve Sheehan
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Title: Senior Vice President, Human Resources
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Address: 81 Wyman Street
Waltham, MA 02454
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/s/ Guy Broadbent
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Guy Broadbent
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Address: 37 Lettery Circle
Sudbury, MA 01776
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- 6 -
EXHIBIT
10.20
THERMO FISHER SCIENTIFIC INC.
PERFORMANCE RESTRICTED STOCK AGREEMENT
Granted Under
2005 Stock Incentive Plan
1.
Award of Restricted Shares.
This agreement sets forth the terms and conditions of an award by Thermo Fisher
Scientific Inc., a Delaware corporation (the Company), on
, 200[ ] (the Award
Date) to
(the Participant) of ___ shares (the Restricted Shares) of
common stock, $1.00 par value, of the Company (Common Stock) pursuant to the terms, conditions
and restrictions set forth in this Agreement and in the Companys 2005 Stock Incentive Plan (the
Plan). Capitalized terms used in this Agreement and not otherwise defined shall have the same
meaning as in the Plan.
2.
Vesting Schedule.
The restrictions set forth in this Agreement shall lapse and the Restricted Shares shall
vest in accordance with
Schedule A
attached hereto and incorporated herein;
provided
, that on each date referenced in
Schedule A
, the Participant is, and has
been at all times since the Award Date, an employee, officer or director of, or consultant or
advisor to, the Company or any other entity the employees, officers, directors, consultants, or
advisors of which are eligible to receive restricted stock awards under the Plan (an Eligible
Participant). The foregoing notwithstanding, if a Participant ceases to be an Eligible
Participant (i) after the First Revenue Vesting Date but before the Second Revenue Vesting Date
and/or (ii) after the First EPS Vesting Date but before the Second EPS Vesting Date, in either case
as of result of (x) the termination of an Eligible Participants employment due to death or
disability (as defined below), (y) the termination of an Eligible Participants employment by the
Company without Cause (as defined in the Plan) or (z) the termination by the Eligible Participant
of his or her employment for Good Reason (as defined in the Plan) after a Change in Control
Event, then the Restricted Shares that would have otherwise vested on the Second Revenue Vesting
Date or the Second EPS Vesting Date, as the case may be, shall vest on the date the Participant
ceases to be an Eligible Participant. For the purposes of this Agreement, a Participant shall be
deemed to be
disabled at such time as the Participant is receiving disability benefits under the
Companys Long Term Disability Coverage, as then in effect.
3.
Forfeiture.
Except as provided in Section 2 above, in the event that the Participant ceases to be an
Eligible Participant for any reason, the Restricted Shares that have not previously vested shall be
immediately forfeited to the Company. For the avoidance of doubt and notwithstanding the
provisions of Section 9(b)(5) of the Plan, if a Participants employment with the Company
terminates for any reason (and regardless of whether a Change in Control Event has occurred)
prior
to the First Revenue Vesting Date or the First EPS Vesting Date, all Restricted Shares shall be
forfeited at the time of employment termination.
4.
Restrictions on Transfer.
The Restricted Shares may not be sold, assigned, transferred, pledged, or otherwise
encumbered or disposed of except by will or laws of descent and distribution unless and until such
Restricted Shares shall have vested as provided in this Agreement and in the Plan. Notwithstanding
the foregoing, the Company consents to the gratuitous transfer of the Restricted Shares that have
not vested to or for the benefit of any immediate family member, family trust or family partnership
established solely for the benefit of the Participant and/or an immediate family member;
provided
that with respect to such proposed transferee the Company would be eligible to use
a Form S-8 for the registration of the sale of Common Stock constituting the Restricted Shares
under the Securities Act of 1933, as amended; and
provided
further
that such
Restricted Shares shall remain subject to the terms and conditions of this Agreement (including
without limitation forfeiture and restrictions on transfer) and the Company shall not be required
to recognize any such transfer until such time as the Participant and the permitted transferee
shall, as a condition to such transfer, deliver to the Company a written instrument in form and
substance satisfactory to the Company confirming that such transferee shall be bound by all of the
terms and conditions of this Agreement.
5.
Escrow.
(a)
Appointment
. The Participant irrevocably authorizes the Company to deposit
with the Secretary of the Company (in such capacity, the Escrow Agent) any certificates
evidencing Restricted Shares, to be held by the Escrow Agent hereunder, and any additions and
substitutions to said Restricted Shares. For purposes of this Section 5, Restricted Shares shall
be deemed to include any additional or substitute property. The Participant does hereby
irrevocably constitute and appoint the Escrow Agent as his or her attorney-in-fact and agent for
the term of this escrow to execute with respect to such Restricted Shares all documents necessary
or appropriate to make such Restricted Shares negotiable and to complete any transaction
herein contemplated. Subject to the terms of this Agreement, the Participant shall exercise all
rights and privileges of a stockholder of the Company while the Restricted Shares are held by the
Escrow Agent. The Participant shall, upon request of the Escrow Agent, deliver to the Escrow Agent
a stock assignment duly endorsed in blank, in the form provided by the Company, and hereby
instructs the Company to deliver to the Escrow Agent, on behalf of the Participant, the
certificate(s) evidencing the Restricted Shares.
(b)
Withdrawal
. The Participant shall have the right to withdraw from escrow any
Restricted Shares that have vested (as provided in this Agreement).
(c)
Duties of Escrow Agent
. The Escrow Agent shall be obligated only for the
performance of such duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by him to be genuine and
to have been signed or presented by the proper party or parties. The Escrow Agent shall not be
personally liable for any act he may do or omit to do hereunder as Escrow Agent or as
attorney-in-fact of the Participant while acting in good faith and in the exercise of his good
judgment. The Escrow Agent is hereby expressly authorized to disregard any and all warnings given
by any of the parties or by any other person or entity, excepting only orders or process of courts
of law, and is hereby expressly authorized to comply with and obey orders, judgments or decrees of
any court. If the Escrow Agent is uncertain of any actions to be taken or instructions to be
followed, he may refuse to act in the absence of an order, judgment or decrees of a court. In case
the Escrow Agent obeys or complies with any such order, judgment or decree of any court, he shall
not be liable to any of the parties or to any other person or entity, by reason of such compliance,
notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled,
set aside, vacated or found to have been entered without jurisdiction. The Escrow Agent shall not
be liable in any respect on account of the identity, authority or rights of the parties executing
or delivering or purporting to execute or deliver this Agreement or any documents or papers
deposited or called for hereunder. It is understood and agreed that if the Escrow Agent believes a
dispute has arisen with respect to the delivery and/or ownership or right of possession of the
securities held by him hereunder, the Escrow Agent is authorized and directed to retain in his
possession without liability to anyone all or any part of said securities until such dispute shall
have been settled either by mutual written agreement of the parties concerned or by a final order,
decree or judgment of a court of competent jurisdiction after the time for appeal has expired and
no appeal has been perfected, but he shall be under no duty whatsoever to institute or defend any
such proceedings. The Escrow Agents rights and responsibilities as Escrow Agent shall terminate
if he ceases to be Secretary of the Company, in which case the successor as Secretary of the
Company shall become Escrow Agent hereunder.
6.
Restrictive Legends.
(a)
Legended Certificates
. All certificates representing unvested Restricted
Shares shall have affixed thereto legends in substantially the following form, in addition to any
other legends that may be required under federal or state securities laws:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS (INCLUDING FORFEITURE
AND RESTRICTION ON TRANSFER) OF THE ISSUERS STOCK INCENTIVE PLAN AND A RESTRICTED
STOCK AGREEMENT BETWEEN THE ISSUER AND THE REGISTERED OWNER OF THESE SHARES (OR HIS
OR HER PREDECESSOR IN INTEREST). COPIES OF SUCH PLAN AND AGREEMENT ARE AVAILABLE
FOR INSPECTION WITHOUT CHARGE AT THE OFFICE OF THE SECRETARY OF THE ISSUER.
(b)
Book Entry
. If unvested Restricted Shares are held in book entry form, the
Participant agrees that the Company may give stop transfer instructions to the depository to ensure
compliance with the provisions of this Agreement. The Participant hereby (i) acknowledges that the
unvested Restricted Shares may be held in book entry form on the books of the Companys depository
(or another institution specified by the Company), and irrevocably authorizes the Company to take
such actions as may be necessary or appropriate to effectuate a transfer of the record ownership of
any such shares that are unvested and forfeited hereunder, (ii) agrees to deliver to the Company,
as a precondition to the issuance of any certificate or certificates with respect to unvested
Restricted Shares, one or more stock powers, endorsed in blank, with respect to such shares, and
(iii) agrees to sign such other powers and take such other
actions as the Company may reasonably
request to accomplish the transfer or forfeiture of any unvested Restricted Shares that are
forfeited hereunder.
7.
Unrestricted Shares
.
As soon as practicable following the vesting of any Restricted Shares the Company shall cause
a certificate or certificates covering such shares, without the legend contained in Section 6(a) of
this Agreement, to be issued and delivered to the Participant, subject to the payment by the
Participant by cash or other means acceptable to the Company of any federal, state, local and other
applicable taxes required to be withheld in connection with such vesting. The Participant
understands that once a certificate has been delivered to the Participant in respect of Restricted
Shares which have vested, the Participant will be free to sell the shares of Common Stock evidenced
by such certificate, subject to applicable requirements of federal and state securities laws.
8.
Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, including without limitation,
the provisions of Section 10(i) thereof pertaining to Section 162(m) of the Code.
9.
Dividends and Voting Rights
.
The Participant shall be entitled to any and all dividends or other distributions paid with
respect to the Restricted Shares which have not been forfeited or otherwise disposed of and shall
be entitled to vote any such Restricted Shares;
provided,
however
,
that any
property (other than cash) distributed with respect to the Restricted Shares, including without
limitation a distribution of shares of the Companys stock by reason of a stock dividend, stock
split or otherwise, or a distribution of other securities based on the ownership of Restricted
Shares, shall be subject to the restrictions of this Restricted Stock Agreement in the same manner
and for so long as the
Restricted Shares remain subject to such restrictions, and shall be forfeited to the Company
if and when the Restricted Shares are so forfeited.
10.
Withholding Taxes; Section 83(b) Election.
(a) The Participant expressly acknowledges that the award of the Restricted Shares to the
Participant or the vesting thereof will give rise to wages subject to withholding. The
Participant expressly acknowledges and agrees that the Participants rights hereunder are subject
to the Participant s paying to the Company in cash (or by the delivery of previously acquired
shares of Common Stock or by having the Company hold back from the shares to be delivered, shares
of Common Stock having a Fair Market Value calculated to satisfy the withholding requirement) all
federal, state, local and any other applicable taxes required to be withheld in connection with
such award or vesting;
provided
,
however
, except as otherwise provided by the
Board, the total tax withholding where stock is being used to satisfy such tax obligations cannot
exceed the Companys minimum statutory withholding obligations (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes, that are applicable
to such supplemental taxable income). If the withholding obligation is not satisfied by the
Participant promptly, the Participant acknowledges and agrees that the Company has the right
(without further consent from the Participant) to deduct any federal, state or local taxes of any
kind required by law to be withheld with respect to the award of the Restricted Shares to the
Participant or the vesting thereof from payments of any kind otherwise due to the Participant
(including but not limited to, the hold back from the shares to be delivered pursuant to Section 7
of this Agreement of that number of shares calculated to satisfy all such federal, state, local or
other applicable taxes required to be withheld in connection with such award or vesting).
(b) The Participant has reviewed with the Participants own tax advisors the federal, state,
local and foreign tax consequences of this investment and the transactions contemplated by this
Agreement. The Participant is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participants own tax liability that
may arise as a result of this investment or the transactions contemplated by this Agreement. The
Participant understands that it may be beneficial in some circumstances to elect to be taxed at the
time the Restricted Shares are awarded rather than when and as the restrictions thereon lapse by
filing an election under Section 83(b) of the Code with the I.R.S. within 30 days from the date of
award.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANTS SOLE RESPONSIBILITY AND NOT THE
COMPANYS TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE
COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANTS BEHALF.
11.
No Right To Employment or Other Status
. The grant of an award of Restricted Shares
shall not be construed as giving the Participant the right to continued employment or any other
relationship with the Company or a Subsidiary. The Company and Subsidiaries expressly reserve the
right at any time to dismiss or otherwise terminate its relationship with the Participant
free from any liability or claim under the Plan or this Agreement, except as expressly provided
herein.
12.
Conflicts With Other Agreements
. In the event of any conflict or inconsistency between
the terms of this Agreement and any employment, severance or other agreement between the Company
and the Participant, the terms of this Agreement shall govern.
13.
Governing Law
. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Delaware without regard to any applicable conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
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THERMO FISHER SCIENTIFIC INC.
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By:
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Title:
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Address:
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[Name of Participant]
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Address:
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EXHIBIT 10.21
THERMO FISHER SCIENTIFIC INC.
DIRECTORS STOCK OPTION PLAN
As amended and restated effective as of November 9, 2006
1.
Purpose
The purpose of this Directors Stock Option Plan (the Plan) of Thermo Fisher Scientific Inc.
(the Company) is to encourage ownership in the Company by outside directors of the Company whose
services are considered essential to the Companys growth and progress and to provide them with a
further incentive to become directors and to continue as directors of the Company. The Plan is
intended to be a nonstatutory stock option plan.
2.
Administration
The Board of Directors (the Board), or a Committee (the Committee) consisting of one or
more directors of the Company appointed by the Board, shall supervise and administer the Plan.
Grants of stock options under the Plan and the amount and nature of the options to be granted shall
be automatic in accordance with Section 5. However, all questions of interpretation of the Plan or
of any stock options granted under it shall be determined by the Board or the Committee and such
determination shall be final and binding upon all persons having an interest in the Plan.
3.
Participation in the Plan
Directors of the Company who are not employees of the Company or any subsidiary or parent of
the Company shall be eligible to participate in the Plan. Directors who receive grants of stock
options in accordance with this Plan are sometimes referred to herein as Optionees.
4.
Stock Subject to the Plan
The maximum number of shares that may be issued under the Plan shall be 773,330 shares of the
Companys Common Stock (the Common Stock), subject to adjustment as provided in Section 9.
Shares to be issued upon the exercise of options granted under the Plan may be either authorized
but unissued shares or shares held by the Company in its treasury. If any option expires or
terminates for any reason without having been exercised in full, the unpurchased shares subject
thereto shall again be available for options thereafter to be granted.
5.
Terms and Conditions
A.
Annual Stock Option Grants
Each Director of the Company who meets the requirements of Section 3 and who is holding office
immediately following the Annual Meeting of Stockholders commencing with the Annual Meeting of
Stockholders held in calendar year 1993, shall be granted an option to
purchase shares of Common Stock at the close of business on the date of such Annual Meeting, except
that (i) the grant of options for 2003 shall be made as of the close of business on May 15, 2003
and (ii) no options shall be awarded in connection with the 2007 Annual Meeting. Prior to 2003,
the annual option granted to each eligible Director shall be exercisable to purchase 1,000 shares
of Common Stock. Commencing with the annual grant in 2003, each eligible Director shall be granted
an option to purchase 7,500 shares of Common Stock. In 2006, each eligible Director shall be
granted an option to purchase 10,500 shares of Common Stock.
B.
General Terms and Conditions Applicable to Grants During 2008 and Thereafter.
1. Options granted during 2008 and thereafter shall be exercisable to the extent they are
vested. Each option shall vest in equal annual installments on the first, second and third
anniversaries of the grant date, provided that on each vesting date, the Optionee is a Director of
the Company. Vested options may be exercised prior to the date which is the earliest of:
(a) seven years after the grant date, (b) three years after the Optionee ceases to serve as a
Director of the Company (one year in the event the Optionee ceases to meet the requirements of this
Subsection by reason of his or her death), or (c) the date of dissolution or liquidation of the
Company.
2. The exercise price at which options are granted hereunder during 2008 and thereafter shall
be the closing price on the national securities exchange on which the Common Stock is principally
traded on the date the option is granted or, if such security is not traded on an exchange, the
last reported sale price on the NASDAQ National Market List on the date the option is granted, or
the closing bid price last quoted by an established quotation service for over-the-counter
securities on the date the option is granted or if none of the above shall apply, the last price
paid for shares of the Common Stock by independent investors in a private placement.
C.
General Terms and Conditions Applicable to Grants During 2005 and 2006.
1. Options granted during 2005 and 2006 shall be exercisable to the extent they are vested.
Each option shall vest in equal annual installments on the first, second and third anniversaries of
the grant date, provided that on each vesting date, the Optionee is a Director of the Company.
Vested options may be exercised prior to the date which is the earliest of:
(a) seven years after the grant date, (b) three years after the Optionee ceases to serve as
a Director of the Company (one year in the event the Optionee ceases to meet the requirements of
this Subsection by reason of his or her death), or (c) the date of dissolution or liquidation of
the Company.
2. The exercise price at which options are granted hereunder during 2005 and 2006 shall be the
average of the opening and closing prices on the national securities exchange on which the Common
Stock is principally traded on the date the option is granted or, if such
security is not traded on an exchange, the average of the opening and last reported sale price
on
the NASDAQ National Market List on the date the option is granted, or the average of the opening
and closing bid prices last quoted by an established quotation service for over-the-counter
securities on the date the option is granted, or if none of the above shall apply, the last price
paid for shares of the Common Stock by independent investors in a private placement.
D.
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General Terms and Conditions Applicable to Grants After 2002 but Before
2005.
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1. Options granted after 2002 but before 2005 shall be exercisable to the extent they are
vested. Each option shall vest in equal annual installments on the first, second and third
anniversaries of the grant date, provided that on each vesting date, the Optionee is a Director of
the Company. Vested options may be exercised prior to the date which is the earliest of:
(a) seven years after the grant date, (b) three years after the Optionee ceases to serve as
a Director of the Company (one year in the event the Optionee ceases to meet the requirements of
this Subsection by reason of his or her death), or (c) the date of dissolution or liquidation of
the Company.
2. The exercise price at which options are granted hereunder after 2002 but before 2005 shall
be the average of the closing prices reported by the national securities exchange on which the
Common Stock is principally traded for the five trading days immediately preceding and including
the date the option is granted or, if such security is not traded on an exchange, the average last
reported sale price for the five-day period on the NASDAQ National Market List, or the average of
the closing bid prices for the five-day period last quoted by an established quotation service for
over-the-counter securities, or if none of the above shall apply, the last price paid for shares of
the Common Stock by independent investors in a private placement.
E.
General Terms and Conditions Applicable to Grants in 2002.
1. Options granted in 2002 shall be immediately exercisable at any time from and after the
grant date and prior to the date which is the earliest of:
(a) seven years after the grant date, (b) three years after the Optionee ceases to serve as
a Director of the Company, (one year in the event the Optionee ceases to meet the requirements of
this Subsection by reason of his or her death), or (c) the date of dissolution or liquidation of
the Company.
2. The exercise price at which options are granted hereunder in 2002 shall be the average of
the closing prices reported by the national securities exchange on which the Common Stock is
principally traded for the five trading days immediately preceding and including the date the
option is granted or, if such security is not traded on an exchange, the average last reported sale
price for the five-day period on the NASDAQ National Market List, or the average of the closing bid
prices for the five-day period last quoted by an established quotation service for over-the-counter
securities, or if none of the above shall apply, the last
price paid for shares of the Common Stock by independent investors in a private placement.
F.
General Terms and Conditions Applicable to Grants Prior to 2002.
1. Options granted prior to 2002 shall be immediately exercisable at any time from and after
the grant date and prior to the date which is the earliest of:
(a) three years after the grant date, (b) two years after the Optionee ceases to serve as a
Director of the Company (one year in the event the Optionee ceases to meet the requirements of this
Subsection by reason of his or her death), or (c) the date of dissolution or liquidation of the
Company.
2. The exercise price at which options are granted hereunder prior to 2002 shall be the
average of the closing prices reported by the national securities exchange on which the Common
Stock is principally traded for the five trading days immediately preceding and including the date
the option is granted or, if such security is not traded on an exchange, the average last reported
sale price for the five-day period on the NASDAQ National Market List, or the average of the
closing bid prices for the five-day period last quoted by an established quotation service for
over-the-counter securities, or if none of the above shall apply, the last price paid for shares of
the Common Stock by independent investors in a private placement.
6.
Exercise of Options
A.
Exercise/Consideration
An option may be exercised in accordance with the instructions described in The Guide for
Employees of Thermo Fisher Scientific Inc. Stock Option Plans and any supplement thereto as they
may be amended from time to time (the Guide). Upon exercise of the option in accordance with the
aforementioned instructions, the Company shall deliver or cause to be delivered to the Optionee the
number of shares then being purchased, registered in the name of the Optionee or other person
exercising the option. If any law or applicable regulation of the Securities and Exchange
Commission or other body having jurisdiction in the premises shall require the Company or the
Director to take any action in connection with shares being purchased upon exercise of the option,
exercise of the option and delivery of the certificate or certificates for such shares shall be
postponed until completion of the necessary action, which shall be taken at the Companys expense.
B.
Tax Withholding
No later than the date on which part or all of the value of any shares received upon the
exercise of an option first becomes includible in an Optionees gross income for income tax
purposes, the Optionee shall satisfy his or her obligations to pay any federal, state or local
taxes required to be withheld with respect to such income in accordance with the provisions of the
Guide. Notwithstanding the foregoing, no election to use shares for the payment of withholding
taxes shall be effective unless made in compliance with any
applicable requirements of
Rule 16b-3.
7.
Transferability
Except as may be authorized by the Board or the Committee, in its sole discretion, no option
may be transferred other than by will or the laws of descent and distribution, and during an
Optionees lifetime an option may be exercised only by him or her (or in the event of incapacity,
the person or persons properly appointed to act on his or her behalf). The Board or the Committee
may, in its discretion, determine the extent to which options granted to an Optionee shall be
transferable.
8.
Limitation of Rights to Continue as a Director
Neither the Plan, nor the quantity of shares subject to options granted under the Plan, nor
any other action taken pursuant to the Plan, shall constitute or be evidence of any agreement or
understanding, express or implied, that the Company will retain a Director for any period of time,
or at any particular rate of compensation.
9.
Adjustments in the Event of Certain Transactions
(a) In the event of a stock dividend, stock split or combination of shares, or other
distribution with respect to holders of Common Stock other than normal cash dividends, the Board or
the Committee will make (i) equitable adjustments to the maximum number of shares that may be
delivered under the Plan under Section 4 above, and (ii) equitable adjustments to the number and
kind of shares of stock or securities subject to options then outstanding or subsequently granted,
any exercise prices relating to options and any other provisions of options affected by such
change.
(b) In the event of any recapitalization, merger or consolidation involving the Company, any
transaction in which the Company becomes a subsidiary of another entity, any sale or other
disposition of all or a substantial portion of the assets of the Company or any similar
transaction, as determined by the Board, the Board in its discretion may make adjustments to
outstanding options, including, without limitation: (i) accelerate the exercisability of the
option, or (ii) adjust the terms of the option (whether or not in a manner that complies with the
requirements of Section 424(a) of the Internal Revenue Code of 1986, as amended (the Code)), or
(iii) if there is a survivor or acquiror entity, provide for the assumption of the option by such
survivor or acquiror or an affiliate thereof or for the grant of one or more replacement options by
such survivor or acquiror or an affiliate thereof, in each case on such terms (which may, but need
not, comply with the requirements of Section 424(a) of the Code) as the Board may determine, or
(iv) terminate the option (provided, that if the Board terminates the option, it shall, in
connection therewith, either (A) accelerate the exercisability of the option prior to such
termination, or (B) provide for a payment to the holder of the option of cash or other property or
a combination of cash or other property in an amount reasonably determined by the Board to
approximate the value of the option assuming an exercise immediately prior to the transaction, or
(C) if there is a survivor or acquiror entity, provide for the grant of one or more replacement
options pursuant to clause (iii) above), or (v) provide for none of, or any combination of, the
foregoing.
(c) No fraction of a share or fractional shares shall be purchasable or deliverable pursuant
to this Section 9.
10.
Limitation of Rights in Option Stock
The Optionee shall have no rights as a stockholder in respect of shares as to which his or her
options shall not have been exercised, certificates issued and delivered and payment as herein
provided made in full, and shall have no rights with respect to such shares not expressly conferred
by this Plan.
11.
Stock Reserved
The Company shall at all times during the term of the options reserve and keep available such
number of shares of the Common Stock as will be sufficient to permit the exercise in full of all
options granted under this Plan and shall pay all other fees and expenses necessarily incurred by
the Company in connection therewith.
12.
Securities Laws Restrictions
A.
Investment Representations
.
The Company may require any person to whom an option is granted, as a condition of exercising
such option, to give written assurances in substance and form satisfactory to the Company to the
effect that such person is acquiring the Common Stock subject to the option for his or her own
account for investment and not with any present intention of selling or otherwise distributing the
same, and to such other effects as the Company deems necessary or appropriate in order to comply
with federal and applicable state securities laws.
B.
Compliance with Securities Laws.
Each option shall be subject to the requirement that if, at any time, counsel to the Company
shall determine that the listing, registration or qualification of the shares subject to such
option upon any securities exchange or under any state or federal law, or the consent or approval
of any governmental or regulatory body, or that the disclosure of non-public information or the
satisfaction of any other condition is necessary as a condition of, or in connection with, the
issuance or purchase of shares thereunder, such option may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval, or satisfaction of such
condition shall have been effected or obtained on conditions acceptable to the Board or the
Committee. Nothing herein shall be deemed to require the Company to apply for or to obtain such
listing, registration or qualification, or to satisfy such condition.
13.
Change in Control
A.
Impact of Event
In the event of a Change in Control as defined in Section 13(B)(1), the following provisions
shall apply.
1.
Options Granted before November 9, 2006
. If a Change in Control occurs while any
options are outstanding, then, effective upon the Change in Control, each outstanding option under
the Plan that was not previously vested shall become immediately exercisable in full.
2.
Options Granted on or after November 9, 2006.
In the event that an Optionee ceases
to be a Director of the Company within eighteen (18) months following a Change in Control, each
outstanding option granted under the Plan on or after November 9, 2006 that was not previously
vested shall become immediately exercisable in full.
B.
Definition of Change in Control
Change in Control
means an event or occurrence set forth in any one or more of
subsections (a) through (d) below (including an event or occurrence that constitutes a Change in
Control under one of such subsections but is specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a Person) of beneficial ownership of any capital stock of the
Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 40% or more of either (i) the then-outstanding Common Stock
(the Outstanding TMO Common Stock) or (ii) the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in the election of Directors (the Outstanding
TMO Voting Securities);
provided
,
however
, that for purposes of this subsection
(a), the following acquisitions shall not constitute a Change in Control: (i) any acquisition by
the Company, (ii) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (iii) any acquisition by
any corporation pursuant to a transaction which complies with clauses (i) and (ii) of subsection
(c) of this definition; or
(b) such time as the Continuing Directors (as defined below) do not constitute a majority of
the Board (or, if applicable, the Board of Directors of a successor corporation to the Company),
where the term Continuing Director means at any date a member of the Board (i) who was a member
of the Board as of May 14, 2003 or (ii) who was nominated or elected subsequent to such date by at
least a majority of the Directors who were Continuing Directors at the time of such nomination or
election or whose election to the Board was recommended or endorsed by at least a majority of the
Directors who were Continuing Directors at the time of such nomination or election;
provided
,
however
, that there shall be excluded from this clause (ii) any
individual whose initial assumption of office occurred as a result of an actual or threatened
election contest with respect to the election or removal of Directors or other actual or threatened
solicitation of proxies or consents, by or on behalf of a person other than the Board; or
(c) the consummation of a merger, consolidation, reorganization, recapitalization or
statutory share exchange involving the Company or a sale or other disposition of all or
substantially all of the assets of the Company in one or a series of transactions (a Business
Combination), unless, immediately following such Business Combination, each of the following two
conditions is satisfied: (i) all or substantially all of the individuals and entities who
were the
beneficial owners of the Outstanding TMO Common Stock and Outstanding TMO Voting Securities
immediately prior to such Business Combination beneficially own, directly or indirectly, more than
60% of the then-outstanding shares of Common Stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the election of Directors, respectively,
of the resulting or acquiring corporation in such Business Combination (which shall include,
without limitation, a corporation which as a result of such transaction owns the Company or
substantially all of the Companys assets either directly or through one or more subsidiaries)
(such resulting or acquiring corporation is referred to herein as the Acquiring Corporation) in
substantially the same proportions as their ownership, immediately prior to such Business
Combination, of the Outstanding TMO Common Stock and Outstanding TMO Voting Securities,
respectively; and (ii) no Person (excluding the Acquiring Corporation or any employee benefit plan
(or related trust) maintained or sponsored by the Company or by the Acquiring Corporation)
beneficially owns, directly or indirectly, 40% or more of the then outstanding shares of common
stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding
securities of such corporation entitled to vote generally in the election of directors; or
(d) approval by the stockholders of the Company of a complete liquidation or dissolution of
the Company.
14.
Amendment of the Plan
The Board may amend, suspend or terminate the Plan or any portion thereof at any time;
provided
that
(i) no amendment that would require stockholder approval under the
rules of the New York Stock Exchange (NYSE) may be made effective unless and until such amendment
shall have been approved by the Companys stockholders, and (ii) if the NYSE amends its corporate
governance rules so that such rules no longer require stockholder approval of material revisions
to equity compensation plans, then, from and after the effective date of such amendment to the NYSE
rules, no amendment to the Plan (A) materially increasing the number of shares authorized under the
Plan, (B) expanding the types of Awards that may be granted under the Plan, (C) materially
expanding the class of participants eligible to participate in the Plan, or (D) deleting or
limiting any provisions prohibiting repricing of options shall be effective unless stockholder
approval is obtained. In addition, if at any time the approval of the Companys stockholders is
required as to any other modification or amendment under Section 422 of the Code or any successor
provision with respect to Incentive Stock Options, the Board may not effect such modification or
amendment without such approval.
15.
Effective Date of the Plan
The Plan was approved by the Board on March 29, 1993 and approved by the Stockholders on May
25, 1993.
16.
Notice
Any written notice to the Company required by any of the provisions of the Plan shall be
addressed to the Secretary of the Company and shall become effective when it is received.
17.
Governing Law
The Plan and all determinations made and actions taken pursuant hereto shall be governed by
the laws of the State of Delaware.