As filed with the Securities and Exchange Commission on August 29, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
Thermo Fisher Scientific Inc.
(Exact name of Registrant as specified in its charter)
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Delaware
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04-2209186
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168 Third Avenue
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02451
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PATHEON N.V. 2016 OMNIBUS INCENTIVE PLAN
(Full title of the plan)
Seth H. Hoogasian
Senior Vice President and General Counsel
Thermo Fisher Scientific Inc.
168 Third Avenue
Waltham, Massachusetts 02451
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (781) 622-1000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer x |
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Accelerated filer o |
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Non-accelerated filer
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Smaller reporting company o |
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Emerging growth company o |
If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised finan cial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act of 1933. o
CALCULATION OF REGISTRATION FEE
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Title of Securities to be
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Amount (number of
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Proposed maximum
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Proposed maximum
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Amount of
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Common Stock, $1.00 par value per share |
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3,300,000 (2) |
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$177.99 |
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$587,367,000 |
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$68,075.84 |
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(1) In accordance with Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution from stock splits, stock dividends or similar transactions.
(2) Represents the maximum number of shares of common stock of Thermo Fisher Scientific Inc. (“Thermo Fisher” or the “Registrant”), $1.00 par value per share issuable pursuant to outstanding restricted stock unit awards and outstanding option awards granted under the Patheon N.V. 2016 Omnibus Incentive Plan, as amended (the “Plan”), which awards were assumed by Thermo Fisher in connection with completion of the acquisition contemplated by the Purchase Agreement, dated as of May 15, 2017, by and between Thermo Fisher, Patheon N.V. (“Patheon”) and Thermo Fisher (CN) Luxembourg S.à r.l. (the “Acquisition”), and pursuant to awards to be granted after the date hereof under the Plan. The Acquisition was completed on August 29, 2017.
(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on August 28, 2017.
EXPLANATORY NOTE
Thermo Fisher Scientific Inc. (“Thermo Fisher” or the “Registrant”) is filing this Form S-8 Registration Statement relating to shares of Thermo Fisher common stock, $1.00 par value per share (“Thermo Fisher common stock”) issuable pursuant to outstanding restricted stock unit awards and outstanding option awards granted under the Patheon N.V. 2016 Omnibus Incentive Plan, as amended (the “Plan”), which awards were assumed by Thermo Fisher in connection with completion of the acquisition contemplated by the Purchase Agreement (the “Purchase Agreement”), dated as of May 15, 2017, by and between Thermo Fisher, Patheon N.V. (“Patheon”) and Thermo Fisher (CN) Luxembourg S.à r.l. (the “Acquisition”), and pursuant to awards to be granted after the date hereof under the Plan.
At the closing of the Acquisition, in accordance with the terms of the Purchase Agreement, Thermo Fisher assumed certain Patheon restricted stock unit awards and certain Patheon option awards that, in each case, were issued under the Plan and outstanding as of immediately prior to the closing of the Acquisition (the “Patheon Awards”), and the Patheon Awards were converted, in accordance with the terms of the Purchase Agreement, into awards relating to Thermo Fisher common stock. In addition, at the closing of the Acquisition, Thermo Fisher assumed the Plan for the purpose of granting future equity awards relating to Thermo Fisher common stock to employees who were employed by Patheon immediately prior to the effective time of the Acquisition, or who are hired after the closing of the Acquisition. This Registration Statement has been filed for the purpose of registering up to 3,300,000 shares of Thermo Fisher common stock issuable pursuant to the Patheon Awards assumed by Thermo Fisher and pursuant to awards to be granted after the date hereof under the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by the Registrant with the Commission, are incorporated by reference herein:
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since December 31, 2016; and
(c) The description of the Registrant’s common stock, $1.00 par value per share, contained in the Registrant’s Form 8-A, filed with the Commission on September 9, 1999 and any amendment or report filed with the Commission for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration
Statement. Notwithstanding the foregoing, any information that has been or will be furnished (and not filed) with the Commission is not incorporated by reference in this Registration Statement or the accompanying prospectus.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Officers and Directors.
The following summary is qualified in its entirety by reference to the complete Delaware General Corporation Law (“DGCL”), the Registrant’s Third Amended and Restated Certificate of Incorporation, as amended to date (“Charter”) and the Registrant’s Bylaws, as amended to date.
Section 145 of the DGCL provides, generally, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (except actions by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation against all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. A corporation may similarly indemnify such person for expenses actually and reasonably incurred by such person in connection with the defense or settlement of any action or suit by or in the right of the corporation, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in the case of claims, issues and matters as to which such person shall have been adjudged liable to the corporation, provided that a court shall have determined, upon application, that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
Section 102(b)(7) of the DGCL provides, generally, that the certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, provided that such provision may not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. No such provision may eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision became effective.
The Registrant is governed by the provisions of the DGCL permitting the Registrant to purchase director’s and officer’s insurance to protect itself and any director, officer, employee or agent of the Registrant. The Registrant has an insurance policy which insures the directors and officers of the Registrant and its subsidiaries against certain liabilities which might be incurred in connection with the performance of their duties. The Registrant also has indemnification agreements with its directors and officers that provide for the maximum indemnification allowed by law.
The Registrant Charter and Bylaws provide that each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Registrant is indemnified and held harmless by the Registrant to the fullest extent authorized by the DGCL against all expense, liability and loss (including attorneys’ fees, judgments, fines and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such person in connection with such proceeding.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided , however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Waltham, Massachusetts, on this 29 th day of August, 2017.
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THERMO FISHER SCIENTIFIC INC. |
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By: |
/s/ Seth H. Hoogasian |
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Seth H. Hoogasian |
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Senior Vice President and General Counsel |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Thermo Fisher Scientific Inc., hereby severally constitute and appoint Marc N. Casper, Stephen Williamson and Seth H. Hoogasian, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all subsequent amendments to said Registration Statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Thermo Fisher Scientific Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Marc N. Casper |
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President, Chief Executive Officer and Director |
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8/29/2017 |
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Marc N. Casper |
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(Principal Executive Officer) |
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/s/ Stephen Williamson |
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Senior Vice President and Chief Financial Officer |
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8/29/2017 |
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Stephen Williamson |
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(Principal Financial Officer) |
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/s/ Peter Hornstra |
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Vice President and Chief |
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8/29/2017 |
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Peter Hornstra |
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Accounting Officer |
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(Principal Accounting Officer) |
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/s/ Jim P. Manzi |
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Chairman of the Board and Director |
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8/29/2017 |
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Jim P. Manzi |
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/s/ Nelson J. Chai |
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Director |
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8/29/2017 |
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Nelson J. Chai |
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/s/ C. Martin Harris, MD |
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Director |
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8/29/2017 |
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C. Martin Harris, MD |
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/s/ Tyler E. Jacks |
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Director |
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8/29/2017 |
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Tyler E. Jacks |
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/s/ Judy C. Lewent |
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Director |
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8/29/2017 |
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Judy C. Lewent |
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/s/ Thomas J. Lynch |
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Director |
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8/29/2017 |
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Thomas J. Lynch |
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/s/ William G. Parrett |
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Director |
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8/29/2017 |
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William G. Parrett |
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/s/ Lars R. Sørensen |
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Director |
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8/29/2017 |
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Lars R. Sørensen |
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/s/ Scott M. Sperling |
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Director |
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8/29/2017 |
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Scott M. Sperling |
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/s/ Elaine S. Ullian |
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Director |
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8/29/2017 |
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Elaine S. Ullian |
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/s/ Dion J. Weisler |
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Director |
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8/29/2017 |
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Dion J. Weisler |
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EXHIBIT INDEX
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Exhibit
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Description |
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4.1 |
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Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2005 and incorporated in this Registration Statement by reference). |
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4.2 |
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Amendment to the Third Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed November 14, 2006 and incorporated in this Registration Statement by reference). |
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4.3 |
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Bylaws of the Registrant, as amended and effective as of March 1, 2017 (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on March 2, 2017 and incorporated in this Registration Statement by reference). |
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4.4 |
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Patheon N.V. 2016 Omnibus Incentive Plan (filed as Exhibit 10.16 to the Registration Statement on Form S-1 filed by Patheon N.V. on June 16, 2016 and incorporated in this Registration Statement by reference). |
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4.5 |
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Amendment to Patheon N.V. 2016 Omnibus Incentive Plan, dated March 7, 2017. |
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4.6 |
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Amendment to Patheon N.V. 2016 Omnibus Incentive Plan, dated August 23, 2017. |
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5.1 |
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Opinion of Wachtell, Lipton, Rosen & Katz, counsel to the Registrant. |
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23.1 |
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Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.1). |
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23.2 |
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm. |
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Power of Attorney (included on the signature page of this Registration Statement). |
Exhibit 4.5
Amendment to
Patheon N.V. 2016 Omnibus Incentive Plan
This amendment (the “ Amendment ”) to the Patheon N.V. 2016 Omnibus Incentive Plan (the “ Plan ”) hereby amends the Plan as follows:
1. The first sentence of Subsection (a) of Section 4 of the Plan is hereby deleted and replaced with the following:
“The maximum number of Common Shares to be issued or, to the extent Common Shares held by the Company are used, to be transferred by the Company, for the purpose of the Plan shall be equal to 20,226,935 Common Shares (subject to adjustment as provided by Section 5).”
2. Except as expressly amended by this Amendment, all terms and conditions of the Plan shall remain in full force and effect.
3. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without reference to principles of conflict of laws.
IN WITNESS WHEREOF, Patheon N.V. has executed this Amendment as of this 7 th day of March, 2017.
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Patheon N.V. |
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By: |
/s/ Eric Sherbet |
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Name: |
Eric Sherbet |
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Title: |
General Counsel |
Exhibit 4.6
Amendment to
Patheon N.V. 2016 Omnibus Incentive Plan
This amendment (the “ Amendment ”) to the Patheon N.V. 2016 Omnibus Incentive Plan (the “Plan”) hereby amends the Plan as follows, effective as of, and subject to the occurrence of, the Closing as defined below:
1. The following definitions are hereby added to Section 2 of the Plan:
“ ‘ Adjusted Option ’ has the meaning set forth in the Thermo Fisher Purchase Agreement.”
“ ‘ Adjusted RSU ’ has the meaning set forth in the Thermo Fisher Purchase Agreement.”
“ ‘ Closing ’ has the meaning set forth in the Thermo Fisher Purchase Agreement.”
“ ‘ Thermo Fisher Purchase Agreement ’ means that certain Purchase Agreement, dated May 15, 2017, by and among the Company, Thermo Fisher Scientific Inc., a Delaware corporation, and Thermo Fisher (CN) Luxembourg S.à r.l., a private limited liability company ( société à responsabilité limitée ) organized under the laws of the Grand Duchy of Luxembourg and a wholly-owned subsidiary of Thermo Fisher Scientific Inc.”
2. A new Subsection (e) is hereby added to Section 14 of the Plan:
“ Adjusted Options and Adjusted RSUs . Notwithstanding anything to the contrary but except as the Company or its Affiliates and a Participant may otherwise agree, with respect to each outstanding Adjusted Option and Adjusted RSU, in the event that (1) the Closing occurs and (2) at any time following the Closing a Participant’s employment or service is terminated without Cause by the Company, its successor or any Affiliate or the Participant resigns from employment or service from the Company, its successor or any Affiliate with Good Reason (for the avoidance of doubt, as defined in Section 2 of the Plan), then, subject to the Participant’s execution and non-revocation of a release of claims in substantially the form attached as Exhibit 1 (subject to update for changes in law) hereto:
(1) Any and all Adjusted Options shall become fully vested and exercisable;
(2) Any and all Adjusted RSUs shall become fully vested and all restrictions, payment conditions and forfeiture conditions applicable to each such Adjusted RSU award shall lapse and be settled as soon as reasonably practicable, but in no event later than ten (10) days following, such release becoming irrevocable (provided if the release revocation and execution period commences in one calendar year but terminates in the second
calendar year, such payment shall be made no earlier than January 1st of such second calendar year) after termination of employment; and
(3) Any Performance Goals imposed with respect to Adjusted Options and Adjusted RSUs shall be deemed to be achieved at target levels.”
3. Except as expressly amended by this Amendment, all terms and conditions of the Plan shall remain in full force and effect.
4. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without reference to principles of conflict of laws.
IN WITNESS WHEREOF, Patheon N.V. has executed this Amendment as of this 23rd day of August, 2017.
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Patheon N.V. |
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By: |
/s/ Eric Sherbet |
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Name: Eric Sherbet |
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Title: General Counsel and Secretary |
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EXHIBIT 1
RELEASE OF CLAIMS
[DATE]
This Release of Claims (the “ Release of Claims ”) is entered into by [PARTICIPANT] (the “ Participant ”) for and in consideration of certain Adjusted Options and Adjusted RSUs (each as defined in the Plan and each, as the case may be, an “ Award ”) granted to the Participant pursuant to the Patheon N.V. 2016 Omnibus Incentive Plan (the “ Plan ”) and the accelerated vesting of such Awards pursuant to Section 14(e) of the Plan.
1. Release.
(a) The Participant, for and on behalf of himself and his heirs, executors, administrators, successors and assigns, hereby voluntarily, knowingly and willingly releases and forever discharges Patheon N.V. (the “ Company ”), together with all of the Company’s past and present owners, parents, subsidiaries, and affiliates (including, without limitation, Thermo Fisher Scientific Inc. and its Affiliates), together with each of their members, officers, directors, investors, partners, employees, agents, representatives and attorneys, and each of their subsidiaries, affiliates, estates, predecessors, successors, and assigns (each, individually, a “ Company Releasee ,” collectively referred to as the “ Company Releasees ”) from any and all rights, claims, charges, actions, causes of action, complaints, sums of money, suits, debts, covenants, contracts, agreements, promises, obligations, damages, demands or liabilities of every kind whatsoever, in law or in equity, whether known or unknown, suspected or unsuspected (collectively, “ Claims ”) which Participant or his heirs, executors, administrators, successors or assigns ever had, now has or may hereafter claim to have by reason of any matter, cause or thing whatsoever: (i) arising from the beginning of time up to the date the Participant executes this Release of Claims including, but not limited to (A) any such Claims relating in any way to the Participant’s employment relationship with the Company or any other Company Releasee, and (B) any such Claims arising under any federal, local or state statute or regulation, including, without limitation, the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974, the New York State Human Rights Law, the New York Labor Law and the New York Civil Rights Law, [OTHER APPLICABLE STATE LAW], each as amended and including each of their respective implementing regulations and/or any other federal, state, local or foreign law (statutory, regulatory or otherwise) that may be legally waived and released; (ii) arising out of or relating to the termination of the Participant’s employment; or (iii) arising under or relating to any policy, agreement, understanding or promise, written or oral, formal or informal, between the Company or any other Company Releasee and the Participant; provided , however , that notwithstanding the foregoing, nothing contained in this Release of Claims shall in any way diminish or impair: (I) any Claims the Participant may have that cannot be waived under applicable law, (II) rights
under this Release of Claims, or (III) any rights the Participant may have to vested benefits under employee benefit plans.
(b) The Participant hereby further acknowledges and agrees that the Company and all other Company Releasees have fully satisfied any and all obligations whatsoever owed to the Participant arising out of his employment with the Company or any other Company Releasee, and that no further payments or benefits are owed to the Participant by the Company or any other Company Releasee.(c) The Participant hereby represents and warrants that he or she has not filed, and agrees not to initiate or cause to be initiated on his behalf, any Claim against the Company Releasees that is released pursuant to this Release of Claims before any local, state or federal agency, court or other body (each, individually, a “ Proceeding ”), and agrees not to participate voluntarily in any Proceeding; provided , however , and subject to the immediately following sentence, nothing set forth herein is intended to or shall interfere with the Participant’s right to participate in a Proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, nor shall this Release of Claims prohibit the Participant from cooperating with any such agency in its investigation. To the maximum extent permitted by law, the Participant waives any right he or she may have to benefit in any manner from any relief (whether monetary or otherwise) arising out of any Proceeding, provided that the foregoing shall not apply to any legally protected whistleblower rights (including under Rule 21F under the Securities Exchange Act of 1934).
(d) The Participant hereby further represents and warrants that he or she has not assigned any of the Claims being released under this Release of Claims.
2. Consideration and Revocation .
(a) The Participant acknowledges that the Company has advised the Participant to consult with an attorney of the Participant’s own choosing prior to executing this Release of Claims. The Participant represents that the Participant has had the opportunity to review this Release of Claims with an attorney of the Participant’s choosing. The Participant also agrees and acknowledges that the Participant is receiving benefits and payments to which the Participant would not otherwise be entitled unless the Participant signs this Release of Claims, that the Participant has voluntarily consented to this Release of Claims and that the Participant has entered into this Release of Claims freely, knowingly and voluntarily.
(b) The Participant has [twenty-one (21)] (1) calendar days to consider the terms of this Release of Claims. However, the Participant may sign and return this Release of Claims before the expiration of the [twenty-one (21)] calendar day period. The Participant agrees that changes to this Release of Claims, whether material or immaterial, will not restart the running of the [twenty-one (21)] calendar day period. Once signed, the Participant will have seven (7) additional calendar says from the date that the Participant signs this Release of Claims to revoke the Participant’s consent. Such revocation must be in writing and must be addressed and sent via [TO COME] as follows: [TO COME]. This Release of Claims will not become effective until the eighth (8th) calendar day after the date on which the Participant signed it. If the Participant
(1) Note to Draft : Duration of consideration period subject to Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act
revokes the Participant’s consent within such seven (7) calendar day period, this Release of Claims shall be of no force or effect and the Participant shall have no right to the accelerated vesting of the Awards pursuant to Section 14(e) of the Plan.
3. Remedies . In the event the Participant breaches this Release of Claims, the Company and its Affiliates may, in addition to any other remedies they may have, reclaim any amounts paid to him or her in consideration for this Release of Claims. The Participant understands that by entering into this Release of Claims he or she will be limiting the availability of certain remedies that he or she may have against the Company Releasees and limiting also his or her ability to pursue certain claims against the Company Releasees.
4. No Admission . This Release of Claims does not constitute an admission of liability or wrongdoing of the Participant or the Company.
5. No Waiver . A failure of any of the Company Releasees to insist on strict compliance with any provision of this Release of Claims shall not be deemed a waiver of such provision or any other provision hereof. If any provision of this Release of Claims is determined to be so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable, and in the event that any provision is determined to be entirely unenforceable, such provision shall be deemed severable, such that all other provisions of this Release of Claims shall remain valid and binding.
6. Entire Agreement . This Release of Claims contains the entire agreement between the Company and the Participant relating to the matters contained herein and amends, supersedes and restates all prior agreements and understandings, oral or written, between the Company and the Participant with respect to the subject matter hereof.
7. Governing Law . This Release of Claims shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the application of any choice-of-law rules that would result in the application of another state’s laws.
THE PARTICIPANT ACKNOWLEDGES THAT HE OR SHE HAS READ THIS RELEASE OF CLAIMS AND THAT HE OR SHE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND THAT HE OR SHE HEREBY EXECUTES THE SAME AND MAKES THE AGREEMENTS PROVIDED FOR HEREIN VOLUNTARILY AND OF HIS OR HER OWN FREE WILL.
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ACKNOWLEDGED AND AGREED: |
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[PARTICIPANT] |
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Exhibit 5.1
[Letterhead of Wachtell, Lipton, Rosen & Katz]
August 29, 2017
Thermo Fisher Scientific Inc.
168 Third Avenue
Waltham, Massachusetts 02451
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Thermo Fisher Scientific Inc., a Delaware corporation (the “ Company ”), in connection with the filing of a Registration Statement on Form S-8 (the “ Registration Statement ” which term does not include any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto) filed with the Securities and Exchange Commission (the “ Commission ”) on the date hereof, relating to the registration under the Securities Act of 1933, as amended (the “ Securities Act ”), of up to 3,300,000 shares of common stock, par value $1.00 per share, of the Company (the “ Shares ”) issuable pursuant to (i) awards that may be granted in the future under the Patheon N.V. 2016 Omnibus Incentive Plan, as amended (the “ Plan ”), which was assumed by the Company in connection with the completion of certain transactions (the “ Transactions ”) contemplated by the Purchase Agreement, dated as of May 15, 2017 (the “ Purchase Agreement ”), by and between the Company, Thermo Fisher (CN) Luxembourg S.à r.l., a private limited liability company ( société à responsabilité limitée ) organized under the laws of the Grand Duchy of Luxembourg and Patheon N.V., a public limited liability company ( naamloze vennootschap ) organized under the laws of The Netherlands (“ Patheon ”) and (ii) outstanding restricted stock unit awards and outstanding option awards granted under the Plan, which awards were assumed by the Company in connection with the Transactions.
In rendering this opinion, we have examined the Registration Statement, the Plan, the Purchase Agreement and such corporate records, other documents and matters of law as we have deemed necessary or appropriate, including the Third Amended and Restated Certificate of Incorporation and Bylaws of the Company, as amended and as currently in effect. In rendering this opinion, we have relied, with your consent, upon oral and written representations of officers of the Company and certificates of officers of the Company and public officials with respect to the accuracy of the factual matters addressed in such representations and certificates. In addition, in rendering this opinion, we have assumed without verification the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, the authenticity of the originals of such latter documents, and the legal capacity of all individuals executing any of the foregoing documents.
We have also assumed that the appropriate action will be taken, prior to the offer and sale of the Shares in accordance with the Plan, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws. We have further assumed that there will be no material changes to the documents we have examined and that, at all times prior to the issuance of the Shares, the Company will maintain a sufficient number of authorized but unissued shares of common stock, par value $1.00 per share, available for such issuance.
Based on and subject to the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.
We are members of the Bar of the State of New York and we express no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York, and the General Corporation Law of the State of Delaware (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing).
This opinion letter speaks only as of its date and is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
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Very truly yours, |
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/s/ Wachtell, Lipton, Rosen & Katz |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 28, 2017 relating to the consolidated financial statements and the effectiveness of internal control over financial reporting, which appears in Thermo Fisher Scientific Inc.’s (the “Company”) Annual Report on Form 10-K for the year ended December 31, 2016. We also hereby consent to the incorporation of our report dated February 28, 2017, except with respect to our opinion on the consolidated financial statements insofar as it relates to the change in the composition of reportable segments as discussed in Note 3 and the change in the manner in which the Company accounts for employee share-based payments and classifies certain cash receipts and cash payments as discussed in Note 1, which is as of May 5, 2017, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting, which appears in the Company’s Current Report on Form 8-K filed with the SEC on May 5, 2017.
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/s/ PricewaterhouseCoopers LLP |
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Boston, MA |
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August 29, 2017 |
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