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

Date of Report (Date of earliest event reported): August 8, 2018

 

 

Thermo Fisher Scientific Inc.

(Exact Name of Registrant as Specified in Charter)

 

 

 

Delaware   1-8002   04-2209186

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

168 Third Avenue

Waltham, Massachusetts

  02451
(Address of Principal Executive Offices)   (Zip Code)

(781) 622-1000

(Registrant’s telephone number including area code)

 

 

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)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

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 financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 1.01.    Entry into a Material Definitive Agreement.

On August 8, 2018, Thermo Fisher Scientific (Finance I) B.V. (“ Thermo Fisher International ”), an indirect, wholly-owned finance subsidiary of Thermo Fisher Scientific Inc. (the “ Company ”), issued €600,000,000 aggregate principal amount of Floating Rate Senior Notes due 2020 (the “ Notes ”), in a public offering pursuant to a registration statement on Form S-3, as amended by the Post-Effective Amendment No. 1 thereto (File No. 333-209867), and a preliminary prospectus supplement and prospectus supplement related to the offering of the Notes, each as previously filed with the Securities and Exchange Commission (the “ SEC ”). The Notes are subject to a Paying Agency Agreement (the “ Paying Agency Agreement ”) and a Calculation Agency Agreement (the “ Calculation Agency Agreement ”), each dated as of August 8, 2018, between Thermo Fisher International and The Bank of New York Mellon, London Branch, as paying agent and calculation agent, respectively. The Company has fully and unconditionally guaranteed the Notes on a senior unsecured basis (the “ Guarantee ” and, together with the Notes, the “ Securities ”). The Securities were issued under an indenture, dated as of August 9, 2016 (the “ Base Indenture ”), and the Second Supplemental Indenture, dated as of August 8, 2018 (the “ Supplemental Indenture ” and, together with the Base Indenture, the “ Indenture ”), among Thermo Fisher International, as issuer, the Company, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee. The sale of the Securities was made pursuant to the terms of an Underwriting Agreement, dated August 6, 2018 (the “ Underwriting Agreement ”), among Thermo Fisher International, as issuer, the Company, as parent guarantor, and Merrill Lynch International, as underwriter. The Underwriting Agreement was separately filed with the SEC on August 6, 2018 as Exhibit 1.1 to the Company’s Current Report on Form 8-K.

The Notes will mature on August 7, 2020. Interest on the Notes will be paid quarterly in arrears on February 7, May 7, August 7 and November 7 of each year, commencing on November 7, 2018, to holders of record on the 15th calendar day, whether or not a business day, prior to the applicable interest payment date.

In addition, on and after July 7, 2020, Thermo Fisher International may redeem some or all of the notes at a redemption price equal to 100% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding the date of redemption.

Upon the occurrence of a change of control (as defined in the Indenture) of the Company and a contemporaneous downgrade of the Notes below an investment grade rating by at least two of Moody’s Investors Service, Inc., S&P Global Ratings, a division of S&P Global, Inc., and Fitch Ratings, Limited, Thermo Fisher International will, in certain circumstances, be required to make an offer to purchase the Notes at a price equal to 101% of the principal amount of the Notes plus any accrued and unpaid interest to, but excluding, the date of repurchase.

The Notes are general unsecured obligations of Thermo Fisher International. The Notes rank equally in right of payment with existing and any future unsecured and unsubordinated indebtedness of Thermo Fisher International and rank senior in right of payment to any existing and future indebtedness of Thermo Fisher International that is subordinated to the Notes. The Notes are also effectively subordinated to any existing and future secured indebtedness of Thermo Fisher International to the extent of the assets securing such indebtedness, and are structurally subordinated to all existing and any future indebtedness and any other liabilities of its subsidiaries.

The Guarantee is a general unsecured obligation of the Company. The Guarantee ranks equally in right of payment with existing and any future unsecured and unsubordinated indebtedness of the Company and will rank senior in right of payment to any existing and future indebtedness of the Company that is subordinated to the Guarantee. The Guarantee is also effectively subordinated to any existing and future secured indebtedness of the Company to the extent of the assets securing such indebtedness, and is structurally subordinated to all existing and any future indebtedness and any other liabilities of its subsidiaries (other than, with respect to Thermo Fisher International, the Notes).


The Indenture contains limited affirmative and negative covenants of the Company and Thermo Fisher International. The negative covenants restrict the ability of the Company and its subsidiaries to incur debt secured by liens on Principal Properties (as defined in the Indenture) or on shares of stock of the Company’s Principal Subsidiaries (as defined in the Indenture) and engage in sale and lease-back transactions with respect to any Principal Property. The Indenture also limits the ability of each of the Company and Thermo Fisher International to merge or consolidate or sell all or substantially all of their respective assets.

Upon the occurrence of an event of default under the Indenture, which includes payment defaults, defaults in the performance of affirmative and negative covenants, bankruptcy and insolvency related defaults and failure to pay certain indebtedness, the obligations of Thermo Fisher International under the Notes may be accelerated, in which case the entire principal amount of the Notes would be immediately due and payable.

The Company expects that the net proceeds from the sale of the Notes will be approximately €597.6 million after deducting the underwriting discount and estimated offering expenses. The Company intends to use the net proceeds of the offering, together with cash on hand, to repay all of the outstanding indebtedness under Thermo Fisher International’s Floating Rate Senior Notes due 2018.

Wilmer Cutler Pickering Hale and Dorr LLP, U.S. counsel to the Company and Thermo Fisher International, has issued an opinion to the Company and Thermo Fisher International, dated August 8, 2018, regarding the legality of the Securities, and Linklaters LLP, Dutch counsel to Thermo Fisher International, has issued an opinion to Thermo Fisher International, dated August 8, 2018, regarding the Notes. Copies of these opinions are filed as Exhibits 5.1 and 5.2 hereto, respectively.

The foregoing description of certain of the terms of the Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of each of the Base Indenture and the Supplemental Indenture, which are filed with this report as Exhibits 4.1 and 4.2 hereto, respectively. The Paying Agency Agreement and the Calculation Agency Agreement are filed as Exhibits 4.3 and 4.4 hereto, respectively. Each of the foregoing documents is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit

   No.   

  

Description

4.1            Indenture, dated as of August  9, 2016, among Thermo Fisher International, as issuer, the Company, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (filed as Exhibit 4.1 to the Company’s Current Report on Form  8-K filed August 9, 2016 [File No. 1-8002] and incorporated in this document by reference).
4.2            Second Supplemental Indenture, dated as of August 8, 2018, among Thermo Fisher International, as issuer, the Company, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee.


4.3            Paying Agency Agreement, dated as of August 8, 2018, among Thermo Fisher International, as issuer, and The Bank of New York Mellon, London Branch, as paying agent.
4.4            Calculation Agency Agreement, dated as of August 8, 2018, among Thermo Fisher International and The Bank of New York Mellon, London Branch, as calculation agent.
5.1            Opinion of Wilmer Cutler Pickering Hale and Dorr LLP.
5.2            Opinion of Linklaters LLP.
23.1          Consent of Wilmer Cutler Pickering Hale and Dorr LLP (contained in Exhibit 5.1 above).
23.2          Consent of Linklaters LLP (contained in Exhibit 5.2 above).


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

   

THERMO FISHER SCIENTIFIC INC.

Date: August 8, 2018     By:   /s/ Michael A. Boxer
      Name:   Michael A. Boxer
      Title:   Senior Vice President and General Counsel

Exhibit 4.2

 

 

THERMO FISHER SCIENTIFIC (FINANCE I) B.V.,

as Issuer

THERMO FISHER SCIENTIFIC INC.,

as Guarantor

AND

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee

SECOND SUPPLEMENTAL INDENTURE

Dated as of August 8, 2018

Floating Rate Senior Notes due 2020

 

 


THIS SECOND SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”) is dated as of August 8, 2018 among THERMO FISHER SCIENTIFIC (FINANCE I) B.V., a private limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of the Netherlands, with its corporate seat ( statutaire zetel ) in Breda, the Netherlands, and its registered office at Takkebijsters 1, 4817 BL Breda, the Netherlands, registered with the Dutch Trade Register of the Chamber of Commerce under number 66428319 (the “ Company ”), THERMO FISHER SCIENTIFIC INC., a Delaware corporation (the “ Guarantor ”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as trustee (the “ Trustee ”).

RECITALS

WHEREAS, the Company, the Guarantor and the Trustee executed and delivered an indenture, dated as of August 9, 2016 (the “ Base Indenture ” and, as supplemented by this Supplemental Indenture, the “ Indenture ”), to provide for the issuance by the Company from time to time of debt securities evidencing the Company’s unsecured indebtedness fully and unconditionally guaranteed by the Guarantor.

WHEREAS, the Company has authorized the issuance of €600,000,000 aggregate principal amount of Floating Rate Senior Notes due 2020 (the “ Notes ”).

WHEREAS, the Company and the Guarantor desire to enter into this Supplemental Indenture pursuant to Section 9.01 of the Base Indenture to establish the form and terms of the Notes in accordance with Sections 2.01 and 2.02 of the Base Indenture.

WHEREAS, the Guarantor desires to guarantee the Notes on the terms set forth in Article XIV of the Base Indenture.

WHEREAS, the entry into this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Base Indenture.

WHEREAS, all things necessary to make this Supplemental Indenture a valid and legally binding agreement according to its terms have been done.

NOW, THEREFORE, for and in consideration of the foregoing premises and for other good and valuable consideration, the Company, the Guarantor and the Trustee, mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Notes as follows:

ARTICLE I

Section  1.1      Defined Terms .

(1)    Capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed thereto in the Base Indenture.

 

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(2)    A term defined anywhere in this Supplemental Indenture has the same meaning throughout.

(3)    The singular includes the plural and vice versa.

(4)    Headings are for convenience of reference only and do not affect the interpretation.

(5)    As used herein, the following defined terms shall have the following meanings with respect to the Notes and this Supplemental Indenture only:

Below Investment Grade Rating Event ” means the Notes are downgraded below Investment Grade Rating by any two of the Rating Agencies on any date during the period (the “ Trigger Period ”) commencing 60 days prior to the first public announcement by the Company or the Guarantor of the occurrence of a Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by at least two of such Rating Agencies on such 60th day, such extension to last with respect to each such Rating Agency until the date on which such Rating Agency considering such possible downgrade either (x) rates the Notes below Investment Grade or (y) publicly announces that it is no longer considering the Notes for possible downgrade, provided that no such extension will occur if on such 60th day the Notes are rated Investment Grade by at least two of such Rating Agencies in question and are not subject to review for possible downgrade by such Rating Agencies).

Business Day ” means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in The City of New York or London are authorized or required by law, regulation or executive order to close and (2) on which the Trans-European Automated Real-Time Gross Settlement Express Transfer system (the TARGET2 system), or any successor thereto, is open.

Calculation Agency Agreement ” means the Calculation Agency Agreement, dated as of August 8, 2018, between the Company and the Calculation Agent.

Calculation Agent ” means The Bank of New York Mellon, London Branch, or any successor.

Change of Control ” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Guarantor and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Guarantor or one of its direct or indirect wholly-owned subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or consolidation) as a result of which any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Guarantor’s outstanding Voting Stock or other Voting Stock into which the Guarantor’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than

 

3


number of shares; (3) the Guarantor consolidates with, or merges with or into, any “person” or “group” (as that term is used in Section 13(d)(3) of the Exchange Act), or any “person” or “group” consolidates with, or merges with or into, the Guarantor, in any such event pursuant to a transaction in which any of the Guarantor’s Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Guarantor’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person immediately after giving effect to such transaction; or (4) the adoption of a plan relating to the Guarantor’s liquidation or dissolution. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (a) the Guarantor becomes a direct or indirect wholly-owned subsidiary of a holding company (which shall include a parent company) and (b)(i) the holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Guarantor’s Voting Stock immediately prior to that transaction or (ii) no “person” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than a holding company satisfying the requirements of this sentence) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the voting power of the Voting Stock of such holding company immediately following such transaction.

Change of Control Triggering Event ” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

Common Depositary ” means The Bank of New York Mellon, London Branch, as common depositary for the Depositary.

Depositary ” means each of Clearstream Banking, S.A., Luxembourg and Euroclear Bank SA/NV as operator of the Euroclear System.

euro ” or “ ” means the single currency introduced at the third stage of the European Economic and Monetary Union pursuant to the Treaty establishing the European Community, as amended.

Fitch ” means Fitch Ratings, Limited, and any successor to its rating agency business.

Internal Revenue Code means the U.S. Internal Revenue Code of 1986, as amended.

Investment Grade Rating ” means a rating by Moody’s equal to or higher than Baa3 (or the equivalent under a successor rating category of Moody’s) or a rating by S&P equal to or higher than BBB- (or the equivalent under any successor rating category of S&P) or a rating by Fitch equal to or higher than BBB- (or the equivalent under any successor rating category of Fitch).

Moody’s ” means Moody’s Investors Service, Inc., and any successor to its rating agency business.

 

4


Optional Redemption Date ” when used with respect to any Note to be redeemed at the Company’s option, means the date fixed for such redemption by or pursuant to Section 1.4A of this Supplemental Indenture.

Optional Redemption Price ” when used with respect to any Note to be redeemed at the Company’s option, means the price at which it is to be redeemed pursuant to Section 1.4A of this Supplemental Indenture.

Paying Agency Agreement ” means the Paying Agency Agreement, dated as of August 8, 2018 between the Company and the Paying Agent.

Paying Agent ” means The Bank of New York Mellon, London Branch, or any successor.

Rating Agencies ” means (1) Moody’s, S&P and Fitch; and (2) if any of Moody’s, S&P or Fitch ceases to rate the Notes or fails to make a rating of the Notes publicly available for any reason, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act, selected by the Company (as certified by a resolution of its Board of Directors) as a replacement agency for any of Moody’s, S&P or Fitch, or all of them, as the case may be.

S&P ” means S&P Global Ratings, a division of S&P Global, Inc., and any successor to its rating agency business.

Specified Office of the Paying Agent ” means, initially, the London Branch of The Bank of New York Mellon, located at One Canada Square, London E14 5AL, England.

TARGET2 Business Day ” means any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System(TARGET2), or any successor system, is open for business.

Voting Stock ” means with respect to any specified person (as that term is used in Section 13(d)(3) of the Exchange Act) Capital Stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such person, even if the right to vote has been suspended by the happening of such a contingency.

Section  1.2      Terms of the Notes .

The following terms relate to the Notes:

(1)    The Notes shall constitute a separate series of Notes having the title “Floating Rate Senior Notes due 2020”.

(2)    The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (the “ Initial Notes ”) shall be €600,000,000. The Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (the “ Additional Notes ”) having the same terms (except for the issue date, offering price and, if

 

5


applicable, the first interest payment date) as the Initial Notes. Any Additional Notes and the Initial Notes shall be consolidated and together constitute a single series under the Indenture and all references to the Notes shall include both the Initial Notes and the Additional Notes, unless the context otherwise requires; provided that if any Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes will have separate ISIN and Common Code numbers. The aggregate principal amount of the Notes shall be unlimited. The entire Outstanding principal amount of the Notes shall be payable on August 7, 2020. The principal of each Note payable at maturity or upon earlier redemption shall be paid against presentation and surrender of such Note at the office or agency maintained for such purposes in London, initially, the Specified Office of the Paying Agent.

(3)    (a) The Notes shall bear interest at a rate equivalent to the 3-month EURIBOR (the “ Base Rate ”) plus 0.300% per annum, as calculated by the Calculation Agent; provided , however , that the minimum interest rate shall be zero. The Notes will bear interest from August 8, 2018 or from the immediately preceding Interest Payment Date (as defined below) to which interest has been paid. Interest on the Notes shall be payable quarterly in arrears on February 7, May 7, August 7 and November 7 of each year (each, a “ Interest Payment Date ”), commencing on November 7, 2018; provided , that, if any Interest Payment Date would be a day that is not a Business Day, such Interest Payment Date shall be the next succeeding day that is a Business Day (and no additional interest will accrue or otherwise accumulate on the amount payable for the period from and after such Interest Payment Date); except that if such next succeeding Business Day falls in the next succeeding calendar month, such Interest Payment Date shall be the immediately preceding Business Day. The interest rate on the Notes will be reset quarterly on February 7, May 7, August 7 and November 7 of each year (each, an “ Interest Reset Date ”), commencing on November 7, 2018; provided , that, if any Interest Reset Date would be a day that is not a Business Day, such Interest Reset Date shall be the next succeeding day that is a Business Day, except that if such next succeeding Business Day falls in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day. The initial Base Rate for the Notes in effect from August 8, 2018 to, but excluding, the first Interest Reset Date will be the 3-month EURIBOR in effect on August 6, 2018. The interest rate on the Notes will be determined on the second TARGET2 Business Day preceding the applicable Interest Reset Date (a “ EURIBOR Interest Determination Date ”). Interest on an Interest Payment Date shall be paid to the Persons in whose names the Notes are registered on the Security Register at the close of business on the regular record date. The regular record date shall be the fifteenth calendar day, whether or not a Business Day, immediately preceding the related Interest Payment Date. Interest on the Notes will be computed on the basis of a 360-day year and the actual number of days in the period for which interest is being calculated.

(b)    The Base Rate that takes effect on any Interest Reset Date shall be equal to the interest rate for deposits in euro designated as “EURIBOR” and sponsored jointly by the European Banking Federation and ACI — the Financial Market Association (or any company established by the joint sponsors for purposes of compiling and publishing that rate) on each

 

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EURIBOR Interest Determination Date, and will be determined by the Calculation Agent in accordance with the following provisions:

 

  (i)

EURIBOR will be the offered rate for deposits in euro having a maturity of three months, as that rate appears on Reuters Page EURIBOR01 as of 11:00 A.M., Brussels time, on the relevant EURIBOR Interest Determination Date.

 

  (ii)

If the rate described in clause (i) above does not appear on Reuters Page EURIBOR01, EURIBOR will be determined on the basis of the rates, at approximately 11:00 A.M., Brussels time, on the relevant EURIBOR Interest Determination Date, at which deposits of the following kind are offered to prime banks in the Euro-Zone interbank market by the principal Euro-Zone office of each of four major banks in that market selected by the Company: euro deposits having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time. The Company will request the principal Euro-Zone office of each of these banks to provide to the Paying Agent and Calculation Agent a quotation in writing of its rate. If at least two quotations are provided in writing, EURIBOR for such EURIBOR Interest Determination Date will be the arithmetic mean (rounded upwards in accordance with Section 1.2(3)(d) hereof) calculated by the Company of such quotations. The Company will ensure that the Calculation Agent is provided with appropriate contact details of the relevant personnel at each of the reference banks that the Calculation Agent will be requested to contact to provide such quotation of its rates.

 

  (iii)

If fewer than two quotations are provided as described in clause (ii) above, EURIBOR for the relevant EURIBOR Interest Determination Date will be the arithmetic mean of the rates for loans of the following kind to leading Euro-Zone banks quoted in writing, at approximately 11:00 A.M., Brussels time, on such EURIBOR Interest Determination Date, by three major banks in the Euro-Zone selected by the Company: loans of euro having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time.

 

  (iv)

If fewer than three banks selected by the Company are quoting as described in clause (iii) above, EURIBOR shall be the EURIBOR then in effect on such EURIBOR Interest Determination Date (or, in the case of the first Interest Reset Date, EURIBOR shall be the initial Base Rate).

(c)    Upon request of the Holder to the Calculation Agent, the Calculation Agent will provide the interest rate then in effect on the Notes and, if determined, the interest rate that will become effective on the next Interest Reset Date.

(d)    All percentages resulting from any calculation with respect to the Notes will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or .09876541) being rounded down to

 

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9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to 9.87655% (or .0987655)). All amounts used in or resulting from any calculation with respect to the Notes will be rounded upward or downward, as appropriate, to the nearest cent, in the case of euro amounts or U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than euro amounts or U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward.

(4)    The Notes shall be issuable in whole in the form of one or more registered Global Securities, without coupons, which shall be deposited with, or on behalf of, the applicable Depositary and shall be registered in the name of the Common Depositary for, and in respect of interests held through, the applicable Depositary. The Notes shall be substantially in the form attached hereto as Exhibit A, the terms of which are herein incorporated by reference. The Notes shall be issuable in denominations of €100,000 or any integral multiple of €1,000 in excess thereof.

(5)    Except as provided in Section 1.4A and 1.4B, the Notes shall not be redeemable at the option of the Company prior to the maturity date.

(6)    The Notes shall not have the benefit of any sinking fund.

(7)    Except as provided herein, the Holders shall have no special rights in addition to those provided in the Base Indenture upon the occurrence of any particular events.

(8)    The Notes shall be general unsecured and unsubordinated obligations of the Company and shall be ranked equally among themselves.

(9)    The Notes are not convertible into shares of common stock or other securities of the Company.

(10)    The covenants set forth in Section 1.5 hereof shall be applicable to the Notes.

(11)    The transfer and exchange provisions set forth in Section 2.05 of the Base Indenture shall be applicable to the Notes.

(12)    All payments of principal of, and interest (including Additional Amounts, if any) and premium (if any) on, the Notes shall be payable in euro; provided , however , that if, on or after August 6, 2018, euro is unavailable to the Company or, in the case of the Guarantee, the Guarantor due to the imposition of exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or if the euro is no longer being used by the then member states of the European Economic and Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes shall be made in U.S. dollars until the euro is again available to the Company or, in the case of the Guarantee, the Guarantor or so used. In such circumstances, the amount payable on any date in euro shall be converted by the Company into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent U.S. dollar/euro exchange rate published in The Wall Street Journal on or prior to

 

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the second Business Day prior to the relevant payment date. Any payment in respect of the Notes so made in U.S. dollars shall not constitute an Event of Default under the Notes or the Indenture. None of the Trustee, the Paying Agent or the Calculation Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any references elsewhere in the Indenture or the Notes to payments being made in euro notwithstanding, payments shall be made in U.S. dollars to the extent set forth in this Section 1.2(12).

(13)    The Bank of New York Mellon, London Branch, shall initially act as the Paying Agent and the Calculation Agent in accordance with the terms of the Paying Agency Agreement and the Calculation Agency Agreement, respectively. The Company hereby initially designates the Specified Office of the Paying Agent as the office to be maintained by it where Notes may be presented for payment, registration of transfer or exchange, and where notices to or demands upon the Company in respect of the Notes or the Indenture may be served. The Security Registrar for the Notes shall initially be the Trustee. Upon notice to the Trustee, the Company may at any time vary or terminate the appointment of any Paying Agent, Security Registrar or Calculation Agent, appoint additional or other Paying Agents, Security Registrars or Calculation Agents and approve any change in the office through which any Paying Agent, Security Registrar or Calculation Agent acts. The Company, the Guarantor or any of the Guarantor’s Subsidiaries may act in any such capacity.

(14)    In order to provide for all payments due on the Notes as the same shall become due, the Company shall cause to be paid to the Paying Agent, no later than 10:00 a.m. London time on the Business Day prior to the payment date of each Note, at such bank as the Paying Agent shall previously have notified the Company, in immediately available funds sufficient to meet all payments due on such Notes.

(15)    Notwithstanding any other provision of this Supplemental Indenture, the Trustee and Paying Agent shall be entitled to make a deduction or withholding from any payment which it makes under this Supplemental Indenture for or on account of any present or future taxes, duties or charges if and to the extent so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant Holder failing to satisfy any certification or other requirements in respect of the Notes, in which event the Trustee or Paying Agent shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted and shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax.

(16)    The Notes shall have the benefit of a Guarantee from the Guarantor on the terms set forth in Article XIV of the Base Indenture.

Section  1.3      Payment of Additional Amounts .

The provisions of Section 15.02 of the Base Indenture shall apply to the Notes. Whenever in the Notes there is mentioned, in any context, the payment of the principal of or interest or any other amounts on, or in respect of, such Notes, such mention shall be deemed to

 

9


include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the terms hereof and the Base Indenture, and express mention of the payment of Additional Amounts in any provision of the Notes shall not be construed as excluding the payment of Additional Amounts in those provisions thereof where such express mention is not made.

Section  1.4A      Optional Redemption .

(1)    The provisions of Article III of the Base Indenture, as amended by the provisions of this Supplemental Indenture, shall apply to the Notes with respect to this Section 1.4A.

(2)    On and after July 7, 2020, the Notes shall be redeemable, in whole at any time or in part from time to time, at the Company’s option, at an Optional Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Optional Redemption Date.

(3)    Notwithstanding the foregoing, installments of interest whose Stated Maturity is on or prior to the Optional Redemption Date shall be payable on the applicable Interest Payment Date to the Holders of such Notes registered as such at the close of business on the applicable regular record date pursuant to the Notes and the Indenture.

(4)    On and after the applicable Optional Redemption Date for the Notes, interest shall cease to accrue on the Notes to be redeemed or any portion thereof called for redemption, unless the Company defaults in the payment of the Optional Redemption Price and accrued and unpaid interest and Additional Amounts, if any. No later than 10:00 a.m. London time on the Business Day prior to the Optional Redemption Date for any Notes to be redeemed, the Company shall deposit with the Trustee or Paying Agent, funds sufficient to pay the Optional Redemption Price of such Notes on the Optional Redemption Date, and (except if the date fixed for redemption shall be an Interest Payment Date) accrued and unpaid interest and Additional Amounts, if any. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected, in the case of global securities, in accordance with applicable Depositary procedures and, in the case of definitive securities, in a manner the trustee deems fair and appropriate, unless otherwise required by law or applicable stock exchange requirements.

(5)    Notice of any optional redemption shall be transmitted at least 15 days but not more than 60 days before the applicable Optional Redemption Date to each Holder of the Notes to be redeemed; provided, however, that the Company shall notify the Trustee of the Optional Redemption Date at least 15 days prior to the date of the giving of such notice (unless a shorter notice shall be satisfactory to the Trustee). Such notice shall be provided in accordance with Section 3.02 of the Base Indenture. If the Optional Redemption Price cannot be determined at the time such notice is to be given, the actual Optional Redemption Price applicable to the Notes that are being redeemed, calculated as described above in clause (2), shall be set forth in an Officers’ Certificate of the Company delivered to the Trustee no later than two (2) Business Days prior to the Optional Redemption Date. Notice of redemption having been given as provided in the Indenture, the Notes called for redemption shall, on the Optional Redemption Date, become due and payable at the Optional Redemption Price, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the Optional Redemption Date.

 

10


Section  1.4B      Redemption Upon Changes in Withholding Tax .

The provisions of Section 15.01 of the Base Indenture shall apply to the Notes. The redemption price for any redemption pursuant to this Section 1.4B shall be paid prior to 12:00 noon, London time, on the applicable redemption date or at such later time as is then permitted by the rules of the Depositary applicable to the Notes (if then registered as Global Notes); provided , that the Company shall deposit or have deposited with the Trustee or the Paying Agent an amount sufficient to pay such redemption price by 10:00 a.m., London time, on the Business Day prior to the date such redemption price is to be paid. If money sufficient to pay the redemption price of the Notes on the applicable redemption date is deposited with the Trustee or Paying Agent on or before such redemption date as provided herein, then on and after such redemption date, interest will cease to accrue on the Notes.

Section  1.5      Change of Control Triggering Event .

The following additional covenants shall apply with respect to the Notes so long as any of the Notes remain Outstanding:

(1)    If a Change of Control Triggering Event occurs with respect to the Notes, unless the Company shall have redeemed the Notes in full, as set forth in Section 1.4A or 1.4B, the Company shall have defeased the Notes or have satisfied and discharged the Notes, as set forth in Article XI of the Base Indenture, the Company shall make an offer (the “ Change of Control Offer ”) to each Holder to repurchase any and all of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes to be repurchased (such principal amount to be equal to €100,000 or any integral multiple of €1,000 in excess thereof), plus accrued and unpaid interest, if any, on the Notes to be repurchased up to, but excluding, the date of repurchase (the “ Change of Control Payment ”). Within 30 days following any Change of Control Triggering Event, notice shall be delivered to the Holders describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 15 days and no later than 60 days from the date such notice is delivered (the “ Change of Control Payment Date ”). Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on Interest Payment Dates falling on or prior to the Change of Control Payment Date shall be payable on the applicable Interest Payment Date to the Holders of such Notes registered as such at the close of business on the applicable regular record date pursuant to the Notes and the Indenture.

(2)    On the Change of Control Payment Date, the Company shall, to the extent lawful:

 

  (i)

accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;

 

  (ii)

deposit with the Trustee or a paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

 

  (iii)

deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate stating (1) the aggregate principal

 

11


  amount of Notes or portions of Notes being repurchased, (2) that all conditions precedent contained herein to make a Change of Control Offer have been complied with and (3) that the Change of Control Offer has been made in compliance with the Indenture.

(3)    [Reserved]

(4)    The Company shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with this Section 1.5, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 1.5 by virtue of any such conflict.

Section  1.6      Events of Default .

The provisions of Article VI of the Base Indenture shall be applicable to the Notes, except that clauses (1) through (7) of Section 6.01(a) shall be modified with respect to the Notes as follows:

(1)    default in the payment of the principal or any premium on the Notes when due (whether at maturity, upon acceleration, redemption or otherwise);

(2)    default for 30 days in the payment of interest on the Notes when due;

(3)    (i) failure by the Company to comply with Section 1.5 of this Supplemental Indenture or (ii) failure by the Company or the Guarantor to observe or perform any term of the Indenture (other than those referred to in (1) or (2) above or (3)(i) above) for a period of 90 days after the Company receives a notice of default stating that the Company or the Guarantor is in breach. The notice required under (3)(ii) above must be sent by either the Trustee or Holders of 25% of the principal amount of the Notes;

(4)    (A) failure by the Company or the Guarantor to pay indebtedness for money borrowed by the Company or the Guarantor or for which the Company or the Guarantor has guaranteed the payment, in an aggregate principal amount of at least $150,000,000, at the later of final maturity and the expiration of any related applicable grace period and such defaulted payment shall not have been made, waived or extended within 30 days or (B) acceleration of the maturity of any indebtedness for money borrowed by the Company or the Guarantor or for which the Company or the Guarantor has guaranteed the payment, in an aggregate principal amount of at least $150,000,000, if such indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days; provided , however , that, if the default under the instrument is cured by the Company or the Guarantor, as applicable, or waived by the holders of the indebtedness, in each case as permitted by the governing instrument, then the Event of Default under the Indenture caused by such default will be deemed likewise to be cured or waived;

 

12


(5)    the entry by a court having competent jurisdiction of:

(A)    an order for relief in respect of the Company or the Guarantor as debtor in an involuntary proceeding under any applicable Bankruptcy Law and such order shall remain unstayed and in effect for a period of 60 consecutive days; or

(B)    a final and non-appealable order appointing a Custodian of the Company or the Guarantor, or ordering the winding up or liquidation of the affairs of the Company or the Guarantor, and such order shall remain unstayed and in effect for a period of 60 consecutive days;

(6)    the commencement by the Company or the Guarantor of a voluntary proceeding under any applicable Bankruptcy Law or the consent by the Company or the Guarantor as debtor to the entry of a decree or order for relief in an involuntary proceeding under any applicable Bankruptcy Law, or the filing by the Company or the Guarantor as debtor of a consent to an order for relief in any involuntary proceeding under any Bankruptcy Law, or to the appointment of a Custodian or the making by the Company or the Guarantor of an assignment for the benefit of creditors; or

(7)    the Guarantee of the Notes is determined in a final, non-appealable judgment to be unenforceable or invalid or such Guarantee is asserted in writing by the Company or the Guarantor to no longer be in full force and effect and enforceable in accordance with its terms.

ARTICLE II

MISCELLANEOUS

Section  2.1      Business Day .

If the maturity date or earlier date of redemption falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date the payment to Holders was due and no interest shall accrue on the amount so payable for the period from and after that maturity date or that date of redemption, as the case may be.

Section  2.2     [ Reserved ].

Section  2.3      Confirmation of Indenture .

The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture, this Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.

Section  2.4      Concerning the Trustee .

In carrying out its responsibilities hereunder, the Trustee shall have all of the rights, protections and immunities which it possesses under the Indenture. The recitals contained herein and in the Notes, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The

 

13


Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of the Notes or the proceeds thereof.

Section  2.5      Governing Law .

This Supplemental Indenture and the Notes shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State.

Section  2.6      Separability .

In case any provision in this Supplemental Indenture shall for any reason be held to 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  2.7      Counterparts .

This Supplemental Indenture may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

Section  2.8      No Benefit .

Nothing in this Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors or assigns, and the Holders, any benefit or legal or equitable rights, remedy or claim under this Supplemental Indenture or the Base Indenture.

[Signatures on Following Page]

 

14


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed all as of the day and year first above written.

 

THERMO FISHER SCIENTIFIC (FINANCE I)

B.V.

By:  

/s/ Anthony H. Smith

  Name:   Anthony H. Smith
  Title:   Managing Director
THERMO FISHER SCIENTIFIC INC.
By:  

/s/ Anthony H. Smith

  Name:   Anthony H. Smith
  Title:   Vice President, Tax and Treasury
    and Treasurer


THE BANK OF NEW YORK MELLON

TRUST COMPANY, N.A., as Trustee

By:  

/s/ Karen Yu

  Name:   Karen Yu
  Title:   Vice President


EXHIBIT A

[Insert the Global Security legend, if applicable]

FLOATING RATE SENIOR NOTES DUE 2020

 

No. [    ]

   €[        ]

ISIN No. XS1865072661

  

THERMO FISHER SCIENTIFIC (FINANCE I) B.V.

promises to pay to [        ] or registered assigns, the principal sum of [        ] Euro on August 7, 2020 (the “ Maturity Date ”).

Interest Payment Dates: February 7, May 7, August 7 and November 7, commencing on November 7, 2018 and ending on the Maturity Date

Record Date: January 23, April 22, July 23 and October 23

Each holder of this Security (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such holder’s behalf to be bound by such provisions. Each holder of this Security hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such holder upon said provisions.

This Security shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.

 

1


IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section 2.04 of the Base Indenture.

Date: [                    ]

 

THERMO FISHER SCIENTIFIC (FINANCE I) B.V.
By:  

 

  Name:
  Title:

 

2


CERTIFICATE OF AUTHENTICATION

This is one of the Floating Rate Senior Notes due 2020 issued by Thermo Fisher Scientific (Finance I) B.V. of the series designated therein, referred to in the within-mentioned Indenture.

Date: [                     ]

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. as Trustee
By:  

 

  Authorized Signatory

 

3


Thermo Fisher Scientific (Finance I) B.V.

Floating Rate Senior Notes due 2020

This security is one of a duly authorized series of debt securities of Thermo Fisher Scientific (Finance I) B.V., a private limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of the Netherlands, with its corporate seat ( statutaire zetel ) at Breda, the Netherlands, (the “ Company ”), issued or to be issued in one or more series under and pursuant to an Indenture for the Company’s unsecured debt securities, dated as of August 9, 2016 (the “ Base Indenture ”), duly executed and delivered by and among the Company, Thermo Fisher Scientific Inc., a Delaware corporation (the “ Guarantor ”), and The Bank of New York Mellon Trust Company, N.A. (the “ Trustee ”), as supplemented by the Second Supplemental Indenture, dated as of August 8, 2018 (the “ Supplemental Indenture ”), among the Company, the Guarantor and the Trustee. The Securities are subject to a Paying Agency Agreement, dated as of August 8, 2018 (the “ Paying Agency Agreement ”), between the Company and The Bank of New York Mellon, London Branch, as paying agent (the “ Paying Agent ”) and a Calculation Agency Agreement, dated as of August 8, 2018 (the “ Calculation Agency Agreement ”), between the Company and The Bank of New York Mellon, London Branch, as calculation agent (the “ Calculation Agent ”). The Base Indenture as supplemented and amended by the Supplemental Indenture is referred to herein as the “ Indenture .” By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This security is one of the series designated on the face hereof (individually, a “ Security ,” and collectively, the “ Securities ”), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties and immunities of the Trustee, the Company, the Guarantor and the holders of the Securities (the “ Securityholders ”). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Base Indenture or the Supplemental Indenture, as applicable.

1.     Interest . The Securities will bear interest from August 8, 2018 or from the immediately preceding Interest Payment Date to which interest has been paid. Interest on the Securities shall be payable quarterly in arrears on February 7, May 7, August 7 and November 7 of each year (each, a “ Interest Payment Date ”), commencing on November 7, 2018; provided , that, if any Interest Payment Date would be a day that is not a Business Day, such Interest Payment Date shall be the next succeeding day that is a Business Day (and no additional interest will accrue or otherwise accumulate on the amount payable for the period from and after such Interest Payment Date); except that if such next succeeding Business Day falls in the next succeeding calendar month, such Interest Payment Date shall be the immediately preceding Business Day. The Securities shall bear interest at a rate equivalent to the 3-month EURIBOR (the “ Base Rate ”) plus 0.300% per annum, as calculated by the Calculation Agent; provided , however , that the minimum interest rate shall be zero. The interest rate on the Securities will be reset quarterly on February 7, May 7, August 7 and November 7 of each year (each, an “ Interest Reset Date ”), commencing on November 7, 2018; provided , that, if any Interest Reset Date would be a day that is not a Business Day, such Interest Reset Date shall be the next succeeding day that is a Business Day, except that if such next succeeding Business Day falls in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day. The initial Base Rate for the Securities in effect from August 8, 2018 to, but

 

4


excluding, the first Interest Reset Date will be the 3-month EURIBOR in effect on August 6, 2018. The interest rate on the Securities will be determined on the second TARGET2 Business Day preceding the applicable Interest Reset Date (a “ EURIBOR Interest Determination Date ”). Interest on the Securities will be computed on the basis of a 360-day year and the actual number of days in the period for which interest is being calculated.

The Base Rate that takes effect on any Interest Reset Date shall be equal to the interest rate for deposits in euro designated as “EURIBOR” and sponsored jointly by the European Banking Federation and ACI — the Financial Market Association (or any company established by the joint sponsors for purposes of compiling and publishing that rate) on each EURIBOR Interest Determination Date, and will be determined by the Calculation Agent in accordance with the following provisions:

i.    EURIBOR will be the offered rate for deposits in euro having a maturity of three months, as that rate appears on Reuters Page EURIBOR01 as of 11:00 A.M., Brussels time, on the relevant EURIBOR Interest Determination Date.

ii.    If the rate described in clause (i) above does not appear on Reuters Page EURIBOR01, EURIBOR will be determined on the basis of the rates, at approximately 11:00 A.M., Brussels time, on the relevant EURIBOR Interest Determination Date, at which deposits of the following kind are offered to prime banks in the Euro-Zone interbank market by the principal Euro-Zone office of each of four major banks in that market selected by the Company: euro deposits having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time. The Company will request the principal Euro-Zone office of each of these banks to provide to the Paying Agent and Calculation Agent a quotation in writing of its rate. If at least two quotations are provided in writing, EURIBOR for such EURIBOR Interest Determination Date will be the arithmetic mean (rounded upwards in accordance with Section 1.2(3)(d) of the Supplemental Indenture) calculated by the Company of such quotations. The Company will ensure that the Calculation Agent is provided with appropriate contact details of the relevant personnel at each of the reference banks that the Calculation Agent will be requested to contact to provide such quotation of its rates.

iii.    If fewer than two quotations are provided as described in clause (ii) above, EURIBOR for the relevant EURIBOR Interest Determination Date will be the arithmetic mean of the rates for loans of the following kind to leading Euro-Zone banks quoted in writing, at approximately 11:00 A.M., Brussels time, on such EURIBOR Interest Determination Date, by three major banks in the Euro-Zone selected by the Company: loans of euro having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time.

 

5


iv.    If fewer than three banks selected by the Company are quoting as described in clause (iii) above, EURIBOR shall be the EURIBOR then in effect on such EURIBOR Interest Determination Date (or, in the case of the first Interest Reset Date, EURIBOR shall be the initial Base Rate).

Upon request of the Securityholder to the Calculation Agent, the Calculation Agent will provide the interest rate then in effect on the Securities and, if determined, the interest rate that will become effective on the next Interest Reset Date.

All percentages resulting from any calculation with respect to the Securities will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or .09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to 9.87655% (or .0987655)). All amounts used in or resulting from any calculation with respect to the Securities will be rounded upward or downward, as appropriate, to the nearest cent, in the case of euro amounts or U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than euro amounts or U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward.

2.     Method of Payment . The Company will pay interest on the Securities (except defaulted interest), if any, to the persons in whose name such Securities are registered at the close of business on the regular record date referred to on the facing page of this Security for such interest installment. In the event that the Securities or a portion thereof are called for redemption pursuant to Sections 1.4 A or 1.4B of the Supplemental Indenture or there is a Change of Control Offer or the Change of Control Payment Date, as applicable, is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Securities shall instead be paid upon presentation and surrender of such Securities as provided in the Indenture. Subject to Section 1.2(12) of the Supplemental Indenture, all payments of principal of, and interest (including Additional Amounts, if any) and premium (if any) on, the Securities shall be payable in euro.

3.     Paying Agent, Calculation Agent and Security Registrar . Initially, The Bank of New York Mellon, London Branch, shall act as the Paying Agent and Calculation Agent, in accordance with the terms of the Paying Agency Agreement and the Calculation Agency Agreement, respectively, and the Trustee shall act as Security Registrar. Upon prior notice to the Trustee, the Company may change or appoint any Paying Agent, Security Registrar or Calculation Agent without notice to any Securityholder. The Company, the Guarantor or any of the Guarantor’s Subsidiaries may act in any such capacity.

4.     Indenture . The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (“ TIA ”) as in effect on the date the Indenture is qualified. The Securities are subject to all such terms, and Securityholders are referred to the Indenture and TIA for a statement of such terms. In the event of a conflict between the terms of the Securities and the terms of the Indenture, the terms of the Indenture shall prevail. The Securities are unsecured general obligations of the Company and constitute the series designated on the face hereof as the “Floating Rate Senior Notes due 2020”, initially limited to €600,000,000 in aggregate principal amount. The Company

 

6


shall furnish to any Securityholder upon written request and without charge a copy of the Base Indenture and the Supplemental Indenture. Requests may be made to: Thermo Fisher Scientific Inc., 168 Third Avenue, Waltham, Massachusetts 02451, Attention: Michael A. Boxer.

5.     No Optional Redemption . Except as set forth in Sections 1.4A and 1.4B of the Supplemental Indenture, the Company may not redeem the Securities of this series prior to the Maturity Date. The Company shall not be required to make sinking fund payments with respect to the Securities.

6.     Redemption Upon Changes in Withholding Taxes; Payment of Additional Amounts . The provisions of Sections 15.01 and 15.02 of the Base Indenture and Sections 1.3 and 1.4B of the Supplemental Indenture shall apply to the Securities.

Whenever the payment of the principal of or interest or any other amounts on, or in respect of, the Securities is mentioned, in any context, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the terms of the Indenture, and express mention of the payment of Additional Amounts in any provision of the Securities shall not be construed as excluding the payment of Additional Amounts in those provisions where such express mention is not made.

7.     Change of Control Triggering Event . Upon the occurrence of a Change of Control Triggering Event, unless the Company has redeemed this Security or the Company has defeased this Security or satisfied and discharged this Security, the holder of this Security shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to €100,000 or any integral multiple of €1,000 in excess thereof) of this Security at a purchase price equal to 101% of the aggregate principal amount repurchased plus accrued and unpaid interest, if any, on the amount to be repurchased up to but excluding the date of purchase. Within 30 days following any Change of Control Triggering Event, the Company shall send, by first class mail, a notice to each Holder, in accordance with Section 1.5 of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer.

8.     Denominations, Transfer, Exchange . The Securities are in registered form without coupons in the denominations of €100,000 or any integral multiple of €1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Securities may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the Security Registrar) at the office of the Paying Agent or at the office of any transfer agent designated by the Company for such purpose. No service charge shall be made for any registration of transfer or exchange, but a Securityholder may be required to pay any applicable taxes or other governmental charges.

9.     Persons Deemed Owners . The registered Securityholder may be treated as its owner for all purposes.

 

7


10.     Repayment to the Company . Any funds or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of, premium, if any, or interest on the Securities that are not applied but remain unclaimed by the holders of such Securities for at least one year after the date upon which the principal of, premium, if any, or interest on such Securities shall have respectively become due and payable, shall be repaid to the Company, as applicable, or (if then held by the Company) shall be discharged from such trust. After return to the Company, Holders entitled to the money or securities must look to the Company, as applicable, for payment as unsecured general creditors.

11.     Amendments, Supplements and Waivers . The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the Securities to be affected under the Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding to be affected. The Indenture also contains provisions permitting the Holders of a majority in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities, to waive compliance by the Company or the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

12.     Defaults and Remedies . If an Event of Default with respect to the Securities occurs and is continuing, the Trustee or the holders of at least 25% in aggregate principal amount of the Securities then Outstanding, by notice in writing to the Company (and to the Trustee if notice is given by such holders), may declare the entire principal of, premium, if any, and accrued interest, if any, of such Securities due and payable immediately. Subject to the terms of the Indenture, if an Event of Default under the Indenture shall occur and be continuing, the Trustee shall be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the holders, unless such holders have offered the Trustee indemnity satisfactory to it. Upon satisfaction of certain conditions set forth in the Indenture, the holders of a majority in principal amount of the Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities.

13.     Trustee, Paying Agent and Security Registrar May Hold Securities . The Trustee, subject to certain limitations imposed by the TIA, or any Paying Agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent or Security Registrar.

14.     No Recourse Against Others . No recourse under or upon any obligation, covenant or agreement of the Indenture, or of any Security, or for any claim based thereon or otherwise in respect hereof or thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or the Guarantor or of any predecessor or successor corporation, either directly or through the Company or the Guarantor or

 

8


any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that the Indenture and the obligations issued hereunder and thereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or the Guarantor or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations, covenants or agreements contained in the Indenture or in the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because of the creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations, covenants or agreements contained in the Indenture or in the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the acceptance of the Securities.

15.     Discharge of Indenture . The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.

16.     Authentication . This Security shall not be valid until the Trustee signs the certificate of authentication attached to the other side of this Security.

17.     Guarantee . This Security is fully and unconditionally guaranteed by the Guarantor, as provided in Article XIV of the Base Indenture.

18.     Abbreviations . Customary abbreviations may be used in the name of a Securityholder or an assignee, such as: TEN COM(= tenants in common), TEN ENT (=tenants by the entireties), JT TEN(= joint tenants with right of survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A(= Uniform Gifts to Minors Act).

19.     Governing Law . The Base Indenture, the Supplemental Indenture and this Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State.

 

9


ASSIGNMENT FORM

To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                                                                                                                                                                                                                  

agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.

 

Date:                     

  
  

Your Signature                                                                                           

  

(Sign exactly as your name appears on the face of this Security)

Signature Guarantee:                                                                                                               

 

A-1


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Security purchased by the Company pursuant to Section 1.5 of the Supplemental Indenture, check the box:

 

1.5 Change of Control Triggering Event

If you want to elect to have only part of this Security purchased by the Company pursuant to Section 1.5 of the Supplemental Indenture, state the amount: €         

 

Date:                         Your Signature                                                                                                           
   (Sign exactly as your name appears on the face of this Security)

                         Tax I.D. Number:                                                                 

Signature Guarantee:                                                                                                                                      

(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)

  

 

A-2


NOTATION OF GUARANTEE

For value received, Thermo Fisher Scientific Inc. hereby absolutely, unconditionally and irrevocably guarantees to the holder of this Security the payment of principal of, premium, if any, and interest on, the Security upon which this Guarantee is set forth in the amounts and at the time when due and payable whether by declaration thereof, or otherwise, and interest on the overdue principal and interest, if any, of such Security, if lawful, to the holder of such Security and the Trustee on behalf of the Holders, all in accordance with and subject to the terms and limitations of such Security and Article XIV of the Indenture. This Guarantee will not become effective until the Trustee or Authenticating Agent duly executes the certificate of authentication on this Security. This Guarantee shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles thereof.

Dated: [                    ]

 

THERMO FISHER SCIENTIFIC INC.
By:  

                                          

Name:  
Title:  

 

A-3

Exhibit 4.3

Dated: August 8, 2018

Thermo Fisher Scientific (Finance I) B.V.

as Issuer

and

The Bank of New York Mellon, London Branch

as Paying Agent

PAYING AGENCY AGREEMENT


THIS AGREEMENT is made as of August 8, 2018 between Thermo Fisher Scientific (Finance I) B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of the Netherlands, with its corporate seat ( statutaire zetel ) at Breda, The Netherlands, and its registered office at Takkebijsters 1, 4817 BL Breda, The Netherlands, registered with the Dutch Trade Register of the Chamber of Commerce under number 66428319 (the “ Issuer ”), and The Bank of New York Mellon (London Branch), as paying agent (the “ Paying Agent ”), located at One Canada Square, London E14 5AL.

WHEREAS, the Issuer proposes to issue Euro denominated Floating Rate Senior Notes due 2020 in the form attached hereto as Annex A (the “ Notes ”) in the aggregate principal amount of €600,000,000 on the date hereof, pursuant to the Indenture, dated as of August 9, 2016 (the “ Base Indenture ”), among the Issuer, Thermo Fisher Scientific Inc. and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Trustee ”), as supplemented by the Second Supplemental Indenture, dated as of August 8, 2018 (together with the Base Indenture, the “ Indenture ”);

WHEREAS, solely with respect to the Notes, the Issuer wishes to appoint the Paying Agent, as set forth above, upon the terms and subject to the conditions set forth herein;

NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows:

 

  1

Definitions

 

  1.1

All capitalized terms used herein, but not defined, shall have the meanings given to them in the Indenture.

 

  1.2

In addition, the following terms shall have the following meanings:

Business Day ” means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in The City of New York or London are authorized or required by law, regulation or executive order to close and (2) on which the Trans-European Automated Real-Time Gross Settlement Express Transfer system (the TARGET2 system), or any successor thereto, is open.

Holder(s)” means the person or persons in whose name or names the Note is registered in the Security Register (as defined in the Indenture).

References to the records of Euroclear Bank SA/NV (“ Euroclear ”) and Clearstream Banking, S.A. (“ Clearstream ”) shall be to the records that each of Euroclear and Clearstream, holds for its customers which reflect the amount of such customers’ interests in the Notes.

 

1


  2

Appointment of Paying Agent

The Issuer hereby appoints The Bank of New York Mellon (London Branch) at its office specified above as the paying agent solely in respect of the Notes upon the terms and conditions herein contained, and The Bank of New York Mellon (London Branch) accepts such appointment. In the event of any inconsistency between the Indenture and this Agreement, the terms of the Indenture shall prevail.

 

  3

Payment

 

3.1

In order to provide for all payments due on the Notes as the same shall become due, the Issuer shall cause to be paid to the Paying Agent, no later than 10:00 a.m. London time one Business Day prior to the due date for the payment of each Note, at such bank as the Paying Agent shall previously have notified to the Issuer, immediately available funds sufficient to meet all payments due on such Notes.

 

3.2

The Issuer hereby authorizes and directs the Paying Agent, from the amounts paid to it pursuant to this Section 3, to make or cause to be made all payments on the Notes in accordance with the terms thereof. Such payments shall be made to the Holder or Holders of Notes in accordance with the terms of the Notes, the provisions contained in this Agreement, the Indenture attached hereto as Annex B and the procedures of Euroclear and Clearstream. All interest payments in respect of the Notes will be made by the Paying Agent on the relevant interest payment date (as set forth in the Note) to the Holders in whose names the Notes are registered at the close of business (in New York City) on the record date specified in the Notes next preceding the interest payment date or such other date as is provided in the Notes. So long as the Notes are represented by a single global certificate and registered in the name of a nominee of a common depositary for Euroclear and Clearstream, all interest payments on the Notes shall be made by the Paying Agent by wire transfer of immediately available funds in Euro to such Holder.

 

3.3

The Paying Agent will pay the principal amount of each Note and premium, if any, on the applicable maturity date or upon any redemption date with respect thereto, together with accrued and unpaid interest due at maturity or such redemption date, if any, upon presentation and surrender of such Note on or after the maturity date or redemption date thereof to the Paying Agent, or as specified in the Notes.

 

3.4

If for any reason the amounts received by the Paying Agent are insufficient to satisfy all claims in respect of all payments then due on the Notes, the Paying Agent shall forthwith notify the Issuer, and the Paying Agent shall not be obliged to pay any such claims until the Paying Agent has received the full amount of the monies then due and payable in respect of such Notes. If, however, the Paying Agent in its sole discretion shall make payment on the Notes on their maturity or redemption, or payments of interest or such other payments when otherwise due (it being understood that the Paying Agent shall have no obligation whatsoever to make any such payment) and the amount which should have been received is not received on such date, the Issuer agrees forthwith on demand to pay, or procure the payment of, to the Paying Agent, in addition to the amount which should have been paid hereunder, interest

 

2


  thereon from the day following the date when the amount unpaid should have been received under this Agreement to the date when such amount is actually received (inclusive) at a rate equal to the cost of the Paying Agent of funding such amount, as certified by the Paying Agent and expressed as a rate per annum.

 

3.5

The Paying Agent hereby agrees that:

 

  (i)

it will hold all sums held by it as Paying Agent for the payment of the principal of or premium, if any, or interest on the Notes in trust for the benefit of the Holders of the Notes entitled thereto, or for the benefit of the Trustee, as the case may be, until such sums shall be paid out to such Holders or otherwise as provided in Section 3.6 below and in the Indenture;

 

  (ii)

it will promptly give the Trustee notice of: (x) an Issuer deposit for the payment of principal of or premium, if any, or interest on the Notes, (y) any failure by the Issuer in the making of any deposit for the payment of principal of or premium, if any, or interest on the Notes that shall have become payable, and (z) any default by the Issuer in making any payment of the principal of or premium, if any, or interest on the Notes where the same shall be due and payable as provided in the Notes; and

 

  (iii)

at any time after an Event of Default (as defined in the Indenture) in respect of the Notes shall have occurred, the Paying Agent shall, if so required by notice in writing given by the Trustee to the Paying Agent: (y) thereafter, until otherwise instructed by the Trustee, act as agent of the Trustee under the terms of the Indenture; and/or (z) deliver all Notes and all sums, documents and records held by the Paying Agent in respect of the Notes to the Trustee or as the Trustee shall direct in such notice; provided that such notice shall be deemed not to apply to any document or record which the Paying Agent is obliged not to release by any applicable law or regulation.

 

3.6

Notwithstanding the foregoing:

 

  (i)

if any Note is presented or surrendered for payment to the Paying Agent and the Paying Agent has delivered a replacement therefor or has been notified that the same has been replaced, the Paying Agent shall as soon as is reasonably practicable notify the Issuer in writing of such presentation or surrender and shall not make payment against the same until it is so instructed by the Issuer and has received the amount to be so paid; and

 

  (ii)

the Paying Agent shall cancel each Note against surrender of which it has made full payment and shall deliver each Note so cancelled by it to the Trustee.

 

3


3.7

In no event, shall the Paying Agent be obliged to make any payments hereunder if it has not received the full amount of any payment.

 

  4

Indemnity

 

4.1

The Issuer shall indemnify and keep indemnified the Paying Agent against any losses, liabilities, costs, claims, actions or demands which it may incur or which may be made against it as a result of or in connection with its appointment or the exercise of its powers and duties under this Agreement or in respect of the Issuer’s issue of Notes, except to the extent that they have resulted from the Paying Agent’s negligence, wilful misconduct or bad faith. The Paying Agent shall notify the Issuer promptly of any claim for which it may seek indemnity. The failure of the Paying Agent to so notify the Issuer will relieve the Issuer from any liability which it may have to the Paying Agent for contribution or otherwise under the indemnity contained in this Section, but only to the extent that the Issuer is materially prejudiced as a proximate result of such failure. The Issuer shall defend the claim and the Paying Agent shall cooperate in the defense. The Paying Agent may have separate counsel in any such defense, but the fees and expenses of such counsel shall be at the expense of the Paying Agent, unless: (i) the employment of such counsel has been specifically authorized in writing by the Issuer; (ii) the Issuer has failed promptly to assume the defense and employ counsel reasonably satisfactory to the Paying Agent; or (iii) the named parties to any such action (including any impleaded parties) include both the Paying Agent and the Issuer or any affiliate of the Issuer, and such Paying Agent shall have reasonably concluded that either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the Issuer or such affiliate of the Issuer or (y) a conflict may exist between the Paying Agent and the Issuer or such affiliate of the Issuer. The Issuer need not pay for any settlement without its consent.

 

4.2

The indemnity contained in this Section shall survive the termination or expiry of this Agreement and the resignation or removal of the Paying Agent.

 

  5

General

 

  5.1

In acting under this Agreement, the Paying Agent shall not (a) be under any fiduciary duty towards any person, (b) be responsible for or liable in respect of the authorization, validity or legality of any Note amount paid by it hereunder (except to the extent that any such liability is determined by a court of competent jurisdiction to have resulted from the Paying Agent’s negligence, wilful misconduct or bad faith), (c) be under any obligation towards any person other than the Trustee and Issuer or (d) assume any relationship of agency or trust for or with any Holder.

 

  5.2

The Paying Agent shall be entitled to treat the registered Holder of any Note as the absolute owner of such Note for all purposes and make payments thereon accordingly.

 

  5.3

The Paying Agent may exercise any of its rights or duties hereunder by or through agents or attorneys, and shall not be responsible for any misconduct thereof, provided such agent or attorney has been appointed with due care. Each such agent making any payment on the Notes shall be a United States person (as defined in Section 7701(a)(30)

 

4


  of the Internal Revenue Code) that is a “financial institution” within the meaning of Treasury Regulation Section 1.1441-1(c)(5) and a U.S. financial institution within the meaning of Treasury Regulation Section 1.1471-1(b)(127).

 

5.4

The Paying Agent shall not exercise any lien, right of set-off or similar claim against any Holder of a Note in respect of moneys payable by it under this Agreement; however, should the Paying Agent elect to make a payment pursuant to Section 3.4 hereof, it shall be entitled to appropriate for its own account out of the funds received by it under Section 3 an amount equal to the amount so paid by it.

 

5.5

The Paying Agent may (at the expense of the Issuer) consult, on any matter concerning its duties hereunder, any legal adviser or other expert selected by it, and the Paying Agent shall not be liable in respect of anything done, or omitted to be done in reasonable reliance on that adviser’s opinion. At any time, the Paying Agent may apply to any duly authorized representative of the Issuer for a written instruction, and shall not be liable for an action lawfully taken or omitted to be taken in accordance with such instruction. Notwithstanding anything to the contrary herein, in no event shall the Paying Agent be entitled to reimbursement of the expenses of such legal adviser or expert with respect to any matter arising from the Paying Agent’s negligence, wilful misconduct or bad faith. The Paying Agent shall promptly notify the Issuer of any action taken or omitted by the Paying Agent in reliance upon such advice.

 

5.6

The Paying Agent shall be entitled to rely, and shall not be liable in respect of anything done or suffered by it in reliance, on any notice, document, communication or information reasonably believed in good faith by it to be genuine and given by the proper parties.

 

5.7

The Paying Agent shall be obliged to perform only such duties as are specifically set forth herein and in the Notes, and no implied duties or obligations shall be read into this Agreement or the Notes against the Paying Agent.

 

5.8

The Paying Agent shall not be liable to account to the Issuer for any interest or other amounts in respect of funds received by it from the Issuer. Money held by the Paying Agent need not be segregated except as required by law.

 

5.9

No provision of this Agreement or the Notes shall require the Paying Agent to risk or expend its own funds, or to take any action which in its reasonable judgment would result in any expense or liability accruing to it.

 

5.10

In no event will the Paying Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, severe loss or severe malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Paying Agent will use best reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

5


5.11

The Paying Agent shall have no duty to inquire as to the performance of the covenants of the Issuer, nor shall it be charged with knowledge of any default or Event of Default under the Indenture.

 

5.12

Notwithstanding any provision of this Agreement to the contrary, the Paying Agent will not in any event be liable for special, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

5.13

The Paying Agent, its officers, directors, employees and shareholders may become the owners of, or acquire any interest in, the Notes, with the same rights that it or they would have if it were not the Paying Agent, and may engage or be interested in any financial or other transaction with the Issuer as freely as if it were not the Paying Agent.

 

5.14

The Paying Agent shall retain the right not to act and shall not be held liable for refusing to act unless it has received clear and reasonable documentation which complies with the terms of this Agreement.

 

5.15

The Issuer will supply the Paying Agent with the names and specimen signatures of its authorized persons as soon as practicable after the date hereof.

 

  6

Change of Paying Agent

 

6.1

Resignation or Removal of Paying Agent. Any time, other than on a day during the forty-five (45) day period preceding any payment date for Issuer’s Notes, the Paying Agent may resign by giving at least forty-five (45) days’ prior written notice to Issuer; and the Paying Agent’s agency shall be terminated and its duties shall cease upon expiration of such forty-five (45) days or such lesser period of time as shall be mutually agreeable to Paying Agent and Issuer. At any time, following at least forty-five (45) days’ prior written notice (or such lesser period of time as shall be mutually agreeable to the Paying Agent and the Issuer) from the Issuer, the Paying Agent may be removed from its agency. Such removal shall become effective upon the expiration of the forty-five (45) day or agreed lesser time period (provided that any such removal shall be immediate in case the Paying Agent shall be adjudicated bankrupt or insolvent), and upon payment to the Paying Agent of all amounts payable to it in connection with its agency. In such event, following payment of its fees and expenses, the Paying Agent shall promptly deliver to the Issuer, or to the Issuer’s designated representative, all Notes (if any) and cash (if any) belonging to the Issuer and, at the Issuer’s expense, shall furnish to the Issuer, or to the Issuer’s designated representative, such information regarding the status of the Issuer’s outstanding Notes reasonably requested by the Issuer.

 

6.2

Any corporation into which a Paying Agent may be merged or consolidated or any corporation resulting from any merger or consolidation to which such Paying Agent is a party or any corporation to which such Paying Agent shall sell or otherwise transfer all or substantially all of its corporate trust or agency assets shall on the date on which such merger, consolidation or transfer becomes effective, become the successor to such Paying Agent under this Agreement without the execution or filing of any paper or any further act on the part of the parties hereto; provided that such corporation complies with Section 5.3 of this Agreement and provides the information required by Section 10.1 of this Agreement.

 

6


  7

Compensation, Fees and Expenses

 

7.1

The Issuer will pay to the Paying Agent the compensation, fees and expenses in respect of the Paying Agent’s services as separately agreed with the Paying Agent.

 

7.2

The Issuer will also pay all reasonable documented out-of-pocket expenses (including legal expenses) incurred by the Paying Agent in connection with its services hereunder, together with any applicable value added tax and stamp, issue, or other documentary taxes and duties. For the avoidance of doubt, the Issuer shall not pay any expenses of or other amounts to the Paying Agent which expenses or amounts are attributable to the Paying Agent’s, or its officers’, directors’, employees’ or shareholders’ negligence, willful misconduct or bad faith.

 

  8

Notices

 

8.1

Each notice or communication under this Agreement shall be made in writing, by facsimile or email or otherwise in accordance with this Section 8. Each communication or document to be delivered to any party under this Agreement shall be sent to that party at the facsimile number, email or address, and marked for the attention of the person (if any), from time to time designated by that party to the Paying Agent (or, in the case of the Paying Agent, by it to each other party) for the purpose of this Agreement. The initial telephone number, facsimile number, email, address and person so designated are:

in the case of the Issuer:

Thermo Fisher Scientific (Finance I) B.V.

c/o Thermo Fisher Scientific Inc.

168 Third Avenue

Waltham, Massachusetts 02451

Attention: Michael A. Boxer

Facsimile.: (781) 622-1283

With a copy to (which shall not constitute notice):

Wilmer Cutler Pickering Hale and Dorr LLP

60 State Street

Boston, Massachusetts 02109

Facsimile: (617) 526-6000

Email: Hal.Leibowitz@wilmerhale.com

Attention:    Hal J. Leibowitz

 

7


in the case of the Paying Agent:

The Bank of New York Mellon (London Branch)

One Canada Square, London E14 5AL

Attention: Corporate Trust Administration

Tel no: +44 (0) 207 964 5028

Facsimile: +44 (0) 207 964 2536

With a copy to (which shall not constitute notice):

The Bank of New York Mellon Trust Company, N.A.

500 Ross Street, 12th Floor

Pittsburgh, PA 15262

Facsimile: (412) 234-8377

 

8.2

Any notice hereunder given by facsimile, email or letter shall be effective when receipt is confirmed by the recipient, and any notice delivered in person shall be effective when delivered. Notwithstanding the foregoing sentence, any communication delivered outside normal business hours in the city in which the recipient is located shall be deemed to be received on the next business day in such city.

In no event, shall the Paying Agent be liable for any losses arising from the Paying Agent receiving or transmitting any data from or to an authorized person via any non-secure method of transmission or communication, such as but without limitation, by facsimile or email. The Issuer accepts that some methods of communication are not secure and the Paying Agent shall not incur any liability for receiving instructions via any such non-secure method. The Paying Agent is authorized to comply with and rely upon any such notice, instruction or other communications reasonably and in good faith believed by it to have been sent or given by an authorized person. The Issuer shall use all reasonable endeavours to ensure that instructions transmitted to the Paying Agent pursuant to this Agreement are complete and correct. Any instructions shall be conclusively deemed to be valid instructions from the Issuer to the Paying Agent for the purposes of this Agreement (subject to the reasonable, good faith qualifications on the Paying Agent’s understanding of any such notice, instruction or other communication as set forth above).

 

  9

Governing Law and Jurisdiction; Waiver of Jury Trial

 

9.1

The interpretation, validity and enforcement of this Agreement, and all legal actions brought under or in connection with the subject matter of this Agreement, shall be governed by the laws of the State of New York.

 

9.2

Any court action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a New York State court sitting in the Borough of Manhattan, City of New York. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum.

 

8


9.3

Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in the Federal or state courts sitting in the Borough of Manhattan, City of New York, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.

 

9.4

EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION CONTEMPLATED HEREBY.

 

  10

U.S. Tax Forms

 

10.1

The Paying Agent shall deliver to the Issuer two properly completed and executed originals of IRS Form W-9 (or appropriate successor form) upon entering into this Agreement (and from time to time thereafter upon reasonable request of the Issuer). The Paying Agent agrees that if any form or certification that it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification promptly or promptly notify the Issuer in writing of its legal inability to do so.

Any agent appointed pursuant to Section 5.3 hereof making any payment on the Notes shall deliver to the Issuer two properly completed and executed originals of IRS Form W-9 (or appropriate successor form) upon such appointment (and from time to time thereafter upon reasonable request of the Issuer).

 

10.2

The terms of this Section 10 shall survive the termination of this Agreement.

 

  11

FATCA

Notwithstanding any other provision of this Agreement, the Paying Agent shall be entitled to make a deduction or withholding (including the deduction of FATCA Withholding Tax) from any payment which it makes under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant holder failing to satisfy any certification or other requirements in respect of the Notes, in which event the Paying Agent shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted, and the Paying Agent shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax. In addition, the Issuer agrees to provide the Paying Agent tax-information about holders or the transactions contemplated hereby (including any modification to the terms of such transactions), to the extent such information is directly available to the Issuer, so that the Paying Agent can determine whether it has tax-related obligations under applicable law

Definitions:

FATCA Withholding Tax ” means any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant

 

9


to Sections 1471 through 1474 of the Code (or any regulations or agreements thereunder or official interpretations thereof) or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement).

Code ” means the US Internal Revenue Code of 1986, as amended.

 

  12

Headings

The headings of the Sections of this Agreement are inserted for convenience only and shall not constitute a part of or affect in any way the meaning or interpretation of this Agreement.

 

  13.

Counterparts

This Agreement may be executed by each of the parties hereto in any number of counterparts and by PDF or other electronic signature, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all such counterparts shall together constitute one and the same agreement.

*    *    *    *    *

 

10


In witness whereof the parties hereto have caused this Agreement to be duly executed the day and year first above written.

 

Thermo Fisher Scientific (Finance I) B.V.

 

                                                         as Issuer

By:  

/s/ Anthony H. Smith

  Name:   Anthony H. Smith                        
  Title:   Managing Director                

 

Paying Agent

 

The Bank of New York Mellon (London Branch)

By:  

/s/ Latoya S. Elvin

  Name:   Latoya S. Elvin
  Title:   Vice President

 

Exhibit 4.4

CALCULATION AGENCY AGREEMENT

BETWEEN

THERMO FISHER SCIENTIFIC (FINANCE I) B.V.

AND

THE BANK OF NEW YORK MELLON, LONDON BRANCH

FLOATING RATE NOTES

THIS CALCULATION AGENCY AGREEMENT (this “ Agreement ”) is made as of August 8, 2018, between THERMO FISHER SCIENTIFIC (FINANCE I) B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of The Netherlands, with its corporate seat ( statutaire zetel ) at Breda, The Netherlands, and its registered office at Takkebijsters 1, 4817 BL Breda, The Netherlands, registered with the Dutch Trade Register of the Chamber of Commerce under number 66428319 (the “ Company ”), and THE BANK OF NEW YORK MELLON, LONDON BRANCH, as calculation agent (the “ Calculation Agent ”), whose principal executive office is located at One Canada Square, London E14 5AL.

W I T N E S S E T H :

WHEREAS, the Company proposes to issue and sell certain of its securities designated as Floating Rate Senior Notes due 2020 (the “ Notes ”), the interest rate on which will be based on three-month EURIBOR. The Notes are to be issued under an Indenture, dated as of August 9, 2016 (the “ Base Indenture ”), among the Company, Thermo Fisher Scientific Inc., as guarantor (the “ Guarantor ”), and The Bank of New York Mellon Trust Company, N.A., as Trustee (the “ Trustee ”), as supplemented by the Second Supplemental Indenture, dated as of August 8, 2018 (the “ Supplemental Indenture ” and together with the Base Indenture, the “ Indenture ”), among the Company, the Guarantor and the Trustee, which Indenture is attached hereto as Annex A . Terms used but not defined herein shall have the meanings assigned to them in the Indenture.

For the purpose of appointing an agent to calculate the interest rate on the Notes, the Company and the Calculation Agent, for good and valuable consideration, the receipt and sufficiency of which are hereby confirmed, agree as follows:

1.      Appointment of Calculation Agent .

Upon the terms and subject to the conditions contained herein, the Company hereby appoints the Calculation Agent as its Calculation Agent and the Calculation Agent hereby accepts such appointment as the Company’s agent for the purpose of calculating the interest rates on the Notes in the manner and at the times provided in the Notes and the Indenture.

2.      Calculation of Interest .

(a)    The Calculation Agent shall, with due care, calculate the amount of interest payable on the Notes in the manner and at the times set forth in Section 1.2(3) of the Supplemental Indenture, which is attached hereto along with the Base Indenture as Annex A .


(b)    As soon as practicable after each EURIBOR Interest Determination Date, the Calculation Agent will cause to be forwarded to the Company and the Trustee information regarding the interest rates, the interest periods, the amount of interest for each interest period and the relevant Interest Payment Date. The Calculation Agent will, upon the request of the holder of any Note, provide the interest rate then in effect and, if determined, the interest rate with respect to such Note that will become effective on the next Interest Reset Date.

(c)    In no event shall the interest rate be less than the minimum rate, if any, or more than the maximum rate, if any, designated in the applicable pricing supplement, or more than the maximum rate permitted by New York law, as the same may be modified by United States law of general application.

(d)    No amendment to the provisions of the Notes relating to the duties or obligations of the Calculation Agent hereunder may become effective without the prior written consent of the Calculation Agent, which consent shall not be unreasonably withheld.

(e)    The Calculation Agent, at the request of the Company, has determined, prior to the date of execution and delivery of this Agreement, the initial interest rate for the Notes. In connection with such determination, the Calculation Agent shall be entitled to the same rights, protections, exculpations and immunities otherwise available to it under this Agreement.

(f)    Notwithstanding anything to the contrary in this Agreement or the Supplemental Indenture, if, in the Calculation Agent’s sole opinion, either (i) the use of any benchmark or index specified in the Supplemental Indenture to calculate the Base Rate and/or any fallback arrangements therein are, where such benchmark or index materially changes or ceases to be provided, not in compliance with the European Union Benchmarks Regulation, the Calculation Agent shall not be obliged to perform its duties under the Supplemental Indenture and this Agreement (and shall incur no liability for any inaction) until such time as the Company has identified an acceptable replacement benchmark or index and instructed the Calculation Agent accordingly.

3.      Indemnity .

(a)    The Calculation Agent shall be entitled to such compensation as may be agreed upon with the Company for all services rendered by the Calculation Agent, and the Company promises to pay such compensation and to reimburse the Calculation Agent for the reasonable documented out-of-pocket expenses (including attorneys’ and other professionals’ fees and expenses) incurred by it in connection with the services rendered by it hereunder upon receipt of such invoices as the Company shall reasonably require. The Company also agrees to indemnify the Calculation Agent for, and to hold it harmless against, any and all loss, liability, damage, claim or expense (including the costs and expenses of defending against any claim

 

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(regardless of who asserts such claim) of liability) incurred by the Calculation Agent that arises out of or in connection with its accepting appointment as, or acting as, calculation agent hereunder, except such as may result from the negligence, willful misconduct or bad faith of the Calculation Agent or any of its agents or employees. The Calculation Agent shall incur no liability and shall be indemnified and held harmless by the Company for, or in respect of, any actions taken, omitted to be taken or suffered to be taken in reasonable reliance by the Calculation Agent on (i) the opinion or advice of legal or other professional advisors satisfactory to it or (ii) written instructions from the Company. The Calculation Agent shall not be liable for any error resulting from the use of or reliance on a source of information used in good faith and with due care to calculate any interest rate hereunder. Notwithstanding anything to the contrary herein, in no event shall the Calculation Agent be entitled to reimbursement of its expenses with respect to such calculation arising from the Calculation Agent’s negligence, wilful misconduct or bad faith. The Calculation Agent shall promptly notify the Company of any action taken or omitted by the Calculation Agent in reliance upon such source. Promptly after receipt by the Calculation Agent of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation in connection with the Calculation’s Agent’s appointment, or acting as, the calculation agent under this Agreement, the Calculation Agent shall provide notice to the Company. The Calculation Agent’s failure to provide such notice shall, to the extent that the Company is prejudiced as a result of such failure, relieve the Company of its obligation to indemnify and keep indemnified the Calculation Agent pursuant to this Section 3(a).

(b)    The Company, in its sole discretion, may elect to assume the defense of any demand, claim, action, suit, proceeding or investigation against the Calculation Agent and of which the Calculation Agent is required to provide notice to the Company pursuant to Section 3(a). The Calculation Agent shall cooperate in the Company’s defense of any such demand, claim, action, suit, proceeding or investigation. The Calculation Agent may have separate counsel in any such defense, but the fees and expenses of such counsel shall be at the sole expense of the Calculation Agent unless (i) the employment of such counsel has been specifically authorized in writing by the Company; (ii) the Company has failed promptly to assume the defense and employ counsel reasonably satisfactory to the Calculation Agent; or (iii) the named parties to any such action (including any impleaded parties) include both the Calculation Agent and the Company or any affiliate of the Company, and such Calculation Agent shall have reasonably concluded that either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the Company or such affiliate of the Company or (y) a conflict may exist between the Calculation Agent and the Company or such affiliate of the Company. The Company shall not be required to pay for or agree to any settlement without its prior written consent.

(c)    The provisions of this Section 3 shall survive the termination or expiration of this Agreement.

 

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4.      Limitations of Liability .

(a)    The Calculation Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered by it in reliance upon the terms of the Notes, any notice, direction, certificate, affidavit, statement or other paper, document or communication reasonably believed by it to be genuine and to have been approved or signed by the proper party or parties.

(b)    In no event shall the Calculation Agent be responsible or liable under this Agreement for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Calculation Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

(c)    In no event shall the Calculation Agent be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services, it being expressly understood that the Calculation Agent will use its reasonable best efforts to resume performance as soon as practicable following any such event.

5.      General .

(a)    In acting under this Agreement and in connection with Notes, the Calculation Agent is acting solely as agent of the Company and does not assume any obligations to or relationship of agency or trust for or with any of the owners or holders of the Notes.

(b)    The Calculation Agent, its officers, directors, employees and shareholders may become the owners of, or acquire any interest in, any Notes, with the same rights that it or they would have if it were not the Calculation Agent, and may engage or be interested in any financial or other transaction with the Company as freely as if the Calculation Agent were not the Calculation Agent.

(c)    The Calculation Agent may (at the expense of the Company) consult, on any matter concerning its duties hereunder, any legal adviser or other expert selected by it, and the Calculation Agent shall not be liable in respect of anything done, or omitted to be done in reasonable reliance on that adviser’s or other expert’s opinion. Notwithstanding anything to the contrary herein, in no event shall the Calculation Agent be entitled to reimbursement of the expenses of such legal adviser or expert with respect to any matter arising from the Calculation Agent’s negligence, wilful misconduct or bad faith. The Calculation Agent shall promptly notify the Company of any action taken or omitted by the Calculation Agent in reliance upon such advice.

 

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(d)    The Calculation Agent shall be obligated to perform such duties and only such duties as are herein specifically set forth, and no implied duties or obligations shall be read into this Agreement against the Calculation Agent.

(e)    Unless herein otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by it under any provision of this Agreement shall be sufficient if signed by any officer of the Company.

(f)    The Calculation Agent may perform any duties hereunder either directly or by or through agents or attorneys appointed by the Calculation Agent with due care, provided that the Calculation Agent shall be liable for any acts or omissions of such agents or attorneys to the same extent that the Calculation Agent would have been liable for such acts or omissions had it taken them directly.

6.      Resignation and Removal of the Calculation Agent; Successor Calculation Agents .

(a)    The Calculation Agent may at any time, other than on a day during the 45 day period preceding any payment date on the Notes, resign as calculation agent by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective; provided , however , that such date shall never be earlier than 45 days after the receipt of such notice by the Company, unless the Company agrees to accept less notice. The Calculation Agent may be removed at any time by the delivery to it of an instrument in writing signed on behalf of the Company specifying such removal and the date when it is intended to become effective. Such resignation or removal shall take effect upon the date of the appointment by the Company, as hereinafter provided, of a successor calculation agent. A successor calculation agent shall be appointed by the Company by an instrument in writing signed on behalf of the Company and the successor calculation agent. Upon the appointment of a successor calculation agent and acceptance by it of such appointment, the Calculation Agent shall cease to be the Calculation Agent. Upon its resignation or removal, the Calculation Agent shall be entitled to the payment by the Company of its compensation, if any is owed to it, for services rendered hereunder to the date of the Calculation Agent’s resignation or removal, and to the reimbursement of all reasonable out-of-pocket expenses incurred in connection with such services and to the payment of all other amounts owed to it hereunder for such period.

(b)    Any successor calculation agent appointed hereunder shall execute and deliver to the Calculation Agent and to the Company an instrument accepting such appointment hereunder, and thereupon such successor calculation agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts,

 

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immunities, duties and obligations of the Calculation Agent with like effect as if originally named as calculation agent hereunder, and the Calculation Agent, upon payment of its charges and disbursements then unpaid, as described in Sections 6(a) and 7 hereof, shall thereupon become obliged to transfer and deliver, and such successor calculation agent shall be entitled to receive, copies of any relevant records maintained by the Calculation Agent.

(c)    Any corporation into which the Calculation Agent may be merged, or any corporation with which the Calculation Agent may be consolidated, or any corporation resulting from any merger or consolidation or to which the Calculation Agent shall sell or otherwise transfer all or substantially all of its corporate trust assets or business shall, to the extent permitted by applicable law, be the successor calculation agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, consolidation or sale shall forthwith be given to the Company and the Trustee.

7.      Compensation, Fees and Expenses .

(a)    The Company will pay to the Calculation Agent the compensation, fees and expenses in respect of the Calculation Agent’s services as separately agreed in writing with the Calculation Agent.

(b)    The Company will also pay all reasonable documented out-of-pocket expenses (including legal expenses) incurred by the Calculation Agent in connection with its services hereunder. For the avoidance of doubt, the Company shall not pay any expenses of or other amounts to the Calculation Agent which expenses or amounts are attributable to the Calculation Agent’s, or its officers’, directors’, employees’ or shareholders’ negligence, willful misconduct or bad faith.

8.      Notices .

(a)    Any notice required to be given hereunder shall be delivered in person, sent by letter, facsimile or e-mail or communicated by telephone (subject, in the case of communication by telephone, to confirmation dispatched within 24 hours by letter, facsimile or e-mail),

in the case of the Company, to:

Thermo Fisher Scientific (Finance I) B.V.

c/o Thermo Fisher Scientific Inc.

168 Third Avenue

Waltham, Massachusetts 02451

Attn: Michael A. Boxer

Facsimile.: (781) 622-1283

 

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With a copy to (which shall not constitute notice):

Wilmer Cutler Pickering Hale and Dorr LLP

60 State Street

Boston, Massachusetts 02109

Attention: Hal J. Leibowitz

Facsimile: (617) 526 – 6000

Email: Hal.Leibowitz@wilmerhale.com

in the case of the Calculation Agent, to:

The Bank of New York Mellon (London Branch)

One Canada Square, London E14 5AL

Attention: Corporate Trust Administration

Tel no: +44 (0) 207 964 5028

Facsimile: +44 (0) 207 964 2536

With a copy to (which shall not constitute notice):

The Bank of New York Mellon Trust Company, N.A.

500 Ross Street, 12 th Floor

Pittsburgh, PA 15262

Facsimile.: (412) 234-8377

, or to any other address of which any party shall have notified the others in writing as herein provided. Any notice hereunder given by facsimile, e-mail or letter shall be effective when receipt is confirmed by the recipient, and any notice hereunder given by telephone or delivered in person shall be effective when delivered (subject, in the case of any notice by telephone, to confirmation of receipt by the recipient of the confirmatory communication dispatched within 24 hours as provided above). Notwithstanding the foregoing sentence, any communication delivered outside normal business hours in the city in which the recipient is located shall be deemed to be received on the next business day in such city.

(b)    The Calculation Agent agrees to accept and act upon instructions or directions pursuant to this Agreement sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided , however , that the Calculation Agent shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons,

 

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which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Calculation Agent e-mail or facsimile instructions (or instructions by a similar electronic method) and the Calculation Agent in its discretion elects to act upon such instructions, the Calculation Agent’s reasonable and good faith understanding of such instructions shall be deemed controlling. Subject to Section 3, the Calculation Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Calculation Agent’s reliance upon and compliance with such instructions notwithstanding such instructions’ conflict or inconsistency with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Calculation Agent, including without limitation the risk of the Calculation Agent acting on unauthorized instructions, and the risk or interception and misuse by third parties (subject to the reasonable, good faith qualifications on the Calculation Agent’s understanding of any such instructions and directions as set forth above).

9.      Miscellaneous .

(a)    This Agreement and the Calculation Agent’s appointment as Calculation Agent hereunder shall be construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such state, and without regard to conflicts of laws principles, and shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of each of the parties hereto. Any court action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a New York State court sitting in the Borough of Manhattan, City of New York. Each party to this Agreement submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum.

(b)    This Agreement may be executed by each of the parties hereto in any number of counterparts and by PDF or other electronic signature, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all such counterparts shall together constitute one and the same agreement.

(c)    In the event of any conflict relating to the rights or obligations of the Calculation Agent in connection with the calculation of the interest rate on the Notes, the relevant terms of this Agreement shall govern such rights and obligations.

(d)    EACH OF THE COMPANY AND THE CALCULATION AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION CONTEMPLATED HEREBY.

 

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(e)    The headings of the Sections of this Agreement are inserted for convenience only and shall not constitute a part of or affect in any way the meaning or interpretation of this Agreement.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.

 

THERMO FISHER SCIENTIFIC

(FINANCE I) B.V.

By:  

/s/ Anthony H. Smith

  Name:   Anthony H. Smith
  Title:   Managing Director

THE BANK OF NEW YORK MELLON,

LONDON BRANCH,

as Calculation Agent

By:  

/s/ Latoya S. Elvin

  Name:   Latoya S. Elvin
  Title:   Vice President

Exhibit 5.1

 

LOGO

+1 202 663 6060 (t)

+1 202 663 6363 (f)

www.wilmerhale.com

August 8, 2018

Thermo Fisher Scientific Inc.

168 Third Avenue

Waltham, Massachusetts 02451

Thermo Fisher Scientific (Finance I) B.V.

Takkebijsters 1

4817 BL Breda

Netherlands

Re: Floating Rate Senior Notes due 2020

Ladies and Gentlemen:

We have acted as U.S. counsel for Thermo Fisher Scientific Inc., a Delaware corporation (the “ Company ”), in connection with the offer and sale by Thermo Fisher Scientific (Finance I) B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of The Netherlands and an indirect, wholly-owned subsidiary of the Company (“ Thermo Fisher International ”), of €600,000,000 aggregate principal amount of the Thermo Fisher International’s Floating Rate Senior Notes due 2020 (the “ Notes ”) pursuant to an underwriting agreement dated August 6, 2018 (the “ Underwriting Agreement ”) among Thermo Fisher International, the Company, as parent guarantor, and Merrill Lynch International, as underwriter. The Notes will be fully and unconditionally guaranteed as to payment of principal, premium, if any, and interest on a senior unsecured basis by the Company (the “ Guarantee ” and together with the Notes, the “ Securities ”). The Securities will be issued pursuant to an indenture dated as of August 9, 2016 (the “ Base Indenture ”) among Thermo Fisher International, the Company, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Trustee ”), as supplemented by the Second Supplemental Indenture of even date herewith (the “ Supplemental Indenture ” and together with the Base Indenture, the “ Indenture ”) among Thermo Fisher International, the Company, as guarantor, and the Trustee, and will be subject to the Paying Agency Agreement (the “ Paying Agency Agreement ”) and the Calculation Agency Agreement (the “ Calculation Agency Agreement ”), each dated as of August 8, 2018, between Thermo Fisher International and The Bank of New York Mellon, London Branch, as paying agent and calculation agent, respectively.

As such counsel, we have assisted in the preparation and filing with the Securities and Exchange Commission (the “ Commission ”) of the Registration Statement on Form S-3 (File No. 333-209867) under the Securities Act of 1933, as amended (the “ Securities Act ”), on March 1, 2016, and the Post-Effective Amendment No. 1 to Registration Statement on Form S-3 (File No. 333-209867) under the Securities Act on August 1, 2016 (such Registration Statement, as amended by the Post-Effective Amendment No. 1 thereto, the “ Registration Statement ”),

 

Wilmer Cutler Pickering Hale and Dorr LLP , 1875 Pennsylvania Avenue NW, Washington, DC 20006

Beijing      Berlin      Boston      Brussels       Denver      Frankfurt      London      Los Angeles      New York      Palo Alto      Washington


LOGO

Thermo Fisher Scientific Inc.

Thermo Fisher Scientific (Finance I) B.V.

August 8, 2018

Page 2

 

including the prospectus dated August 1, 2016 (the “ Base Prospectus ”), as supplemented by the preliminary prospectus supplement dated August 6, 2018 (the “ Preliminary Prospectus Supplement ”), and the prospectus supplement dated August 6, 2018 (the “ Prospectus Supplement ”).

We have examined and relied upon corporate or other proceedings of the Company regarding the authorization, execution and delivery of the Indenture, the Underwriting Agreement and the issuance of the Securities, the Paying Agency Agreement, the Calculation Agency Agreement, the Registration Statement, the Base Prospectus, the Preliminary Prospectus Supplement and the Prospectus Supplement. We have also examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such other corporate records of the Company, such other agreements and instruments, certificates of public officials, officers of the Company, directors of Thermo Fisher International and other persons, and such other documents, instruments and certificates as we have deemed necessary as a basis for the opinions hereinafter expressed.

In our examination of the documents referred to above, we have assumed the genuineness of all signatures, the legal capacity of all signatories, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of such original documents, and the completeness and accuracy of the corporate minute books of the Company.

We are expressing no opinion herein as to the application of any federal or state law or regulation to the power, authority or competence of any party to any agreement with respect to any of the Securities other than the Company. We have assumed that such agreements are the valid and binding obligations of each party thereto other than the Company, and enforceable against each such other party in accordance with their respective terms.

In rendering the opinions set forth below, we have relied as to certain matters on information obtained from public officials and officers of the Company, and we have assumed (i) the due execution and delivery, pursuant to due authorization, of the Indenture by the Trustee; (ii) that the Trustee has the power, corporate or other, to enter into and perform its obligations under the Indenture; (iii) that the Indenture will be a valid and binding obligation of the Trustee; (iv) that the Trustee shall have been qualified under the Trust Indenture Act of 1939, as amended; and (v) the accuracy of the opinion letter of Linklaters LLP, dated as of the date hereof and addressed to Thermo Fisher International. We have also assumed the due authentication of the Notes by the Trustee.

We have assumed for purposes of our opinions below that no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by Thermo Fisher International of the Indenture or the Securities or, if any such authorization, approval, consent, action, notice or filing is required, it will have been duly obtained, taken, given or made and will be in full force and effect.


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Thermo Fisher Scientific Inc.

Thermo Fisher Scientific (Finance I) B.V.

August 8, 2018

Page 3

 

Our opinions below are qualified to the extent that they may be subject to or affected by (i) applicable bankruptcy, insolvency, reorganization, moratorium, usury, fraudulent conveyance or similar laws relating to or affecting the rights or remedies of creditors generally, (ii) duties and standards imposed on creditors and parties to contracts, including, without limitation, requirements of materiality, good faith, reasonableness and fair dealing, (iii) general equitable principles, and (iv) acceleration of the Securities which may affect the collectability of that portion of the stated principal amount thereof that might be determined to constitute unearned interest thereon. Furthermore, we express no opinion as to the availability of any equitable or specific remedy upon any breach of the Indenture or the Securities, or to the successful assertion of any equitable defenses, inasmuch as the availability of such remedies or the success of any equitable defenses may be subject to the discretion of a court. We also express no opinion herein as to the laws of any state or jurisdiction other than the state laws of the State of New York and the General Corporation Law of the State of Delaware. We also express no opinion herein with respect to compliance by the Company or Thermo Fisher International with securities or “blue sky” laws of any state or other jurisdiction of the United States or of any foreign jurisdiction. We express no opinion and make no statement herein with respect to the antifraud laws of any jurisdiction. We have not acted as counsel for Thermo Fisher International with respect to matters of Dutch law or other applicable foreign law.

We also express no opinion herein as to any provision of any agreement (i) that may be deemed to or construed to waive any right of the Company or Thermo Fisher International; (ii) to the effect that rights and remedies are not exclusive, that every right or remedy is cumulative and may be exercised in addition to or with any other right or remedy and does not preclude recourse to one or more other rights or remedies; (iii) relating to the effect of invalidity or unenforceability of any provision of any agreement on the validity or enforceability of any other provision thereof; (iv) that is in violation of public policy; (v) relating to indemnification and contribution with respect to securities law matters; (vi) that provides that the terms of any agreement may not be waived or modified except in writing; (vii) purporting to indemnify any person against his, her or its own negligence or intentional misconduct; (viii) requiring the payment of penalties, consequential damages or liquidated damages or (ix) relating to choice of law or consent to jurisdiction.

On the basis of, and subject to, the foregoing, we are of the opinion that when the Securities have been duly executed by the Company and Thermo Fisher International, and the Notes have been duly authenticated by the Trustee in accordance with the terms of the Indenture and delivered to the purchasers thereof against payment of the consideration therefor duly approved by the Company, the Notes will constitute valid and binding obligations of Thermo Fisher International, enforceable against Thermo Fisher International in accordance with their terms, and the Guarantee will constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.


LOGO

Thermo Fisher Scientific Inc.

Thermo Fisher Scientific (Finance I) B.V.

August 8, 2018

Page 4

 

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments that might affect any matters or opinions set forth herein.

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Company’s Current Report on Form 8-K to be filed on the date hereof, which Form 8-K will be incorporated by reference into the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our name therein and in the related Prospectus and in any prospectus supplement under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

 

Very truly yours,

WILMER CUTLER PICKERING

HALE AND DORR LLP

By:  

/s/ Erika L. Robinson

  Erika L. Robinson, a Partner

Exhibit 5.2

 

  

Linklaters LLP

World Trade Centre Amsterdam

Zuidplein 180

1077 XV Amsterdam

Telephone (31 20) 799 6200

Facsimile (31 20) 799 6300

Thermo Fisher Scientific (Finance I) B.V.

Takkebijsters 1

4817 BL Breda

The Netherlands

  
   8 August 2018

Dear Sirs

Thermo Fisher Scientific (Finance I) B.V. (the “Company”) – €600,000,000 Floating Rate Senior Notes due 2020 (the “Securities”) guaranteed by Thermo Fisher Scientific Inc.

 

1

We have acted as your Dutch legal advisers in connection with the Post-Effective Amendment No. 1 to Form S-3 registration statement filed with the United States Securities and Exchange Commission on 1 August 2016 (the “ Registration Statement ”) relating to the registration (the “ Registration ”) under the United States Securities Act of 1933 (as amended) (the “ Securities Act ”) of, inter alia , debt securities of the Company, and the issuance by the Company of the Securities, which are stated to be irrevocably and unconditionally guaranteed as to payment of principal, premium, if any, and interest by Thermo Fisher Scientific Inc. (the “ Guarantor ”), a Delaware corporation. The Securities are being issued pursuant to the Indenture (as defined in the Schedule to this letter). We have taken instructions solely from the Company.

 

2

This opinion is limited to Dutch law as applied by the Dutch courts and published in print and in effect on the date of this opinion, excluding tax law, the laws of the European Union (insofar as not implemented or incorporated in Dutch law) and market abuse, competition and procurement laws. This opinion is given on the basis that we undertake no responsibility to notify any addressee of this opinion of any change in Dutch law after the date of this opinion. It is given in accordance with customary Dutch legal practice and on the basis that it and all matters relating to it will be governed by and construed in accordance with Dutch law. In this opinion, Dutch legal concepts are expressed in English terms and not in their original Dutch terms. The Dutch concepts concerned may not be identical to the concepts described by the English terms as they may exist or be interpreted under the laws of jurisdictions other than the Netherlands.

 

3

For the purpose of this opinion we have examined the documents listed and, where appropriate, defined (together with certain other terms used herein) in the Schedule to this letter. Our examination has been limited to the text of the documents. In addition we have obtained the following confirmations given by telephone or otherwise on 7 August 2018 (noting that we have not been able to do so on the date of this opinion given the time of delivery of this opinion on this date):

 

This communication is confidential and may be privileged or otherwise protected by work product immunity.

Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC326345. It is a law firm authorised and regulated by the Solicitors Regulation Authority. The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP together with a list of those non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ, England or on www.linklaters.com and such persons are either solicitors, registered foreign lawyers or European lawyers. Linklaters LLP is also registered with the Dutch Trade Register of the Chamber of Commerce under number 34367130.

Please refer to www.linklaters.com/regulation for important information on our regulatory position.


3.1

Confirmation from the Chamber of Commerce that the Trade Register Extract is up to date in all respects material for this opinion.

 

3.2

Confirmation from the insolvency office ( afdeling insolventie ) of the competent court in Breda ( Rechtbank Zeeland-West-Brabant ) and the central insolvency register ( centraal insolventieregister ) that the Company is not registered as having been declared bankrupt ( failliet verklaard ) or granted suspension of payments ( surseance verleend ).

 

4

We have assumed the following:

 

4.1

All copy documents conform to the originals and all originals are genuine and complete.

 

4.2

Each signature is the genuine signature of the individual concerned.

 

4.3

All documents were at their date, and have through the date hereof remained, accurate, complete and in full force and effect without modification, and have been or will have been executed in the same form as examined by us for the purposes of this opinion and, in the case of the Securities, authenticated, effectuated (where required), issued, accepted and paid for in compliance with the Indenture. All confirmations referred to in paragraph 3 were true at that time and remain true on the date hereof.

 

4.4

The Company has not (i) had its assets placed under administration ( onder bewind gesteld ), (ii) been dissolved ( ontbonden ), merged ( gefuseerd ) or split up ( gesplitst ), or (iii) been subjected to emergency measures ( noodregeling ) or any prevention, intervention and resolution measure or any recovery or resolution tool, power, action or other measure or proceeding however described under Directive 2014/59/EU of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions or Regulation (EU) No. 806/2014 (the Single Resolution Mechanism Regulations) or been the subject of any event ( gebeurtenis ) (including preparation of a transfer plan), in each case under the Financial Supervision Act ( Wet op het financieel toezicht ) or applicable European regulation (collectively, “ Measures ”) or any one of the insolvency and winding-up proceedings listed in Annex A to Regulation (EU) 2015/848 on insolvency proceedings (recast) (“ Insolvency Proceedings ”, including, inter alia , bankruptcy ( faillissement )).

 

4.5

The entry into and performance of the Indenture and the transactions contemplated thereby, including the issuance of the Securities, are conducive to the corporate objects and in the interest of the Company.

 

4.6

The written resolutions referred to in the Schedule have been validly passed, and any conditions and limitations contained therein have been or will have been complied with.

 

4.7

No advice is required from any works council under the Works Councils Act ( Wet op de ondernemingsraden ) in connection with the Registration, the Company’s entry into and performance of the Indenture and issue and performance of the Securities.

 

4.8

Any powers of attorney, the Securities and the Indenture have been or will have been signed on behalf of the Company by a member of its management board in office at the time of signing or, in the case of the Indenture, by a person or persons duly authorised to do so under a valid power of attorney, if in facsimile with the approval of the signatory.

 

4.9

No member of the Company’s management board has a conflict of interest ( tegenstrijdig belang ) with respect to the Registration, the Securities or the Indenture (or the transactions contemplated thereby).

 

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4.10

All documents and their entry into and performance are within the capacity and powers (corporate and otherwise) of, and have been or will have been validly authorised, entered into, accepted and duly performed by, each party thereto other than the Company.

 

4.11

All documents (including the Securities), including any governing law provisions contained therein, are valid, binding and enforceable on each party (including the Company) under the law to which they are expressed to be subject where that is not Dutch law, and under any applicable law other than Dutch law. Words and phrases used in those documents have the same meaning and effect as they would if those documents were governed by Dutch law. The Securities are not in bearer form but in registered form.

 

4.12

Insofar as any obligation of the Company under the Indenture or the Securities falls to be performed in, or is otherwise affected by the laws of, any jurisdiction other than the Netherlands, its performance would not be illegal or ineffective under the laws of that jurisdiction.

 

4.13

There are no provisions of any law, other than Dutch law, which may apply to the Securities or the Indenture (or the transactions contemplated thereby) or to any power of attorney issued by the Company, which would affect this opinion.

 

4.14

The Securities will not be admitted to trading on a regulated market in the Netherlands and, if offered in the Netherlands, will be offered solely to qualified investors ( gekwalificeerde beleggers ) within the meaning of Section 1:1 of the Financial Supervision Act ( Wet op het financieel toezicht ). The Securities have individual denominations of at least €100,000 (or its foreign currency equivalent).

 

4.15

No Securities will be issued beyond the maximum amount as may be authorised by the management board of the Company and approved by its general meeting if required.

 

4.16

The Company does not and will not come to qualify as a bank within the meaning of the Financial Supervision Act ( Wet op het financieel toezicht ), or if it does, it complies and will continue to comply with the conditions for one of the exemptions contained in the Financial Supervision Act from the requirement to be authorised or licensed.

 

5

In our opinion:

 

5.1

The Company has been incorporated and is existing as a limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) under Dutch law.

 

5.2

The Company has the corporate power to enter into and perform the Indenture and to issue and perform the Securities.

 

5.3

The Company has taken all necessary corporate action to authorise its entry into and performance of the Indenture and issuance and performance of the Securities.

 

5.4

When signed on behalf of the Company as set out in paragraph 4.8, the Indenture and the Securities will have been validly signed by the Company.

 

5.5

The entry into and performance of the Indenture and the issue and performance of the Securities by the Company does not violate Dutch law or its articles of association.

 

5.6

Under Dutch law and in accordance with and subject to Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) (the “ Rome I Regulation ”), the choice of New York law as the governing law of the Indenture and the Securities is recognised as a valid choice of law and accordingly New York law governs the validity, binding effect and enforceability of the Indenture and the Securities against the Company.

 

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6

This opinion is subject to any matters not disclosed to us and to the following qualifications:

 

6.1

The term “enforceability” as used above (including the term “binding effect” in relation to proceedings in a Dutch court to enforce a judgment rendered by a New York court or otherwise), or any other reference by whatever term to enforcement, means that the obligations assumed by the relevant party under the relevant document are of a type which the Dutch courts enforce. It does not mean that those obligations (or such judgment) will necessarily be enforced in all circumstances in accordance with their (or its) terms. We do not express any opinion as to whether specific performance or injunctive relief would be available.

 

6.2

This opinion is limited by, and therefore we do not express any opinion or statement as to the consequences of, any Insolvency Proceeding, Measure, resolution insolvency, liquidation ( ontbinding en vereffening ), reorganisation, fraudulent conveyance ( Actio Pauliana ) and other laws relating to or affecting the rights of creditors, and any sanctions and measures implemented or effective in the Netherlands under the Sanctions Act 1977 ( Sanctiewet 1977 ) or European Union regulations or otherwise by international sanctions.

 

6.3

Under Dutch law, a power of attorney does not preclude the principal from performing the legal acts covered by the power of attorney and can be made irrevocable only insofar as it is granted for the purpose of performing a legal act in the interest of the attorney or a third party and subject to any amendments made or limitations imposed by the court on serious grounds ( gewichtige redenen ). Each power of attorney ( volmacht ) or mandate ( lastgeving ), whether or not irrevocable, granted by a company, will terminate by force of law and without notice, upon bankruptcy of the company or the death of or termination by the attorney or the attorney being placed under guardianship or the attorney being disqualified as a director of the company, and will cease to have effect upon the company having been granted a suspension of payments or subjected to Measures. This qualification would also apply to the extent that the appointment of a process agent or other agent were to be deemed to constitute a power of attorney or a mandate.

 

6.4

If a facsimile signature is used for the Securities, each signatory should consent to such use of his signature and evidence of such consent may be required for the enforcement of the Securities in the Netherlands. If a Security is signed on behalf of the Company (manually or in facsimile) by a person who is a duly authorised representative of the Company on signing but no longer on the actual issue date of the Security, enforcement of the Security in the Netherlands may require that the holder thereof presents both the Security and evidence of the agreement of the Company to also be bound in such circumstances and evidence of the consent of the signatory.

 

6.5

A provision in an agreement requiring, forbidding or restricting a company to take any action that falls within the powers of its general meeting of shareholders, or similar corporate body, may not be enforceable.

 

6.6

We do not express any opinion as to any “deemed” action or absence thereof.

 

6.7

To the extent Dutch law applies, an indemnity will not be enforceable if the damage, loss, cost, liability or expense against which a person or legal entity is indemnified is a result of wilful misconduct or gross negligence of such person or entity or if such person or entity did not act in good faith.

 

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6.8

Dutch law does not know the concept of trust as this is known under common law, nor the concept of suspense account, and we do not express any opinion in respect thereof. Any provision pursuant to which moneys or goods are to be held in trust by one party for another party or are to be segregated from the other assets of the party concerned (or provisions having a similar intended effect) may not be enforceable in the Netherlands.

 

6.9

To the extent Dutch law applies, any provision to the effect that no holder of a Security or any Coupon (as defined therein) shall have any right to institute any action or proceeding, judicial or otherwise, with respect to the Securities or the Indenture, or for the appointment of a receiver or trustee, or for any remedy thereunder, may not be enforceable in all circumstances.

 

6.10

To the extent Dutch law applies, any provision to the effect that in any proceedings initiated by the Trustee, the Trustee shall be held to represent all holders of the Securities to which such proceedings relate, and that it shall not be necessary to make any holders of Securities party to such proceedings, may not be enforceable in all circumstances

 

6.11

The enforcement in the Netherlands of the Indenture, the Securities and foreign judgments will be subject to Dutch rules of civil procedure. A Dutch court may mitigate amounts due in respect of litigation and collection costs.

 

6.12

A Dutch court may decline jurisdiction if concurrent proceedings are being brought elsewhere. We express no opinion on competing judgments resulting from any concurrent proceedings.

 

6.13

Claims may become barred by limitation periods or may be or become subject to set-off or counterclaim.

 

6.14

The admissibility of a choice of jurisdiction (such as for courts in the United States) and the procedural consequences of such choice are determined by the laws of the chosen jurisdiction.

 

6.15

In proceedings before a court of the Netherlands the service of process against the Company other than by personal delivery by a bailiff of the courts of the Netherlands ( gerechtsdeurwaarder ) and in accordance with the applicable treaties will not be considered by the court to constitute valid service of process, notwithstanding any provision to the contrary in the Indenture or the Securities.

 

6.16

To the extent that Dutch law applies to the transfer of title to a Security, this requires delivery ( levering ) pursuant to a valid agreement ( geldige titel ) by a transferor who has power to pass on title to that Security ( beschikkingsbevoegdheid ).

 

6.17

To the extent that Dutch law is applicable to the Securities or any transfer thereof, any provision to the effect that the (registered) holder of a Security may be treated as the absolute owner thereof or solely entitled thereto may not be enforceable in all circumstances.

 

6.18

We do not express any opinion as to any co-ownership interest in, or transfer of, any Security.

 

6.19

To the extent that any provisions of the Securities or the Indenture are general conditions ( algemene voorwaarden ) within the meaning of Section 6:231 of the Dutch Civil Code, a holder of Securities may nullify ( vernietigen ) a provision therein if (i) the Company has not offered the holder of Securities a reasonable opportunity to examine the terms and conditions of the Security or the Indenture or (ii) the provision, having regard to all relevant circumstances, is unreasonably onerous ( onredelijk bezwarend ) to the holder of Securities.

 

6.20

To the extent Dutch law applies:

 

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  6.20.1

a Security will only be validly issued, and will only be valid, binding and enforceable against the Company, after that Security has been issued to and accepted and paid for by a person other than the Company;

 

  6.20.2

as to the acquisition of Securities by their issuer, Securities will be cancelled by operation of law.

 

6.21

We do not express any opinion as to the authority of any of the parties other than the Company to perform the provisions of the Indenture applicable to it.

 

6.22

It should be understood that we have not been responsible for investigating or verifying the accuracy of the facts or the reasonableness of any statements of belief or opinion contained in the Registration Statement (including the prospectus contained therein and the Prospectus Supplement), or that no material facts have been omitted from it.

 

6.23

The Trade Register Extract and the confirmations referred to in paragraph 3 do not provide conclusive evidence that the information set out in the Trade Register Extract is correct or that the Company has not become the subject of an Insolvency Proceeding or Measure.

 

6.24

We do not express any opinion as to facts.

 

7

This opinion is addressed to you solely for your benefit in connection with the filing of the Registration Statement. It is not to be transmitted to anyone else or for any other purpose or quoted or referred to in any public document or filed with anyone without our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us made in the Registration Statement. In giving this consent we do not admit that we are within the category of persons whose consent is required within Section 7 of the Securities Act or the rules and regulations of the United States Securities and Exchange Commission thereunder.

Yours faithfully

/s/ Linklaters LLP

Linklaters LLP

 

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Schedule

 

1

An electronic certified copy of an extract from the trade register (the “ Trade Register Extract ”) obtained from the chamber of commerce (the “ Chamber of Commerce ”) regarding the Company dated 7 August 2018.

 

2

A faxed copy of a notarial copy of the Company’s deed of incorporation dated 6 July 2016 including its articles of association, as obtained from and according to the Chamber of Commerce.

 

3

A print-out of an electronic copy of a written resolution of the management board of the Company dated 30 July 2018 and of a written resolution of Thermo Fisher Scientific Inc. in its stated capacity as the Company’s sole shareholder dated 31 July 2018, in each case confirming certain matters with respect to the Registration and the issuance by the Company of the Securities.

 

4

A print-out of an electronic copy of the Registration Statement (excluding any documents incorporated by reference in it and any exhibits to it).

 

5

A print-out of an electronic copy of the prospectus supplement dated 6 August 2018 (the “ Prospectus Supplement ”) in relation to the Securities (excluding the documents incorporated by reference therein or any exhibits thereto).

 

6

A print-out of an electronic copy of an executed base indenture relating to the Securities dated 9 August 2016 between the Company as issuer, Thermo Fisher Scientific Inc. as guarantor and The Bank of New York Mellon Trust Company, N.A., as trustee, and of an executed second supplemental indenture dated 8 August 2018 between the same parties, providing for the specific terms of the Securities (together, the “ Indenture ”).

References to “ documents ” are to any and all documents mentioned in this Schedule including the Securities, unless the context requires otherwise.

 

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