FORM 8-K
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
November 7, 2006
Date of Report (Date of earliest event reported)
Thermo Fisher Scientific Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation)
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1-8002
(Commission File Number)
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04-2209186
(IRS Employer Identification No.) |
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81 Wyman Street, P.O. Box 9046
Waltham, Massachusetts
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02454-9046 |
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(Zip Code) |
Registrant’s telephone number, including area code: (781) 622-1000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ 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))
Item 1.01 Entry into a Material Definitive Agreement
In connection with the closing on November 9, 2006 of Thermo Fisher Scientific Inc.’s
(formerly Thermo Electron Corporation) (the “Company” or “Thermo Fisher”) merger with Fisher
Scientific International Inc. (“Fisher”) (the “Fisher Merger”), pursuant to the Agreement and Plan
of Merger dated as of May 7, 2006 by and among Thermo Fisher, Trumpet Merger Corporation (“Merger
Sub”) and Fisher (the “Merger Agreement”), the Company entered into the following agreements:
Amendments to Executive Change in Control Retention Agreements
It
is Thermo Fisher’s practice, after the Fisher Merger, to enter into executive change in
control retention agreements with its executive officers and
certain other key employees that provide cash and equity-based severance benefits if there is a
change in control of Thermo Fisher and their employment is terminated by the Company without
“cause” or by the individual for “good reason,” as those terms are defined therein, within 18
months thereafter. For purposes of these agreements, a change in control exists upon (i) the
acquisition by any person of 40% or more of the outstanding common stock or voting securities of
Thermo Fisher; (ii) the failure of the Board to include a majority of directors who are “continuing
directors,” which term is defined to include directors who were members of the Board on the date of
the agreement or who subsequent to the date of the agreement were nominated or elected by a
majority of directors who were “continuing directors” at the time of such nomination or election;
(iii) the consummation of a merger, consolidation, reorganization, recapitalization or statutory
share exchange involving Thermo Fisher or the sale or other disposition of all or substantially all
of the assets of Thermo Fisher unless immediately after such transaction (a) all holders of common
stock immediately prior to such transaction own more than 60% of the outstanding voting securities
of the resulting or acquiring corporation in substantially the same proportions as their ownership
immediately prior to such transaction and (b) no person after the transaction owns 40% or more of
the outstanding voting securities of the resulting or acquiring corporation; or (iv) approval by
stockholders of a complete liquidation or dissolution of Thermo Fisher.
Prior
to the Fisher Merger, the executive change in control retention agreements with executive officers and certain key
employees, including each of Marijn Dekkers, Marc Casper, Guy Broadbent, Seth Hoogasian, and Peter
Wilver provided, among other things, that, upon a change in control, all options to purchase common
stock held by the individual as of the date of the change in control shall become fully vested and
immediately exercisable, and shares of common stock issued upon exercise of such stock options and
all shares of restricted common stock held by the individual as of the date of the change in
control will no longer be subject to the right of repurchase by the Company. Pursuant to these
agreements, all stock options and restricted grants for Messrs. Dekkers, Casper, Broadbent,
Hoogasian and Wilver accelerated on November 9, 2006 in connection with the closing of the Fisher
Merger; however, Mr. Dekkers waived acceleration of his stock options in connection with the
closing of the Fisher Merger.
The terms of the executive change in control retention agreement are more fully described in
the Company’s Proxy Statement dated April 11, 2006.
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On November 9, 2006, Thermo Fisher entered into an amendment to the executive change in
control retention agreements with its executive officers and certain key employees, including each
of Messrs. Casper, Broadbent, Hoogasian and Wilver, such that upon a change in control after
November 9, 2006, each outstanding option and restricted stock award granted on or after November
9, 2006 no longer accelerates automatically upon a change in control, but vests if the employee is
terminated by the Company without “cause” or by the individual with “good reason,” as those terms
are defined therein, in each case within 18 months of a change in control. Through an amendment to
his employment agreement, Mr. Dekkers agreed that his equity grants would no longer automatically
accelerate upon a change in control but would vest upon a termination of his
employment without cause or if he leaves for good reason, regardless
of whether a change in control existed or not. The Form of Amendment No. 1 to Executive Change in
Control Retention Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K. The
letter agreement amending Mr. Dekkers’ employment agreement is filed as Exhibit 10.2 to this
Current Report on Form 8-K.
New Executive Change in Control Retention Agreements
On
November 9, 2006 Thermo Fisher entered into executive change in
control retention agreements with certain
persons who became executives on or after November 9, 2006 (“New Executives”), that provide cash
and equity-based severance benefits if there is a change in control of Thermo Fisher and their
employment is terminated by the Company without “cause” or by the individual for “good reason,” as
those terms are defined therein, in each case within 18 months thereafter.
The terms of the Company’s form of executive change in control retention agreement with New
Executives are substantially similar to the existing form, which are more fully described in the
Company’s Proxy Statement dated April 11, 2006, but taking into account the November 9, 2006
amendment described above and filed herewith. With respect to equity, the form of executive change
in control retention agreement with New Executives provides (as does the amendment described above)
that each outstanding option and restricted stock award granted on or after November 9, 2006 vests
if the employee is terminated by the Company without “cause” or by the individual with “good
reason,” as those terms are defined therein, in each case within 18 months of a change in control.
The Form of Executive Change in Control Retention Agreement is filed as Exhibit 10.3 to this
Current Report on Form 8-K.
Noncompetition Agreements
Effective November 9, 2006, Thermo Fisher entered into noncompetition agreements with its executive
officers and certain key employees, other than Mr. Dekkers, whose employment agreement already
includes similar provisions.
The terms of the noncompetition agreement provide that during the term of the employee’s
employment with the Company, and for a period of twelve (12) months thereafter, the employee will
not engage, participate or invest in or be employed by a business which competes with the Company.
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The
agreement also contains provisions that restrict the employee’s
ability during the term of the employee’s employment with the
Company and for a period of twelve (12) months after
termination, to solicit or hire employees of the Company or to
solicit customers of the Company.
The
Form of Noncompetition Agreement for executive officers other than
Messrs. Casper and Broadbent is filed as Exhibit 10.4 to this Current Report on Form
8-K. The Noncompetition Agreements for Messrs. Casper and
Broadbent are filed as Exhibits 10.5 and 10.6 to this Current Report
on Form 10-K.
Amended
Severance Agreements for Certain Executive Officers
In
connection with the execution of the noncompetition agreements with
Messrs. Casper and Broadbent, effective November 9, 2006, the
Company entered into amended executive severance agreements with
Messrs. Casper and Broadbent. The amendments provide that if either
of the executives is terminated without cause or leaves the Company for good reason, he
will be entitled to severance pay equal to two times his base salary
and target bonus, as well as a pro rata bonus for the year in which
he is terminated. In
addition, the vesting of the stock options and time-based restricted stock
granted to Messrs. Casper and Broadbent on November 9, 2006, as
described below, would accelerate, and Messrs. Casper and Broadbent
would be entitled to benefits continuation for a period of
twenty-four months following the termination.
Amendment
No. 1 to Executive Severance Agreement with Mr. Casper,
dated as of November 9, 2006, is filed as
Exhibit 10.7 to this Current Report on Form 8-K. Amendment No. 1 to
Executive Severance Agreement with Mr. Broadbent,
dated as of November 9, 2006 is filed as Exhibit
10.8 to this Current Report on Form 8-K.
Amendments
to Equity Plans
On November 9, 2006, the Board of Directors (the “Board”) of the
Company approved certain changes to Thermo Fisher’s 2005 Stock
Incentive Plan and Fisher’s 2005 Equity and Incentive Plan. The amended Thermo Fisher plan
provides that each outstanding option and restricted stock award granted on or after November 9,
2006 vests if the employee is terminated by the Company without “cause” or by the individual with
“good reason,” as those terms are defined therein, in each case within 18 months of a change in
control. The amended Fisher plan conforms certain terms of the current Fisher plan to the amended
Thermo Fisher plan. The Thermo Fisher Scientific Inc. 2005 Stock Incentive Plan, as amended and
restated on November 9, 2006, and the Fisher Scientific International Inc. 2005 Equity and
Incentive Plan, as amended for awards granted on or after November 9, 2006, are filed as Exhibits 10.9 and 10.10, respectively, to this Current Report on Form 8-K. The form of Stock Option
Agreement for options granted under the Fisher Scientific International Inc. 2005 Equity and
Incentive Plan, as amended for awards granted on or after November 9, 2006, is filed as Exhibit 10.11 to this
Current Report on Form 8-K.
Item 2.01 Completion of Acquisition or Disposition of Assets
On November 9, 2006, Thermo Fisher issued a press release announcing the consummation of the
transactions contemplated by the Agreement and Plan of Merger dated as of May 7, 2006, by and
between Thermo Electron Corporation, Merger Sub and Fisher. Pursuant to the Merger Agreement, at
the effective time of the Fisher Merger, Merger Sub merged with and into Fisher and each share of
common stock of Fisher issued and outstanding immediately prior to the effective time of the Fisher
Merger, subject to certain exceptions, was converted into the right to receive two shares of Thermo
Fisher common stock. In addition, each
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option to acquire shares of Fisher common stock granted pursuant to option plans and other stock
based awards that was outstanding and unexercised immediately prior to the effective time was
converted into an option to acquire shares of Thermo Fisher common stock, as adjusted to reflect
the exchange ratio.
The foregoing description is qualified in its entirety by the text of the press release, which
is filed as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant
Upon the closing of the Fisher Merger (the “Closing”), the Company became a co-obligor on the
following notes of Fisher:
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$300,000,000 6 3/4% Senior Subordinated Notes due 2014 |
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$497,500,000 6 1/8% Senior Subordinated Notes due 2015 |
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$300,000,000 2.50% Convertible Senior Notes due 2023 |
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$330,000,000 3.25% Convertible Senior Subordinated Notes due 2024 |
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$344,600,000 Floating Rate Convertible Senior Debentures due 2033 |
such that Thermo Fisher agreed to assume, jointly and severally with Fisher, the obligation to
pay the principal of and any premium and interest on the notes on the dates and in the manner
provided for in the relevant notes and the relevant indenture. Interest on the notes is payable
semi-annually, except in respect of the Floating Rate Convertible Senior Debentures due 2033, in
respect of which interest is payable quarterly. Under certain circumstances, holders of the notes
can accelerate the payment obligations upon the occurrence of an event of default, as defined in
the applicable indenture.
Also upon Closing, the Company entered into supplemental indentures in respect of Fisher’s
2.50% Convertible Senior Notes due 2023, 3.25% Convertible Senior Subordinated Notes due 2024, and
Floating Rate Convertible Senior Debentures due 2033, each of which was required by the applicable
indenture and provided that such notes or debentures, as applicable, if and when convertible, shall
be convertible into the kind and amount of shares of stock which a holder of such security would
have been entitled to receive upon the merger had the notes or debentures, as applicable, been
converted into the common stock of Fisher immediately prior to the merger.
Pursuant to a consent solicitation by Fisher concluded September 20, 2006, at Closing, Thermo
Fisher and Fisher executed supplemental indentures in connection with Fisher’s 6 3/4% Senior
Subordinated Notes due 2014 and 6
1/8% Senior Subordinated Notes due 2015 that (i) modified the
covenant that required Fisher to provide certain information to the applicable trustee and holders
such that the filing of periodic reports with the Securities and Exchange Commission by Thermo
Fisher will satisfy the information requirement; and (ii) modified the provision addressing the
effect of credit ratings on certain covenants such that the rating
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necessary for termination or suspension of such covenants will be the rating of the relevant series
of notes.
The Supplemental Indentures are filed as Exhibits 4.1, 4.2, 4.3, 4.4 and 4.5 to this Current
Report on Form 8-K.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of
Principal Officers; Compensatory Arrangements of Certain Officers
Departure of Directors
In connection with the closing of the Fisher Merger, on November 9, 2006, Robert McCabe and
John LaMattina resigned from the Board.
Election of Directors
In
connection with the closing of the Fisher Merger, on November 9, 2006, Paul Meister, Bruce
Koepfgen and Scott Sperling were elected to the Board of Directors of Thermo Fisher. Mr. Meister
was appointed to the Strategy Review Committee and the Executive Committee of the Board, Mr.
Koepfgen was appointed to the Audit Committee of the Board and Mr. Sperling was appointed to the
Compensation Committee and the Nominating and Corporate Governance Committee of the Board. The
Company agreed in the Merger Agreement to amend its bylaws to provide that Mr. Meister would serve
as Chairman of the Board of Directors of the Company. A copy of the amendment to Thermo Fisher’s
Bylaws is filed as Exhibit 3.2 to this Current Report on Form 8-K.
Compensatory Arrangements of Certain Officers
On November 9, 2006, the Compensation Committee of Thermo Fisher took the following actions
relating to executive compensation:
Base Salary — Approval of Increases. Effective November 10, 2006, the
Compensation Committee of the Board of Directors (the “Compensation
Committee”) increased the annual base salary of the Company’s executive officers. The
annual base salary approved by the Compensation Committee for the Company’s “named executive
officers” (as defined by Item 402(a)(3) of Regulation S-K) is set forth in the table
below.
Revised Target Bonus for 2006. The Company’s executive officers have annual target
cash bonus amounts, expressed as a percentage of their annual base salaries. The percentages for
certain executive officers were adjusted by the Compensation Committee on November 9, 2006. The
revised target bonus percentages approved by the Compensation Committee for the Company’s named
executive officers are set forth in the table below.
Stock Options — Approval of Grants for November 9, 2006. The Compensation Committee
granted stock options to the Company’s executive officers under the Company’s 2005 Stock Incentive
Plan, as amended and restated on November 9, 2006. The stock option grants for the executive
officers, other than Messrs. Dekkers, Casper and Broadbent
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are evidenced
by the Company’s standard form of Stock Option Agreement to its directors
and officers, a copy of which is filed with this Current Report on
Form 8-K as Exhibit 10.12. The
stock option grant to the chief executive officer, Marijn Dekkers, is evidenced by the Company’s
standard form of Stock Option Agreement for Mr. Dekkers, and the letter agreement dated as of
November 9, 2006 between the Company and Mr. Dekkers (described in more detail below), copies of
which are filed with this Current Report on Form 8-K as Exhibits 10.13 and 10.2, respectively. The
stock option grant to the executive vice president, Marc Casper, is evidenced by the Stock Option Agreement for Mr. Casper, a copy of which is filed with this Current
Report on Form 8-K as Exhibit 10.14. The stock option grant to
the senior vice president, Guy Broadbent, is evidenced by the
Stock Option Agreement for Mr. Broadbent, a copy of which is filed with this Current
Report on Form 8-K as Exhibit 10.15. The options for
executive officers generally all (a) vest in equal
annual installments over the five-year period commencing on the date of grant (i.e., the first 1/5
of a stock option grant would vest on the first anniversary of the date of grant) so long as the
executive officer is employed by the Company on each such date, (b) have an exercise price equal to
the closing price of the Company’s common stock on the New York Stock Exchange on the date of
grant, and (c) have a term of 7 years from such date. The stock option grants approved by the
Compensation Committee for the Company’s named executive officers are set forth in the table below.
Restricted Stock – Approval of Grants for November 9, 2006.
The Compensation Committee granted time-based restricted stock to the Company’s executive
officers under the Company’s 2005 Stock Incentive Plan, as amended and restated on November 9,
2006. The time-based restricted stock grants for the executive
officers, other than Messrs. Dekkers, Casper and Broadbent, are evidenced by the Company’s standard form of
Restricted Stock Agreement, a copy of which is filed with this Current Report on Form 8-K as
Exhibit 10.16. The time-based restricted stock grant to the chief executive officer is evidenced
by the Company’s standard form of Restricted Stock Agreement for Mr. Dekkers, a copy of which is
filed with this Current Report on Form 8-K as Exhibit 10.17. The time-based restricted stock grant
to the executive vice president is evidenced by the Restricted Stock
Agreement for Mr. Casper, a copy of which is filed with this Current Report on Form 8-K as Exhibit
10.18. The
time-based restricted stock grant to the senior vice president is
evidenced by the Restricted Stock
Agreement for Mr. Broadbent, a copy of which is filed with this
Current Report on Form 8-K as Exhibit 10.19. The time-based
restricted stock grants for executive officers generally all vest in equal annual
installments over the three-year period commencing on the date of grant (i.e., the first 1/3 of a
restricted stock grant would vest on the first anniversary of the date of grant) so long as the
executive officer is employed by the Company on each such date.
The Compensation Committee also granted performance-based restricted stock to the Company’s
executive officers under the Company’s 2005 Stock Incentive Plan, as amended and restated on
November 9, 2006. The performance-based restricted stock grants for the executive officers are
evidenced by the Company’s standard form of Performance Restricted Stock Agreement, a copy of which
is filed with this Current Report on Form 8-K as Exhibit 10.20. In connection with awards of
performance-based restricted stock, the Compensation Committee adopted as performance goals the
measures (i) organic revenue, (ii) adjusted earnings per share and (iii) stock price. The vesting
of the performance-based restricted stock awards is as follows:
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Twenty-five percent (25%) of the restricted shares shall vest on the day the
Compensation Committee certifies that (i) the performance goals related to the |
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Company’s organic revenues for the period 2007 and 2008 have been achieved, and (ii) the
performance goals related to the Company’s stock price during the period January 1, 2009
through November 9, 2010 have been achieved, (such date of certification being referred to
as the “First Revenue Vesting Date”), and another twenty-five percent (25%) of the
restricted shares shall vest on the first anniversary of the First Revenue Vesting Date; and |
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Twenty-five percent (25%) of the restricted shares shall vest on the day the
Compensation Committee certifies that (i) the performance goals related to the Company’s
adjusted earnings per share for the period 2007 and 2008 have been achieved and (ii) the
performance goals related to the Company’s stock price during the period January 1, 2009
through November 9, 2010 have been achieved (such date of certification being referred to
as the “First EPS Vesting Date”), and another twenty-five
percent (25%) of the restricted shares shall vest on the first anniversary of the First EPS Vesting Date. |
Restricted shares may vest under one or both of the above clauses; each clause operates
independently of the other. The restricted stock grants approved by the Compensation Committee for
the Company’s named executive officers are set forth in the table below.
CEO Employment Agreement -Amendment. The Compensation Committee approved, and the
Company and Mr. Dekkers entered into, a letter agreement dated as of November 9, 2006 that provided
that (a) all references in Mr. Dekkers’ Amended & Restated Employment Agreement to the “Reference
Bonus Amount” shall mean 110% of his then current salary and (b) the stock option to purchase
549,900 shares of the Company’s common stock, exercisable for a period of 7 years from the date of
grant, being granted to Mr. Dekkers on November 9, 2006, shall be in lieu of the stock option to
purchase 260,000 shares of the Company’s common stock, to which he is entitled pursuant to Section
6(c) of his Amended & Restated Employment Agreement. The letter agreement also modifies certain
provisions of Mr. Dekkers’ stock option and restricted stock awards granted on or after November,
9, 2006. The letter agreement with Mr. Dekkers is filed as Exhibit 10.2 to this Current Report on
Form 8-K.
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Securities |
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Securities |
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Securities |
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November 9, |
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November 9, |
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Bonus for |
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Restricted |
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9, 2006 |
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Stock Grant |
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Stock Grant |
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10, 2006) |
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of salary) |
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Grant |
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based) |
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Marijn E. Dekkers
President and Chief
Executive Officer |
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1,050,000 |
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% |
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549,900 |
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47,200 |
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Marc N. Casper
Executive Vice
President |
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620,000 |
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% |
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251,900 |
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21,600 |
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21,600 |
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Guy Broadbent
Senior Vice
President |
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480,000 |
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% |
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151,400 |
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13,000 |
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13,000 |
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Seth H. Hoogasian
Senior Vice
President, General
Counsel and
Secretary |
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435,000 |
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% |
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116,800 |
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10,100 |
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10,100 |
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Peter M. Wilver
Senior Vice
President, Chief
Financial Officer |
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535,000 |
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150,400 |
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12,900 |
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12,900 |
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Director Compensation Matters
On November 7, 2006, the Board approved the following annual compensation for non-management
directors, effective upon the closing of the Fisher Merger:
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Board Members (Other than the Chairman) |
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Annual Cash Compensation |
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Annual Cash Retainer: |
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70,000 |
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Additional Cash Retainer for Presiding Director: |
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3,000 |
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Additional Cash Retainer for Chairman of Compensation
Committee: |
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10,000 |
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Additional Cash Retainer for Chairman of Audit Committee: |
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20,000 |
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Additional Cash Retainer for Chairs of Nominating
and Corporate Governance Committee; and Strategy Committee: |
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5,000 |
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| B. |
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Meeting Fees |
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If a Board Committee meets more than six times during a calendar year, then the members
thereof shall receive the following fees for attending meetings that exceed six in number: |
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Committee Meeting Fees:
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$1,500 per meeting attended in person, on a day
other than a day on which the Board meets |
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$1,000 per meeting attended in person, on the same
day as a Board meeting |
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Telephone Committee
Meeting Fees:
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$750 per meeting attended by conference telephone |
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Directors are also reimbursed for reasonable out-of-pocket expenses incurred in attending
meetings. |
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Stock Options |
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Annual grant of options for 10,500 shares, vesting 1/3 on each of the first three
anniversaries of the grant date, expiring seven years from the grant date, except in May
2007. |
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Chairman of the Board |
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Annual Cash Compensation |
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Annual Cash Compensation (in lieu of annual retainer and meeting fees): $250,000 |
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Stock Options |
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Annual grant of options for 10,500 shares, vesting 1/3 on each of the first three
anniversaries of the grant date, expiring seven years from the grant date, except in May
2007. |
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| Fisher Merger Option Grant to
Non-Management Directors |
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In connection with the closing of the Fisher Merger, the Board also approved a grant to |
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directors effective upon the closing of the Fisher Merger. Each non-management director received
options for 15,600 shares, vesting 1/3 each on the first three anniversaries of the grant date,
expiring seven years from the grant date. The grants are evidenced by the Company’s standard form
of Stock Option Agreement to its directors and officers, a copy of which is filed with this Current
Report on Form 8-K as Exhibit 10.12. In connection with this one-time grant, the Board approved an
amendment to the Company’s Directors Stock Option Plan providing that directors will not receive
the normal annual grant in May 2007. The Thermo Fisher Scientific Inc. Directors Stock Option
Plan, as amended and restated on November 9, 2006 is filed with this Current Report on Form 8-K as
Exhibit 10.21.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Effective November 9, 2006, the Company’s Third Amended and Restated Certificate of
Incorporation was amended to increase the number of authorized shares of the Company’s common stock
and to change the name of the Company to “Thermo Fisher Scientific Inc.” A copy of the amendment
to the Company’s Third Amended and Restated Certificate of Incorporation is filed as Exhibit 3.1 to
this Form 8-K.
Also effective November 9, 2006, Thermo Fisher’s Bylaws were amended to add provisions
governing the Chief Executive Officer and Chairman positions and board of director composition.
The bylaw amendment provides that as of the effective date of the Fisher Merger, Mr. Dekkers shall
continue to serve as President and Chief Executive Officer of the Company and Mr. Meister shall
become Chairman of the board of directors of the Company. The amendment further provides that on
the effective date of the Fisher Merger, and continuing for a period of three years following the
effective date, the composition of the combined company’s board of directors will be maintained at
a ratio of five continuing Thermo Electron directors to three continuing Fisher directors. Any
vacancies on the board of directors created by the cessation of service of a director will be
filled by a nominee proposed to the Nominating and Corporate Governance Committee of the Board by a
majority of the remaining continuing Thermo Electron directors in the case of a vacancy from among
the continuing Thermo Electron directors, and by a majority of the remaining continuing Fisher
directors in the case of a vacancy from among the continuing Fisher directors. Until the third
anniversary of the effective time, the affirmative vote of at least 75% of the full board of
directors will be required for any amendment of or change to the bylaw provisions relating to board
composition described above. A copy of the amendment to Thermo Fisher’s Bylaws is filed as Exhibit
3.2 to this Form 8-K.
Item 5.05 Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of
Ethics
Effective November 9, 2006, the Board of Directors of the Company approved the Thermo Fisher
Scientific Inc. Code of Business Conduct and Ethics, which was intended to reconcile differences
between the pre-merger Thermo Electron Corporation code and the Fisher Scientific International
Inc. code. The changes from Thermo Fisher’s pre-merger code of business conduct and ethics relate
primarily to the reconciliation of the two companies’ policies with respect to gifts to and from
employees and restrictions on alcohol use at company functions.
11
Item 9.01 Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired.
The Report of Independent Registered Public Accounting Firm is hereby incorporated by
reference to Exhibit 99.2 hereto.
The audited consolidated balance sheets of Fisher as of December 31, 2005 and December 31,
2004 and the consolidated statements of operations, consolidated statements of changes in
stockholders’ equity and other comprehensive income and consolidated statements of cash flows of
Fisher for each of the three years in the period ended December 31, 2005, and the notes related
thereto, are hereby incorporated by reference to Exhibit 99.3 hereto.
The unaudited consolidated balance sheet of Fisher as of September 30, 2006 and the
consolidated statement of operations, consolidated statement of changes in stockholders’ equity and
consolidated statement of cash flows for the period ended September 30, 2006, and the notes related
thereto, are hereby incorporated by reference to Exhibit 99.4 hereto.
(b) Pro Forma Financial Information.
The following pro forma financial information is being filed with this report as Exhibit 99.5
and is incorporated herein by reference:
1) Unaudited pro forma condensed combined balance sheet as of September 30, 2006;
2) Unaudited pro forma condensed combined statements of income for the nine months ended
September 30, 2006 and the year ended December 31, 2005; and
3) Notes to unaudited pro forma condensed combined financial statements.
(d) Exhibits
The following exhibits are filed herewith:
| |
|
|
| Exhibit |
|
|
| No. |
|
Description of Exhibit |
| |
3.1
|
|
Amendment to Thermo Fisher Scientific Inc.’s Third Amended and Restated
Certificate of Incorporation |
|
|
|
3.2
|
|
Amendment to Thermo Fisher Scientific Inc.’s Bylaws |
|
|
|
4.1
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fisher’s 6 3/4% Senior
Subordinated Notes due 2014 |
|
|
|
4.2
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo |
12
| |
|
|
| Exhibit |
|
|
| No. |
|
Description of Exhibit |
| |
|
|
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fisher’s 6 1/8% Senior
Subordinated Notes due 2015 |
|
|
|
4.3
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York, as successor trustee for J.P. Morgan Trust Company, National
Association, relating to Fisher’s 2.50% Convertible Senior Notes due 2023 |
|
|
|
4.4
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York, as successor trustee for J.P. Morgan Trust Company, National
Association, relating to Fisher’s 3.25% Convertible Senior Subordinated Notes
due 2024 |
|
|
|
4.5
|
|
First Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fisher’s Floating Rate
Convertible Senior Debentures due 2033 |
|
|
|
10.1
|
|
Form of Amendment to Executive Change in Control Retention Agreement dated
November 9, 2006 between the Registrant and certain key employees and
executive officers who signed original agreements prior to November 9, 2006 |
|
|
|
10.2
|
|
Letter Agreement dated November 9, 2006, between the Registrant and Mr. Dekkers |
|
|
|
10.3
|
|
Form of Executive Change in Control Retention Agreement dated November 9, 2006
between the Registrant and certain persons who became executives on or after
November 9, 2006 |
|
|
|
10.4
|
|
Form of Noncompetition Agreement between the Registrant and certain key
employees and executive officers |
|
|
|
10.5
|
|
Noncompetition Agreement between
the Registrant and Mr. Casper, dated as of November 9, 2006 |
|
|
|
10.6
|
|
Noncompetition Agreement between
the Registrant and Mr. Broadbent, dated as of November 9, 2006 |
|
|
|
10.7
|
|
Amendment No. 1 to Executive
Severance Agreement with Mr. Casper,
dated as of November 9, 2006 |
|
|
|
10.8
|
|
Amendment No. 1 to Executive
Severance Agreement with Mr. Broadbent,
dated as of November 9, 2006 |
|
|
|
10.9
|
|
Thermo Fisher Scientific Inc. 2005 Stock Incentive Plan, as amended and
restated on November 9, 2006 |
|
|
|
10.10
|
|
Fisher Scientific International Inc. 2005 Equity and Incentive Plan, as
amended for awards granted on or after November 9, 2006 |
|
|
|
10.11
|
|
Form of Stock Option Agreement for use in connection with the grant of stock
options under the Fisher Scientific International Inc. 2005 Equity and
Incentive Plan, as amended for awards granted on or after November 9, 2006 |
|
|
|
10.12
|
|
Form of Thermo Fisher Scientific Stock Option Agreement for use in connection
with the grant of stock options under the Registrant’s equity plans, as
amended and restated on November 9, 2006 to officers and directors of the
Registrant |
|
|
|
10.13
|
|
Form of Thermo Fisher Scientific
Inc. Stock Option Agreement for use in connection
with the grant of stock options under the Registrant’s 2005 Stock Incentive
Plan, as amended and restated on November 9, 2006 to Mr. Dekkers |
|
|
|
10.14
|
|
Stock Option Agreement dated
November 9, 2006 with Mr. Casper |
|
|
|
10.15
|
|
Stock Option Agreement dated
November 9, 2006 with Mr. Broadbent |
|
|
|
10.16
|
|
Form of Thermo Fisher Scientific
Inc. Restricted Stock Agreement for use in connection with the grant
of restricted stock under the Registrant’s 2005 Stock Incentive
Plan, as amended and restated on November 9, 2006 to officers
of the Registrant |
|
|
|
10.17
|
|
Form of Thermo Fisher Scientific Inc. Restricted Stock Agreement for use in
connection with the grant of restricted stock under the Registrant’s 2005
Stock |
13
| |
|
|
| Exhibit |
|
|
| No. |
|
Description of Exhibit |
| |
|
|
Incentive Plan, as amended and restated on November 9, 2006 to Mr.
Dekkers |
|
|
|
10.18
|
|
Restricted Stock Agreement dated
November 9, 2006 with Mr.
Casper |
|
|
|
10.19
|
|
Restricted Stock Agreement dated
November 9, 2006 with Mr. Broadbent |
|
|
|
10.20
|
|
Form of Thermo Fisher Scientific Inc. Performance Restricted Stock Agreement
for use in connection with the grant of performance restricted stock under the
Registrant’s 2005 Stock Incentive Plan, as amended and restated on November 9,
2006 |
|
|
|
10.21
|
|
Thermo Fisher Scientific Directors Stock Option Plan, as amended and restated
on November 9, 2006 |
|
|
|
10.22
|
|
Summary of Thermo Fisher Scientific Inc. Annual Director Compensation |
|
|
|
23.1
|
|
Consent of Deloitte & Touche LLP, independent registered public accounting firm |
|
|
|
99.1
|
|
Press Release dated November 9, 2006 |
|
|
|
99.2
|
|
Report of Independent Registered Public Accounting Firm (incorporated by
reference to Fisher Scientific International Inc.’s Current Report on Form 8-K
filed May 11, 2006) |
|
|
|
99.3
|
|
The audited consolidated balance sheets of Fisher Scientific International
Inc. as of December 31, 2005 and December 31, 2004 and the consolidated
statements of operations, consolidated statements of changes in stockholders’
equity and other comprehensive income and consolidated statements of cash
flows of Fisher for each of the three years in the period ended December 31,
2005, and the notes related thereto (incorporated by reference to Fisher
Scientific International Inc.’s Current Report on Form 8-K filed May 11, 2006) |
|
|
|
99.4
|
|
The unaudited consolidated balance sheet of Fisher Scientific International
Inc. as of September 30, 2006 and the consolidated statement of operations,
consolidated statement of changes in stockholders’ equity and consolidated
statement of cash flows for the period ended September 30, 2006, and the notes
related thereto (incorporated by reference to Fisher Scientific International
Inc.’s Quarterly Report on Form 10-Q for the Quarter Ended September 30, 2006) |
|
|
|
99.5
|
|
Pro Forma financial information listed in Item 9.01(b) |
14
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused
this report to be signed on its behalf by the undersigned thereunto duly authorized, on this
14th day of November, 2006.
| |
|
|
|
|
|
|
| |
|
THERMO FISHER SCIENTIFIC INC. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Seth H. Hoogasian |
| |
|
|
|
|
|
|
|
|
Name:
|
|
Seth H. Hoogasian |
|
|
|
|
Title:
|
|
Senior Vice President, General Counsel and
Secretary |
15
EXHIBIT INDEX
| |
|
|
| Exhibit |
|
|
| No. |
|
Description of Exhibit |
| |
3.1
|
|
Amendment to Thermo Fisher Scientific Inc.’s Third Amended and Restated
Certificate of Incorporation |
|
|
|
3.2
|
|
Amendment to Thermo Fisher Scientific Inc.’s Bylaws
|
|
|
|
4.1
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fisher’s 6 3/4% Senior
Subordinated Notes due 2014 |
|
|
|
4.2
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fisher’s 6 1/8% Senior
Subordinated Notes due 2015 |
|
|
|
4.3
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York, as successor trustee for J.P. Morgan Trust Company, National
Association, relating to Fisher’s 2.50% Convertible Senior Notes due 2023 |
|
|
|
4.4
|
|
Second Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York, as successor trustee for J.P. Morgan Trust Company, National
Association, relating to Fisher’s 3.25% Convertible Senior Subordinated Notes
due 2024 |
|
|
|
4.5
|
|
First Supplemental Indenture, dated as of November 9, 2006, between Thermo
Fisher Scientific Inc., Fisher Scientific International Inc. and the Bank of
New York Trust Company, N.A. as Trustee, relating to Fisher’s Floating Rate
Convertible Senior Debentures due 2033
|
|
|
|
10.1
|
|
Form of Amendment to Executive
Change in Control Retention Agreement dated November 9, 2006 between the Registrant and certain key employees and
executive officers who signed original agreements prior to November 9, 2006 |
|
|
|
10.2
|
|
Letter Agreement dated November 9, 2006, between the Registrant and Mr. Dekkers |
|
|
|
10.3
|
|
Form of Executive Change in Control Retention Agreement dated November 9, 2006
between the Registrant and certain persons who became executives on or after
November 9, 2006 |
|
|
|
10.4
|
|
Form of Noncompetition Agreement between the Registrant and certain key
employees and executive officers |
|
|
|
10.5
|
|
Noncompetition Agreement between
the Registrant and Mr. Casper, dated as of November 9, 2006 |
|
|
|
10.6
|
|
Noncompetition Agreement between
the Registrant and Mr. Broadbent, dated as of November 9, 2006 |
|
|
|
10.7
|
|
Amendment No. 1 to Executive
Severance Agreement with Mr. Casper,
dated as of November 9, 2006 |
|
|
|
10.8
|
|
Amendment No. 1 to Executive
Severance Agreement with Mr. Broadbent,
dated as of November 9, 2006 |
|
|
|
10.9
|
|
Thermo Fisher Scientific Inc. 2005 Stock Incentive Plan, as amended and
restated on November 9, 2006 |
|
|
|
10.10
|
|
Fisher Scientific International Inc. 2005 Equity and Incentive Plan, as
amended for awards granted on or after November 9, 2006 |
|
|
|
10.11
|
|
Form of Stock Option Agreement for use in connection with the grant of stock
options under the Fisher Scientific International Inc. 2005 Equity and
Incentive Plan, as amended for awards granted on or after November 9, 2006 |
|
|
|
10.12
|
|
Form of Thermo Fisher Scientific Stock Option Agreement for use in connection
with the grant of stock options under the Registrant’s equity plans, as
amended and restated on November 9, 2006 to officers and directors of the
Registrant |
16
| |
|
|
| Exhibit |
|
|
| No. |
|
Description of Exhibit |
| |
10.13
|
|
Form of Thermo Fisher Scientific
Inc. Stock Option Agreement for use in connection
with the grant of stock options under the Registrant’s 2005 Stock Incentive
Plan, as amended and restated on November 9, 2006 to Mr. Dekkers |
|
|
|
10.14
|
|
Stock Option Agreement dated
November 9, 2006 with Mr. Casper |
|
|
|
10.15
|
|
Stock Option Agreement dated
November 9, 2006 with Mr. Broadbent |
|
|
|
10.16
|
|
Form of Thermo Fisher Scientific Inc. Restricted Stock Agreement for use in
connection with the grant of restricted stock under the Registrant’s 2005
Stock Incentive Plan, as amended and restated on November 9, 2006 to officers
of the Registrant |
|
|
|
10.17
|
|
Form of Thermo Fisher Scientific Inc. Restricted Stock Agreement for use in
connection with the grant of restricted stock under the Registrant’s 2005
Stock Incentive Plan, as amended and restated on November 9, 2006 to Mr.
Dekkers |
|
|
|
10.18
|
|
Restricted Stock Agreement dated
November 9, 2006 with Mr.
Casper |
|
|
|
10.19
|
|
Restricted Stock Agreement dated
November 9, 2006 with Mr. Broadbent |
|
|
|
10.20
|
|
Form of Thermo Fisher Scientific Inc. Performance Restricted Stock Agreement
for use in connection with the grant of performance restricted stock under the
Registrant’s 2005 Stock Incentive Plan, as amended and restated on November 9,
2006 |
|
|
|
10.21
|
|
Thermo Fisher Scientific Directors Stock Option Plan, as amended and restated
on November 9, 2006 |
|
|
|
10.22
|
|
Summary of Thermo Fisher Scientific Inc. Annual Director Compensation |
|
|
|
23.1
|
|
Consent of Deloitte & Touche LLP, independent registered public accounting firm |
|
|
|
99.1
|
|
Press Release dated November 9, 2006 |
|
|
|
99.2
|
|
Report of Independent Registered Public Accounting Firm (incorporated by
reference to Fisher Scientific International Inc.’s Current Report on Form 8-K
filed May 11, 2006) |
|
|
|
99.3
|
|
The audited consolidated balance sheets of Fisher Scientific International
Inc. as of December 31, 2005 and December 31, 2004 and the consolidated
statements of operations, consolidated statements of changes in stockholders’
equity and other comprehensive income and consolidated statements of cash
flows of Fisher for each of the three years in the period ended December 31,
2005, and the notes related thereto (incorporated by reference to Fisher
Scientific International Inc.’s Current Report on Form 8-K filed May 11, 2006) |
|
|
|
99.4
|
|
The unaudited consolidated balance sheet of Fisher Scientific International
Inc. as of September 30, 2006 and the consolidated statement of operations,
consolidated statement of changes in stockholders’ equity and consolidated
statement of cash flows for the period ended September 30, 2006, and the notes
related thereto (incorporated by reference to Fisher Scientific International
Inc.’s Quarterly Report on Form 10-Q for the Quarter Ended September 30, 2006) |
|
|
|
99.5
|
|
Pro Forma financial information listed in Item 9.01(b) |
17