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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):
May 14, 2008
THERMO FISHER SCIENTIFIC INC.
(Exact name of Registrant as specified in its Charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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1-8002
(Commission File Number)
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04-2209186
(I.R.S. Employer Identification
Number) |
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81 Wyman Street
Waltham, Massachusetts
(Address of principal executive offices)
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02451
(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 (see General Instruction
A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
TABLE OF CONTENTS
Item 1.01 Entry into a Material Definitive Agreement
On May 15, 2008, the Board of Directors of Thermo Fisher Scientific Inc. (the “Company”)
approved the following agreements.
Executive
Change in Control Retention Agreements
In connection with the expiration of its existing change in control retention agreements with
executives, on May 15, 2008 the Board of Directors authorized the Company’s entering into new
executive change in control retention agreements with executives that provide cash and other
severance benefits if there is a change in control of the Company 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. Marc Casper, Alan Malus, Seth
Hoogasian and Peter Wilver will be party to these agreements. Marijn Dekkers’ existing employment
agreement already provides for certain cash and severance benefits to be paid to Mr. Dekkers in the
event that his employment is terminated by the Company without “cause” or by him for “good reason,”
as those terms are defined therein.
For purposes of these executive change in control retention agreements, a change in control
exists upon (i) the acquisition by any person of 50% or more of
the outstanding common stock or
voting securities of the Company; (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 the Company or the sale or other disposition of all or
substantially all of the assets of the Company unless immediately after such transaction: (a) all
holders of common stock immediately prior to such transaction own more than 50% 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 50% 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 the Company.
The executive change in control retention agreements with executive officers provide that,
upon a qualifying termination, the executive would be entitled to (A) a lump sum payment equal to
(1) two multiplied by (2) the sum of (x) the higher of the executive’s annual base salary as in
effect immediately prior to the “measurement date” or the “termination date” and (y) the higher of
the executive’s target bonus as in effect immediately prior to the measurement date or the
termination date, and (B) a pro rata bonus for the year of termination, based on the executive’s
target bonus as in effect immediately prior to the measurement date or the termination date. In
addition, the executive would be provided continuing medical, dental and life insurance benefits
for a period of two years, after such termination. Finally, the Company would provide outplacement
services through an outside firm to the executive up to an aggregate of $20,000.
In the event that total payments under these agreements exceed 110% of the maximum amount of
total payments the executive could receive without being treated as receiving any so-called “excess
parachute payments” under the applicable provisions of the Internal Revenue Code, then the
executive would be entitled to receive a gross-up payment equal to the amount of any excise tax
payable by such executive with respect to such payment plus the amount of all other additional
taxes imposed on such executive attributable to the receipt of the gross-up payment. In the event
that the total payments under these agreements are between 100% and 110% of the maximum amount of
total payments the executive could receive without being treated as receiving any excess parachute
payments, the executive’s payments will be “cutback” so that the total payments he receives will
not cause him to be treated as receiving any excess parachute payments. The Form of Executive
Change in Control Retention Agreement for Officers is filed as Exhibit 10.1 to this Current Report
on Form 8-K.
Executive Severance Policy
On May 15, 2008, the Company elected to terminate, effective December 31, 2008, its existing
severance agreements with certain executives and replace them with an executive severance policy
that provides severance benefits in the event their employment is terminated by the Company without
“cause” (as such term is defined therein). Messrs. Malus, Wilver and Hoogasian are eligible to
receive benefits under the executive severance policy. Mr. Dekkers’ existing employment agreement
already provides for certain severance benefits to be paid to him in the event of his termination.
Mr. Casper is party to an executive severance agreement with the Company that expires in 2011, and
will not be eligible to participate in the executive severance policy until the expiration of his
current severance agreement.
The executive severance policy provides that, in the event an executive officer’s employment
is terminated by the Company without cause, he would be entitled to a lump sum severance payment
equal to the sum of (A) 1.5 times his annual base salary then in effect, and (B) 1.5 times his
target bonus for the year in which the date of termination occurs, except that if the executive
receives benefits under the executive change in control retention agreement described above, he
would not be entitled to receive benefits under the executive severance agreement. In addition,
for 18 months after the date of termination, the executive would be provided medical, dental and
life insurance benefits at least equal to those he would have received had his employment not been
terminated, or if more favorable, to those in effect generally during such period with respect to
peer executives of the Company. Finally, the executive would be entitled to up to $20,000 of
outplacement services until the earlier of 12 months following his termination or the date he
secures full-time employment. The Company’s Executive Severance Policy is filed as Exhibit 10.2 to
this Current Report on Form 8-K.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On May 15, 2008, the Board of Directors of the Company appointed Marc Casper Chief Operating
Officer. Mr. Casper, 40, was appointed Executive Vice President in November 2006. He was Senior
Vice President from December 2003 to November 2006 and President, Life and Laboratory Sciences from
December 2001 to March 2005. He was Vice President of the Company from December 2001 to December
2003.
In connection with Mr. Casper’s appointment to COO, the Compensation Committee of the Board of
Directors (the “Compensation Committee”) of the Company took the following actions relating to
executive compensation:
The Company’s executive officers have annual target cash bonus amounts, expressed as a
percentage of their annual base salaries. The percentage for Mr. Casper was adjusted by the
Compensation Committee, effective May 15, 2008, from 85% to 95%.
The
Compensation Committee also granted an option to purchase 375,000
shares of Company stock to Mr. Casper under the
Company’s 2005 Stock Incentive Plan, as amended and restated on November 9, 2006. The stock option
grant 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 10.3. The options (a) vest in equal annual installments over
the five-year period commencing on the first anniversary of the date of grant so long as he is
employed by the Company on each such date (subject to certain exceptions), (b) have an exercise
price equal to the closing price of the Company’s common stock on the New York Stock Exchange on
May 15, 2008, and (c) have a term of 7 years from such date.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
On May 15, 2008, the Board of Directors of the Company approved amendments to Sections 2 and
11 of Article III of the Company’s Bylaws to provide increased flexibility on the date that
officers are elected annually by the Board and to reflect current reporting relationships.
A copy of the Amendments to Bylaws of the Company is filed as Exhibit 3.1 to this Form 8-K.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
The following exhibits are filed herewith:
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| Exhibit No. |
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Description |
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3.1 |
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Amendments to Bylaws of the Company |
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10.1 |
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Form of Executive Change in Control Retention Agreement for Officers dated May 15, 2008 |
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| Exhibit No. |
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Description |
10.2 |
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Thermo Fisher Scientific Inc. Executive Severance Policy |
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10.3 |
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Stock Option Agreement dated May 15, 2008 between the Registrant and Marc Casper |
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
19th day of May, 2008.
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THERMO FISHER SCIENTIFIC INC.
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By: |
/s/ Seth H. Hoogasian
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Seth H. Hoogasian |
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Senior Vice President, General Counsel and Secretary |
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EXHIBIT INDEX
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| Exhibit No. |
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Description |
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3.1 |
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Amendments to Bylaws of the Company |
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10.1 |
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Form of Executive Change in Control Retention Agreement for Officers dated May 15, 2008 |
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10.2 |
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Thermo Fisher Scientific Inc. Executive Severance Policy |
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10.3 |
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Stock Option Agreement dated May 15, 2008 between the Registrant and Marc Casper |