2008 RESTATEMENT
OF
EXECUTIVE SEVERANCE
AGREEMENT
THIS
RESTATEMENT (the “Restatement”) to the Executive
Severance Agreement dated November 19, 2003 and amended on November
9, 2006 (the “Agreement”) by and between THERMO FISHER
SCIENTIFIC INC., a Delaware corporation (the
“Company”), and Mr. Marc N. Casper (the
“Executive”) is made this 21st day of November, 2008 by
and between the Company and the Executive (the
“Effective Date”).
WHEREAS, the
Company recognizes that the uncertainty regarding the future
employment prospects for key personnel may result in the departure
or distraction of key personnel to the detriment of the Company and
its stockholders;
WHEREAS, the
Board of Directors of the Company (the “Board”) has
determined that appropriate steps should be taken to reinforce and
encourage the continued employment and dedication of the Company's
key personnel without distraction from such uncertainty and related
events and circumstances; and
WHEREAS, the
Company and the Executive wish to amend and restate the Agreement
to bring the Agreement into compliance with Section 409A of the
Internal Revenue Code of 1986;
NOW, THEREFORE,
as an inducement for and in consideration of the Executive
remaining in its employ, the Company agrees that the Executive
shall receive the severance benefits set forth in this Agreement in
the event the Executive's employment with the Company is terminated
under the circumstances described below.
As used herein,
the following terms shall have the following respective
meanings:
1.1 “
Change in Control ” means an event or occurrence set
forth in any one or more of subsections (a) through (d) below
(including an event or occurrence that constitutes a Change in
Control under one of such subsections but is specifically exempted
from another such subsection):
(a) the
acquisition by an individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership of any capital stock
of the Company if, after such acquisition, such Person beneficially
owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) 50% or more of either (i) the then-outstanding shares
of common stock of the Company (the “Outstanding Company
Common Stock”) or (ii) the combined voting power of the
then-outstanding securities of the Company entitled to vote
generally in the election of directors (the “Outstanding
Company Voting Securities”); provided , however
, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change in Control: (i) any
acquisition by the Company, (ii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (iii) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (i) and (ii) of subsection (c) of this
Section 1.1; or
(b)
such time as the Continuing Directors
(as defined below) do not constitute a majority of the Board (or,
if applicable, the Board of Directors of a successor corporation to
the Company), where the term “Continuing Director”
means at any date a member of the Board (i) who was a member of the
Board on the date of the execution of this Agreement or (ii) who
was nominated or elected subsequent to such date by at least a
majority of the directors who were Continuing Directors at the time
of such nomination or election or whose election to the Board was
recommended or endorsed by at least a majority of the directors who
were Continuing Directors at the time of such nomination or
election; provided , however , that there shall be
excluded from this clause (ii) any individual whose initial
assumption of office occurred as a result of an actual or
threatened election contest with respect to the election or removal
of directors or other actual or threatened solicitation of proxies
or consents, by or on behalf of a person other than the Board;
or
(c) the
consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company
or a sale or other disposition of all or substantially all of the
assets of the Company in one or a series of transactions (a
“Business Combination”), unless, immediately following
such Business Combination, each of the following two conditions is
satisfied: (i) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding
securities entitled to vote generally in the election of directors,
respectively, of the resulting or acquiring corporation in such
Business Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns the Company
or substantially all of the Company's assets either directly or
through one or more subsidiaries) (such resulting or acquiring
corporation is referred to herein as the “Acquiring
Corporation”) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, respectively; and (ii) no Person (excluding the
Acquiring Corporation or any employee benefit plan (or related
trust) maintained or sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or indirectly, 50% or more
of the then outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the
then-outstanding securities of such corporation entitled to vote
generally in the election of directors; or
(d) approval
by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
1.2 “
Cause ” means the Executive's willful engagement in
illegal conduct or gross misconduct which is materially and
demonstrably injurious to the Company. For purposes of
this Section 1.2, no act or failure to act by the Executive shall
be considered “willful” unless it is done, or omitted
to be done, in bad faith and without reasonable belief that the
Executive's action or omission was in the best interests of the
Company.
1.3 “
Disability ” means the Executive's inability, due to a
physical or mental disability, for a period of 90 days, whether or
not consecutive, during any 360-day period to perform the
Executive’s duties on behalf of the Company, with or without
reasonable accommodation as that term is defined under state or
federal law. A determination of disability shall be made
by a physician satisfactory to both the Executive and the Company,
provided that if the Executive and the Company
do not agree on a physician, the Executive and the Company shall
each select a physician and these two together shall select a third
physician, whose determination as to disability shall be binding on
all parties.
1.4 “
Good Reason ” means the occurrence, without the
Executive's written consent, of any of the events or circumstances
set forth in clauses (a) through (f)
below. Notwithstanding the occurrence of any such event
or circumstance, such occurrence shall not be deemed to constitute
Good Reason if, prior to the effective date of termination (which
shall be not less than 15 days following delivery of written notice
of termination by Executive to the Company), such event or
circumstance has been fully corrected and the Executive has been
reasonably compensated for any losses or damages resulting
therefrom.
(a) the
assignment to the Executive of duties inconsistent in any material
respect with the Executive's position (including status, offices,
titles and reporting requirements), authority or responsibilities
in effect as of the date of this Agreement or a material diminution
in such position, authority or responsibilities;
(b) a
reduction in the Executive's annual base salary as in effect on the
date of this Agreement or as the same was or may be increased
hereafter from time to time;
(c) the
failure by the Company to (i) continue in effect any material
compensation or benefit plan or program, including without
limitation any life insurance, medical, health and accident or
disability plan and any vacation program or policy, in which the
Executive participates or which is applicable to the Executive (a
“Benefit Plan”), unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been
made with respect to such plan or program, (ii) continue the
Executive's participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable than the
basis previously existing (iii) award cash bonuses to the Executive
in amounts and in a manner substantially consistent with past
practice in light of the Company's financial performance and
Executive’s performance or (iv) continue to provide any
material fringe benefit previously enjoyed by Executive;
(d) a
change by the Company in the location at which the Executive
performs the Executive’s principal duties for the Company to
a new location that is both (i) outside a radius of 50 miles from
the Executive's principal residence and (ii) more than 30 miles
from the location at which the Executive performed the
Executive’s principal duties for the Company immediately
prior to the date of this Agreement; or a requirement by the
Company that the Executive travel on Company business to a
substantially greater extent than required immediately prior to the
date of this Agreement;
(e) the
failure of the Company to obtain the agreement from any successor
to the Company to assume and agree to perform this Agreement, as
required by Section 6.1; and
(f) any
failure of the Company to pay or provide to the Executive any
portion of the Executive's compensation or benefits due under any
Benefit Plan within seven days of the date such compensation or
benefits are due (provided, however, that in the case of benefits,
the Company shall have a period of 30 days after receipt of notice
from Executive to cure any default), or any material breach by the
Company of this Agreement or any employment agreement with the
Executive.
The Executive's
right to terminate the Executive’s employment for Good Reason
shall not be affected by the Executive’s incapacity due to
physical or mental illness.
2.
Term of Agreement . This Agreement, and all
rights and obligations of the parties hereunder, shall take effect
upon the Effective Date and shall expire upon the first to occur of
(a) the expiration of the Term (as defined below) or (b) the
fulfillment by the Company of all of its obligations under Sections
4 and 6.2 if the Executive's employment with the Company terminates
prior to the expiration of the Term. “Term”
shall mean the period commencing as of the Effective Date and
continuing in effect through November 9, 2011; provided ,
however , that on November 9, 2011 and each November 9
thereafter, the Term shall be automatically extended for one
additional year unless, not later than six months prior to the
scheduled
