Material Agreement

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): July 16, 2020       THERMO FISHER SCIENTIFIC INC. (Exact name of registrant as specified in its charter)       Delaware   1-8002   04-2209186 (State or other jurisdiction of incorporation)   (Commission File Number)   (I.R.S. Employer Identification No.)   168 Third Avenue Waltham , Massachusetts       02451 (Address of Principal Executive Offices)       (Zip Code)   Registrant’s telephone number, including area code: ( 781 ) 622-1000     (Former Name or Former Address, if Changed Since Last Report)           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))       Securities registered pursuant to Section 12(b) of the Act:   Title of each class   Trading Symbol(s)   Name of each exchange on which registered Common Stock, $1.00 par value   TMO   New York Stock Exchange Floating Rate Notes due 2020   TMO /20A   New York Stock Exchange 2.150% Notes due 2022   TMO 22A   New York Stock Exchange 0.750% Notes due 2024   TMO 24A   New York Stock Exchange 0.125% Notes due 2025   TMO 25B   New York Stock Exchange 2.000% Notes due 2025   TMO 25   New York Stock Exchange 1.400% Notes due 2026   TMO 26A   New York Stock Exchange 1.450% Notes due 2027   TMO 27   New York Stock Exchange 1.750% Notes due 2027   TMO 27B   New York Stock Exchange 0.500% Notes due 2028   TMO 28A   New York Stock Exchange 1.375% Notes due 2028   TMO 28   New York Stock Exchange 1.950% Notes due 2029   TMO 29   New York Stock Exchange 0.875% Notes due 2031   TMO 31   New York Stock Exchange 2.375% Notes due 2032   TMO 32   New York Stock Exchange 2.875% Notes due 2037   TMO 37   New York Stock Exchange 1.500% Notes due 2039   TMO 39   New York Stock Exchange 1.875% Notes due 2049   TMO 49   New York Stock Exchange   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.  ¨     Common Stock, $1.00 par value         Item 1.01. Entry Into a Material Definitive Agreement.   As previously announced, on March 3, 2020, Thermo Fisher Scientific Inc. (“Thermo Fisher”) and QIAGEN N.V. (“QIAGEN”) entered into a Business Combination Agreement (the “Business Combination Agreement”) pursuant to which, upon the terms and subject to the conditions thereof, a wholly owned acquisition subsidiary of Thermo Fisher has commenced a public tender offer (the “Offer”) to purchase all issued ordinary shares of QIAGEN (the “QIAGEN Shares”).   On July 16, 2020, Thermo Fisher and QIAGEN entered into an amendment (the “Amendment”) to the Business Combination Agreement. The Amendment provides for, among other things, an increase to the offer price from EUR 39.00 per QIAGEN Share to EUR 43.00 per QIAGEN Share, and a reduction of the minimum acceptance threshold from 75% to 66.67% of QIAGEN’s issued and outstanding ordinary share capital at the end of the acceptance period for the Offer (the “Acceptance Period”), excluding, for the avoidance of doubt, any QIAGEN Shares held by QIAGEN in treasury at the end of the Acceptance Period.   Pursuant to and subject to the terms of the Amendment, QIAGEN has agreed to pay to Thermo Fisher an expense reimbursement payment of $95 million in cash under certain circumstances if the minimum acceptance threshold is not satisfied by the end of the Acceptance Period.   Thermo Fisher will make available an amendment to the Offer Document to effect the amendment of the terms of the Offer under applicable securities laws. As a result of the amendment to the Offer Document, the Acceptance Period will be extended by two (2) weeks pursuant to the German Securities Acquisition and Takeover Act and will expire on August 10, 2020, 24:00 hours (Frankfurt am Main local time) / 18:00 hours (New York City local time).   Other than as expressly modified by the Amendment, the Business Combination Agreement remains in full force and effect as originally executed.   The foregoing description of the Amendment is only a summary of certain material provisions thereof, does not purport to be complete, and is qualified in its entirety by reference to the full text of the Amendment, which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.   On July 16, 2020, Thermo Fisher and QIAGEN issued a joint press release announcing the execution of the Amendment. A copy of the joint press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.   Item 9.01. Financial Statements and Exhibits.   (d) Exhibits.   Exhibit Number   Description     2.1   Amendment No. 1 to the Business Combination Agreement, dated as of July 16, 2020, by and between Thermo Fisher Scientific, Inc. and QIAGEN N.V.* 99.1   Joint Press Release, dated July 16, 2020 104   The cover page from this Current Report on Form 8-K, formatted in Inline XBRL   * Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished supplementally to the Securities and Exchange Commission upon request; provided, that Thermo Fisher may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules or exhibits so furnished.       Forward-Looking Statements   This communication contains forward-looking statements that involve a number of risks and uncertainties, including statements about expected revenue growth and long-term impacts of the COVID-19 pandemic. Words such as “believes,” “anticipates,” “plans,” “expects,” “seeks,” “estimates,” and similar expressions are intended to identify forward-looking statements, but other statements that are not historical facts may also be deemed to be forward-looking statements. Important factors that could cause actual results to differ materially from those indicated by forward-looking statements include risks and uncertainties relating to: the duration and severity of the COVID-19 pandemic; the need to develop new products and adapt to significant technological change; implementation of strategies for improving growth; general economic conditions and related uncertainties; dependence on customers’ capital spending policies and government funding policies; the effect of economic and political conditions and exchange rate fluctuations on international operations; use and protection of intellectual property; the effect of changes in governmental regulations; and the effect of laws and regulations governing government contracts, as well as the possibility that expected benefits related to recent or pending acquisitions, including the proposed transaction, may not materialize as expected; the proposed transaction not being timely completed, if completed at all; regulatory approvals required for the transaction not being timely obtained, if obtained at all, or being obtained subject to conditions; prior to the completion of the transaction, QIAGEN’s business experiencing disruptions due to transaction-related uncertainty or other factors making it more difficult to maintain relationships with employees, customers, licensees, other business partners or governmental entities; difficulty retaining key employees; the outcome of any legal proceedings related to the proposed transaction; and the parties being unable to successfully implement integration strategies or to achieve expected synergies and operating efficiencies within the expected time-frames or at all. Additional important factors that could cause actual results to differ materially from those indicated by such forward-looking statements are set forth in Thermo Fisher’s Annual Report on Form 10-K for the year ended December 31, 2019 and Quarterly Report on Form 10-Q for the quarter ended March 28, 2020, which are on file with the U.S. Securities and Exchange Commission (“SEC”) and available in the “Investors” section of Thermo Fisher’s website, ir.thermofisher.com, under the heading “SEC Filings,” and in any subsequent Quarterly Reports on Form 10-Q and other documents Thermo Fisher files with the SEC, and in QIAGEN’s Annual Report on Form 20-F for the year ended December 31, 2019, which is on file with the SEC and available in the “Investor Relations” section of QIAGEN’s website, corporate.qiagen.com/investor-relations, under the heading “Financial Reports,” and in any subsequent Quarterly Reports on Form 6-K and other documents QIAGEN files or furnishes with the SEC. While Thermo Fisher or QIAGEN may elect to update forward-looking statements at some point in the future, Thermo Fisher and QIAGEN specifically disclaim any obligation to do so, even if estimates change and, therefore, you should not rely on these forward-looking statements as representing either Thermo Fisher’s or QIAGEN’s views as of any date subsequent to today.   Additional Information and Where to Find It   This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell any ordinary shares of QIAGEN or any other securities, nor is it a substitute for the tender offer materials that Thermo Fisher and/or its acquisition subsidiary has filed with the SEC and published in Germany. The terms and conditions of the tender offer are published in, and the offer to purchase ordinary shares of QIAGEN is made only pursuant to, the offer document, the publication of which was permitted by German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht) , and related offer materials prepared by Thermo Fisher and/or its acquisition subsidiary. The offer document for the tender offer (in German and in English), as amended, containing the detailed terms and conditions of, and other information relating to, the tender offer is, among other things, published on the internet at https://corporate.thermofisher.com/en/offer.html.   Acceptance of the tender offer by shareholders that are resident outside of the member states of the European Union and the European Economic Area and the United States may be subject to further legal requirements. With respect to the acceptance of the tender offer outside of the member states of the European Union and the European Economic Area and the United States, no responsibility is assumed for the compliance with such legal requirements applicable in the respective jurisdiction.       THE TENDER OFFER MATERIALS (INCLUDING THE OFFER DOCUMENT, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS) AND QIAGEN’S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9, AS WELL AS QIAGEN’S RECOMMENDATION STATEMENT PURSUANT TO SEC. 27 OF THE GERMAN SECURITIES ACQUISITION AND TAKEOVER ACT (WERTPAPIERERWERBS- UND ÜBERNAHMEGESETZ-WPÜG) AND POSITION STATEMENT (GEMOTIVEERDE STANDPUNTBEPALING) PURSUANT TO SECTION 18 AND APPENDIX G OF THE DUTCH DECREE ON PUBLIC TAKEOVERS (BESLUIT OPENBARE BIEDINGEN), AS THEY MAY BE AMENDED FROM TIME TO TIME, CONTAIN IMPORTANT INFORMATION. INVESTORS AND SHAREHOLDERS OF QIAGEN ARE URGED TO READ THESE DOCUMENTS CAREFULLY BECAUSE THEY, AND NOT THIS DOCUMENT, WILL GOVERN THE TERMS AND CONDITIONS OF THE TENDER OFFER, AND BECAUSE THEY CONTAIN IMPORTANT INFORMATION THAT SUCH PERSONS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR ORDINARY SHARES.   The tender offer materials, including the offer document and the related letter of transmittal and certain other tender offer documents, and the solicitation/recommendation statement and other documents filed with the SEC by Thermo Fisher or QIAGEN, may be obtained free of charge at the SEC’s website at www.sec.gov or at QIAGEN’s website at www.qiagen.com or by contacting QIAGEN’s investor relations department at 240-686-2222 or at Thermo Fisher’s website at www.thermofisher.com or by contacting Thermo Fisher’s investor relations department at 781-622-1111. In addition, Thermo Fisher’s tender offer statement and other documents it files with the SEC are available at https://ir.thermofisher.com/investors. Furthermore, copies of the offer document are also available free of charge by contacting D.F. King & Co., Inc., Thermo Fisher’s information agent for the tender offer.       SIGNATURES   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.     THERMO FISHER SCIENTIFIC INC.             Date: July 16, 2020 By: /s/ Michael A. Boxer     Name: Michael A. Boxer     Title: Senior Vice President and General Counsel