Item 1.01. Entry into a Material
Definitive Agreement.
As previously
announced, on March 3, 2020, Thermo Fisher Scientific Inc. (“Thermo Fisher”) obtained committed debt financing from
JPMorgan Chase Bank, N.A. and Morgan Stanley Senior Funding, Inc. in connection with its entry into a Business Combination Agreement
(the “Combination Agreement”) with QIAGEN N.V. (“QIAGEN”).
On April 17, 2020, Thermo Fisher
entered into a Bridge Credit Agreement (the “Bridge Credit Agreement”),
which is the definitive agreement related to the previously obtained committed debt financing and provides a 364-day senior
unsecured bridge loan facility (the “Bridge Loan Facility”), originally in the principal amount of up to €9.25
billion.
On
June 5, 2020 (the “Effective Date”), Thermo Fisher entered into a Term Loan Credit Agreement, as defined and further
described below, which replaces €3.0 billion of
the Bridge Loan Facility with a €3.0 billion senior unsecured one-year term facility. Capitalized
terms used in this Form 8-K and not defined herein shall have the meanings ascribed to them in the Term Loan Credit Agreement,
which is attached to this Form 8-K as Exhibit 10.1 and incorporated herein by reference.
On
the Effective Date, Thermo Fisher also entered into an amendment to the Bridge Credit Agreement (the “Bridge Amendment”).
The Bridge Amendment increases the maximum leverage ratio, defined as consolidated indebtedness (minus unrestricted cash
and cash equivalents, subject to certain exceptions) to consolidated EBITDA, to 5.0 to 1.0 as of the last date of each of the first
two full fiscal quarters ended after the first drawing of the Bridge Loan Facility, and makes certain changes to the provisions
of the Bridge Credit Agreement relating to mandatory commitment reductions and mandatory prepayments.
Finally,
on the Effective Date, Thermo Fisher entered into an agreement to amend and extend the terms of its existing $2.5 billion senior
unsecured Revolving Credit Agreement, dated as of July 1, 2016 (as amended or modified from time to time, the “Revolving
Credit Agreement”), with each lender named therein and Bank of America, N.A., as administrative agent (the “Amend and
Extend Agreement”). The Amend and Extend Agreement extends the expiration date for the commitments and loans of consenting
lenders from July 1, 2021 to July 1, 2022 pursuant to Section 2.15 of the Revolving Credit Agreement, and amends the Revolving
Credit Agreement to, among other things, (i) delete or modify certain affirmative and negative covenants, and (ii) increase the
maximum leverage ratio, defined as consolidated indebtedness (minus unrestricted cash and cash equivalents, subject to certain
exceptions) to consolidated EBITDA, to 5.0 to 1.0 starting with the fiscal quarter ending June 30, 2020, with such ratio stepping
down to 4.0 to 1.0 for the two consecutive fiscal quarters starting on the earlier of (a) the last day of the first fiscal quarter
of 2022 and (b) the third full fiscal quarter ending after the Acquisition Closing Date (as defined in the Revolving Credit Agreement),
and then stepping down to 3.5 to 1.0 for each fiscal quarter ending thereafter, subject to the right of Thermo Fisher to increase
such maximum consolidated leverage ratio in connection with certain qualified acquisitions. Except as set forth in the Amend and
Extend Agreement, the terms and conditions of the Revolving Credit Agreement remain in full force and effect.
Term
Loan Credit Agreement
The Term Loan Credit Agreement
(the “Term Loan Credit Agreement”) is a one-year senior unsecured term loan facility in the principal amount of up
to €3.0 billion, among Thermo Fisher, each lender from time to time party thereto,
and JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”). Loans under the Term Loan Credit
Agreement (the “Term Loans”) will be available in Dollars and/or Euros to fund the purchase of equity securities of
QIAGEN pursuant to the Combination Agreement and to pay all or a portion of the costs incurred by Thermo Fisher or any of its subsidiaries
in connection therewith. The Term Loans will be available in up to two drawings as follows:
(i) the first drawing may be made on the date (the “Closing
Date”) (x) Thermo Fisher or one of its subsidiaries shall have accepted all outstanding equity interests of QIAGEN validly
tendered pursuant to a public tender offer (the “Offer”) to purchase
all issued ordinary shares, par value €0.01 per share, of QIAGEN at a price of €39 per QIAGEN share in cash, without
interest, and shall have tendered payment for such equity interests in accordance with the terms of the Combination Agreement
or (y)(I) the Administrative Agent shall have received an officer’s certificate from Thermo Fisher certifying that Thermo
Fisher or one of its subsidiaries shall accept all outstanding equity interests that have been validly tendered pursuant to the
Offer and shall tender payment for such equity interests in accordance with the terms of the Combination Agreement, in each case,
within one business day following the Closing Date and (II) Thermo Fisher shall have caused the proceeds of the Term Loans to be
deposited with the settlement agent pursuant to the terms of the Offer documents or shall have made such other arrangements reasonably
satisfactory to the Administrative Agent for the payment of the equity interests that have validly tendered pursuant to the Offer;
and (ii) the second drawing may be made at any time on or prior to the date that is 120 days after the Closing Date (the date on
which any such second drawing is made, the “Second Funding Date”).
If no Default or Event of Default has occurred, (i) each
Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the EURIBO Rate for such Interest Period plus a margin of 1.250% to 1.625% per annum based on Thermo Fisher’s
Debt Ratings and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus a margin of 0.250% to 0.625% per annum based on Thermo Fisher’s
Debt Ratings.
Beginning on the date that is 60 days after the Effective Date
and continuing until the earlier of (i) the date of termination of the Commitments, (ii) the Closing Date (if the Commitments are
fully utilized on such date) and (iii) the Second Funding Date, Thermo Fisher shall pay a commitment fee in Euros at a per annum
rate equal to a rate between 0.175% and 0.250% per annum based on Thermo Fisher’s Debt Ratings times the actual daily amount
of the Commitments, subject to certain adjustments. The commitment fee is due and payable quarterly in arrears on the last Business
Day of each March, June, September and December, commencing with the first such date to occur after the date that is 60 days after
the Effective Date. The commitment fee shall be calculated quarterly in arrears, and is subject to certain adjustments for changes
in the applicable rate for undrawn Term Loans during any quarter.
The Term Loan Credit Agreement
contains customary representations and warranties, as well as affirmative and negative covenants. The negative covenants include
restrictions on liens and fundamental changes. The Term Loan Credit Agreement also requires that Thermo Fisher maintain (i) a consolidated
indebtedness (minus unrestricted cash and cash equivalents, subject to certain exceptions) to consolidated EBITDA ratio of no greater
than 5.0 to 1.0 as of the last date of each of the first two full fiscal quarters ended after the Closing Date, with such ratio
stepping down to 4.0 to 1.0 for the last date of each of the two immediately following fiscal quarters, and then stepping down
to 3.5 to 1.0 for each fiscal quarter thereafter, subject to the right of Thermo Fisher to increase such maximum consolidated net
leverage ratio in connection with certain qualified acquisitions and (ii) a consolidated interest coverage ratio as of the last
day of any fiscal quarter of Thermo Fisher (commencing with the first full fiscal quarter completed at the Closing Date) of at
least 3.0 to 1.0.
The foregoing description of the Term
Loan Credit Agreement, the Bridge Amendment and the Amend and Extend Agreement does not purport to be a complete statement of the
parties’ rights under any such agreement and is qualified in its entirety by reference to the full text of each agreement,
which are filed as Exhibits 10.1, 10.2 and 10.3 hereto.