exv10w4






Exhibit 10.4




EXECUTION COPY




THERMO FISHER SCIENTIFIC INC.




PERFORMANCE RESTRICTED STOCK UNIT AGREEMENT




Granted Under

Thermo Fisher Scientific Inc. 2008 Stock Incentive Plan 




1. Award of Restricted Stock Units.




     This agreement (this “Agreement”) sets forth the terms and conditions of an award by Thermo
Fisher Scientific Inc., a Delaware corporation (the “Company”), on November 21, 2009 (the “Award
Date”) to Marc N. Casper (the “Participant”) of up to 400,000 restricted stock units of the Company
(individually, an “RSU” and collectively, the “RSUs”). Each RSU represents the right to receive
one share of common stock, $1.00 par value, of the Company (“Common Stock”) pursuant to the terms,
conditions and restrictions set forth in this Agreement and in the Company’s 2008 Stock Incentive
Plan (the “Plan”). The shares of Common Stock that are issuable upon vesting of the RSUs are
referred to in this agreement as Shares. Capitalized terms used in this Agreement and not
otherwise defined shall have the same meaning as in the Plan.



2. Vesting Schedule.




     Except as otherwise provided in paragraphs (a) through (f) of Section 3, the RSUs shall vest
in accordance with Schedule A attached hereto and incorporated herein; provided,
that on each vesting date referenced in Schedule A, the Participant is, and has been at all
times since the Award Date, an employee, officer or director of, or consultant or advisor to, the
Company or any other entity the employees, officers, directors, consultants, or advisors of which
are eligible to receive restricted stock awards under the Plan (an “Eligible Participant”).



3. Forfeiture.




     (a) Termination of Relationship with the Company. In the event that the Participant
ceases to be an Eligible Participant for any reason other than those set forth in paragraphs (b)
through (f), the RSUs that have not previously vested shall be immediately forfeited to the
Company.



     (b) Death or Disability. In the event that the Participant’s employment with the
Company or a Subsidiary is terminated by reason of death or “disability” (as defined below) prior
to February 15, 2015, then the target level of RSUs covered by the then-current Measurement Period
(as such term is described in Schedule A) shall vest upon the date of such termination due
to death or disability. For the purposes of this Agreement, a Participant shall be deemed to be
“disabled” at such time as the Participant is receiving disability benefits under the Company’s
Long Term Disability Coverage, as then in effect.



     (c) Discharge without Cause or for Good Reason. In the event that the Participant’s
employment is terminated by the Company or any Subsidiary without “Cause” (as defined in Section
1.2 of the 2009 Restatement of Executive Severance Agreement between the Company



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and the Participant dated November 21, 2009, as may be amended from time to time (the “Severance
Agreement”)) or by the Participant for Good Reason (as defined in Section 1.4 of the Severance
Agreement), and such termination does not entitle the Participant to severance benefits under the
Executive Change in Control Retention Agreement between the Company and the Participant dated
November 21, 2009, as may be amended from time to time (the “CIC Agreement”) prior to February 15,
2015, then the RSUs covered by the then-current Measurement Period shall only vest if the
applicable performance conditions with respect to such Measurement Period (and assuming the last
day of the then-current Measurement Period is the day prior to the announcement of the termination)
are actually achieved (and the Participant shall be deemed to have been an Eligible Participant
during the period beginning on the date of the termination of his employment and ending on the last
day of the applicable Measurement Period).



     (d) Discharge for Cause. In the event that the Participant is discharged by the
Company or a Subsidiary for “Cause” (as defined in Section 1.2 of the Severance Agreement), all
unvested RSUs and all vested RSUs that have not been delivered in accordance with Section 5 below
shall terminate immediately upon the effective date of such discharge. The Participant shall be
considered to have been discharged for Cause if the Company determines, within 30 days after the
Participant’s resignation, that discharge for Cause was warranted.



     (e) Termination by Participant without Good Reason. In the event that the
Participant, prior to February 15, 2015, terminates his employment with the Company or a Subsidiary
without “Good Reason” (as defined in Section 1.4 of the Severance Agreement or Section 1.4 of the
CIC Agreement, as applicable), all unvested RSUs shall terminate immediately upon the effective
date of such termination and all vested RSUs that have not been delivered in accordance with
Section 4 below shall be delivered on the scheduled delivery date.



     (f) Change in Control Event. In the event that the Participant’s employment or
service is terminated by the Company or any Subsidiary without “Cause” (as defined in Section 1.3
of the CIC Agreement) or by the Participant for Good Reason (as defined in Section 1.4 of the CIC
Agreement), and such termination entitles the Participant to severance benefits under the CIC
Agreement, then all unvested RSUs covered by any open Measurement Period shall only vest if the
applicable performance conditions with respect to the then-current Measurement Period (and assuming
the last day of the then-current Measurement Period is the closing date of the Change in Control
Event (as defined in Section 9(b)(1)(B) of the Plan)) are actually achieved (without regard to
performance for any periods following such closing date).



4. Delivery of Shares




          (a) The Company shall deliver the Shares that become issuable upon the vesting of an RSU on
the first anniversary of the Vesting Date; provided, however, that if the RSUs vest
in accordance with paragraph (b) or (f) of Section 3 above, then the Company shall deliver the
Shares that become issuable upon the vesting of an RSU to the Participant or his estate as soon as
administratively practicable, but in any event no later than 60 days after such Vesting Date.




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          (b) The Company shall not be obligated to deliver Shares to the Participant unless the
issuance and delivery of such Shares shall comply with all relevant provisions of law and other
legal requirements including, without limitation, any applicable federal or state securities laws
and the requirements of any stock exchange upon which shares of Common Stock may then be listed.




5. Restrictions on Transfer.




     The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of,
by operation of law or otherwise (collectively “transfer”) any RSUs, or any interest therein,
except by will or the laws of descent and distribution. Upon delivery of Shares pursuant to
Section 4 above, the Participant for two years thereafter shall not transfer more than 50% of the
actual net Shares delivered (after withholding for the payment of taxes); provided,
however, that this restriction shall not apply to a termination of Participant’s employment
under paragraphs (b), (c), (e) or (f) of Section 3 above. The Participant acknowledges that any
stock certificates or other evidence of ownership of RSUs or Shares may bear a restrictive legend
evidencing any applicable transfer restrictions.



6. Provisions of the Plan.




     This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the
Participant with this Agreement.



7. Dividends.




     (a) If at any time during the period between the Award Date and the date that Shares are
issued after the RSU vests, the Company pays a dividend or other distribution with respect to its
Common Stock, including without limitation a distribution of shares of the Company’s stock by
reason of a stock dividend, stock split or otherwise, then on the date the Shares issuable upon
vesting of the RSU are delivered, the Company shall pay the Participant the dividend or other
distribution that would have been paid on such Share if the Participant had owned such Shares
during the period beginning on the Award Date and ending on the respective delivery date. No
dividend or other distribution shall be paid with respect to RSUs that are forfeited.



     (b) Except as set forth in Section 7(a) above and in the Plan, neither the Participant nor any
person claiming under or through the Participant shall be, or have any rights or privileges of, a
stockholder of the Company in respect of the Shares issuable pursuant to the RSUs granted hereunder
until the Shares have been delivered to the Participant.



8. Withholding Taxes; No Section 83(b) Election.




     (a) The Participant expressly acknowledges that the delivery of Shares to the Participant will
give rise to “wages” subject to withholding. Unless the Participant provides notice to the Company
prior to the delivery of the Shares that the Participant will make payment to the Company on the
date of delivery to satisfy all required withholding taxes, the Participant hereby authorizes the
Company to hold back from the shares to be delivered pursuant to Section 4 of this Agreement of
that number of shares calculated to satisfy all such federal, state, local or



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other applicable taxes required to be withheld in connection with such delivery of Shares;
provided, however, that the total tax withholding where Shares are being used to satisfy such tax
obligations cannot exceed the Company’s minimum statutory withholding obligations (based on minimum
statutory withholding rates for federal and state tax purposes, including payroll taxes, that are
applicable to such wages).



     (b) The Participant acknowledges that no election under Section 83(b) of the Code may be filed
with respect to this Award.


9. No Right To Employment or Other Status. The grant of an award of RSUs shall not be
construed as giving the Participant the right to continued employment or any other relationship
with the Company. The Company expressly reserves the right at any time to dismiss or otherwise
terminate its relationship with the Participant free from any liability or claim under the Plan or
this Agreement, except as expressly provided herein.



10. Conflicts With Other Agreements. In the event of any conflict or inconsistency between
the terms of this Agreement and any employment, severance or other agreement between the Company
and the Participant, the terms of this Agreement shall govern.



11. Governing Law. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Delaware without regard to any applicable conflicts of laws.



12. Unfunded Rights. The right of the Participant to receive Common Stock pursuant to this
Agreement is an unfunded and unsecured obligation of the Company. The Participant shall have no
rights under this Agreement other than those of an unsecured general creditor of the Company.



13. Compliance with Section 409A of the Code. If and to the extent any portion of any
payment under this Agreement to the Participant in connection with his or her employment
termination is determined to constitute “nonqualified deferred compensation” within the meaning of
Section 409A of the Code and the Participant is a specified employee as defined in Section
409A(a)(2)(B)(i) of the Code, as determined by the Company in accordance with its procedures, by
which determination the Participant (through accepting the Award) agrees that he or she is bound,
such portion of the payment, compensation or other benefit shall not be paid before the day that is
six months plus one day after the date of “separation from service” (as determined under Code
Section 409A) (the “New Payment Date”), except as Code Section 409A may then permit. The aggregate
of any payments that otherwise would have been paid to the Participant during the period between
the date of separation from service and the New Payment Date shall be paid to the Participant in a
lump sum on such New Payment Date, and any remaining payments will be paid on their original
schedule.




     The Company makes no representations or warranty and shall have no liability to the
Participant or any other person if any provisions of or payments, compensation or other benefits
under this Agreement are determined to constitute nonqualified deferred compensation subject to
Code Section 409A but do not to satisfy the conditions of that section.



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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.



	 	 	 	 	 
	 	THERMO FISHER SCIENTIFIC INC.

 	 
	Dated: November 21, 2009 	By:  	/s/ Seth H. Hoogasian
 	 
	 	Name:  	Seth H. Hoogasian 	 
	 	Title:  	Senior Vice President, General Counsel and Secretary 	 
	 



	 	 	 	 	 	 	 
	 

	 	Participant:
	 	     /s/ Marc N. Casper
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 







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