<PAGE> 1
As filed with the Securities and Exchange Commission on December 18, 1998.
Registration No. ____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BECKMAN COULTER, INC.
(Exact name of registrant as specified in its charter)
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Delaware 95-1040600
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4300 North Harbor Boulevard, Fullerton, California 92834-3100
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(Address of principal executive offices)
BECKMAN COULTER, INC. EMPLOYEES' STOCK PURCHASE PLAN
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(Full title of the plan)
William H. May, Esq.
Vice President, General Counsel and Corporate Secretary
Beckman Coulter, Inc.
4300 North Harbor Boulevard
Fullerton, California 92834-3100
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(Name and address of agent for service)
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Telephone number, including area code, of agent for service: (714) 871-4848
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of securities to be price offering registration
to be registered registered per unit price fee
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.10 per share 750,000(1)(2) shares $48.875(3) $36,656,250(3) $10,191.00(3)
================================================================================================
</TABLE>
(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above, options and other rights to purchase or acquire
the shares of Common Stock covered by the Prospectus and, pursuant to Rule
416 under the Securities Act of 1933, as amended (the "Securities Act"), an
additional indeterminate number of shares and rights which by reason of
certain events specified in the Beckman Coulter, Inc. Employees' Stock
Purchase Plan (the "Plan") may become subject to the Plan and which may be
offered or sold pursuant to the Plan.
(2) Each share is accompanied by a common share purchase right pursuant to the
registrant's Rights Agreement, dated March 28, 1989, as amended, with First
Chicago Trust Company of New York, as Rights Agent.
(3) Pursuant to Rule 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee were calculated based upon the average
of the high and low prices of the Common Stock on December 15, 1998, as
reported on the New York Stock Exchange and published in the Western Edition
of The Wall Street Journal.
The Exhibit Index included in this Registration Statement is at page 6.
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<PAGE> 2
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to employees
as specified by Rule 428(b)(1) of the Securities Act. Such documents need not be
filed with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents, which include the
statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
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<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT*
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Registration Statement on Form S-8 of Beckman Instruments,
Inc. relating to the Plan (formerly the Beckman Instruments, Inc.
Employees' Stock Purchase Plan) filed with the Commission on
December 19, 1995 (registration number 33-65155).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the original issuance of the Common Stock registered
hereby is passed on for Beckman Coulter, Inc. (the "Company") the Company by
William H. May, Vice President, General Counsel and Secretary of the Company.
Mr. May is compensated by the Company as an employee, is the beneficial owner of
shares of the Company's Common Stock, is the holder of options to acquire shares
of the Company's Common Stock, and is eligible to participate in the Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Fourth Restated Certificate of Incorporation provides that
a director of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law (the "DGCL"), or (iv) for any transaction
from which the director derived an improper personal benefit.
The Company's Fourth Restated Certificate of Incorporation and Bylaws
provide generally that each person who is or was a director or officer of the
Company shall be indemnified and held harmless by the Company to the fullest
extent authorized by the DGCL. Section 145 of the DGCL permits a corporation,
subject to certain limitations, to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or was serving in any of such
capacities for another entity at the request of the corporation, against
expenses (including attorneys' fees), judgments, fines and certain settlements
actually and reasonably incurred by such person.
The Company maintains directors' and officers' liability insurance which
covers certain liabilities and expenses of officers and directors of the Company
and covers the Company for reimbursement of payments to directors and officers
in respect of such liabilities and expenses.
ITEM 8. EXHIBITS
See the attached Exhibit Index on page 6.
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<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fullerton, State of California, on December 4, 1998.
BECKMAN COULTER, INC.
By: /s/ JOHN P. WAREHAM
----------------------------------
John P. Wareham
Its: President, Chief Executive
Officer and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints John
P. Wareham, Dennis K. Wilson, Fidencio M. Mares, and James T. Glover, or each of
them individually, his or her true and lawful attorneys-in-fact and agents with
full powers of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them
individually, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ LOUIS T. ROSSO Chairman of the Board and Director December 4, 1998
- -------------------------------
Louis T. Rosso
/s/ JOHN P. WAREHAM President, Chief Executive Officer December 4, 1998
- ------------------------------- and Director
John P. Wareham (Principal Executive Officer)
/s/ DENNIS K. WILSON Vice President, Finance & Chief December 4, 1998
- ------------------------------- Financial Officer
Dennis K. Wilson (Principal Financial Officer)
</TABLE>
4
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ JAMES T. GLOVER Vice President and Controller December 4, 1998
- ------------------------------- (Controller)
James T. Glover
/s/ HUGH K. COBLE Director December 4, 1998
- -------------------------------
Hugh K. Coble
/s/ PETER B. DERVAN Director December 4, 1998
- -------------------------------
Peter B. Dervan
/s/ CHARLES A. HAGGERTY Director December 4, 1998
- -------------------------------
Charles A. Haggerty
/s/ GAVIN S. HERBERT Director December 4, 1998
- -------------------------------
Gavin S. Herbert
/s/ VAN B. HONEYCUTT Director December 4, 1998
- -------------------------------
Van B. Honeycutt
/s/ WILLIAM N. KELLEY Director December 4, 1998
- -------------------------------
William N. Kelley
/s/ C. RODERICK O'NEIL Director December 4, 1998
- -------------------------------
C. Roderick O'Neil
</TABLE>
5
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EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 Beckman Coulter, Inc. Employees' Stock Purchase Plan (Composite
Plan Document consisting of Amended and Restated Plan as of
November 1, 1996, and reflecting Amendment 1996-1 to the Plan,
effective November 1, 1996, Amendment 1997-1 to the Plan,
effective January 1, 1998, and Amendment 1998-1 to the Plan,
effective July 1, 1998).
4.2 Rights Agreement, dated as of March 28, 1989, between Beckman
Instruments, Inc. and Morgan Shareholder Services Trust Company,
as Rights Agent, filed as Exhibit 4 to Beckman Instruments,
Inc.'s Form 8-K dated April 13, 1989, and incorporated herein by
this reference.
4.3 First Amendment to Rights Agreement, dated as of June 24, 1992,
between Beckman Instruments, Inc. and First Chicago Trust
Company of New York (formerly Morgan Shareholder Services Trust
Company), filed as Exhibit 1 to Beckman Instruments, Inc.'s Form
8-K dated July 1, 1992, and incorporated herein by this
reference.
5. Opinion of Company Counsel (opinion re legality).
15. KPMG Peat Marwick LLP Letter Regarding Unaudited Financial
Information.
23.1 Consent of KPMG Peat Marwick LLP (consent of independent
auditors).
23.2 Consent of Company Counsel (included in Exhibit 5).
24. Power of Attorney (included in this Registration Statement under
"Signatures").
<PAGE> 1
EXHIBIT 4.1
COMPOSITE PLAN DOCUMENT
FOR
BECKMAN COULTER, INC.
EMPLOYEES' STOCK PURCHASE PLAN
This Composite Plan Document incorporates:
a. Amendment 1996-1 (executed October 11, 1996), effective November 1,
1996; and
b. Amendment 1997-1 (executed October 20, 1997), effective January 1,
1998.
c. Amendment 1998-1 (executed December 9, 1998), effective July 1, 1998.
<PAGE> 2
BECKMAN COULTER, INC.
EMPLOYEES' STOCK PURCHASE PLAN
1. PURPOSE
The purpose of the Beckman Coulter, Inc. Employees' Stock Purchase Plan
is to furnish to eligible employees an incentive to advance the best interests
of the Company by providing a method whereby they voluntarily may purchase stock
of Beckman Coulter, Inc, at a favorable price and upon favorable terms.
2. ELIGIBILITY
(a) GENERAL STATEMENT, "ELIGIBLE EMPLOYEES". Subject to the exceptions
and limitations stated in subparagraph (b) and any applicable local law, all
regular employees, as defined in subparagraph (c), of Beckman Coulter, Inc., a
Delaware corporation, (the "Company") are "Eligible Employees" who may
participate in the plan, and, in addition, all regular employees of any present
or future subsidiary of the Company to which the plan may be extended on a
nondiscriminatory basis by Company management, shall be "Eligible Employees" who
may participate in the plan.
(b) EXCEPTIONS AND LIMITATIONS. The exceptions and limitations referred
to in subparagraph (a) are the following: (i) no employee shall be eligible to
participate in the plan unless prior to the date of grant (as defined in
subparagraph 4(a)) he or she has completed at least one full calendar month of
continuous employment, (ii) no employee shall be eligible to participate to the
extent that suspension is required pursuant to Section 401(k) of the Internal
Revenue Code of 1986, as amended (the "Code"), because of a hardship withdrawal
from a 401(k) plan, and (iii) no option shall be granted to an employee if such
employee immediately after the option is granted, owns stock possessing five
percent or more of the total combined voting power or value of all classes of
stock of the Company or of a subsidiary company.
(c) REGULAR EMPLOYEES DEFINED. The term "regular employees" means all
employees of the Company and, as the case may be, of a subsidiary of the Company
who are regularly employed for continuous employment.
3. STOCK SUBJECT TO THE PLAN
Subject to the provisions of paragraph 10 (relating to adjustment upon
changes in stock), a number of shares of the Company's $.10 par value common
stock ("common stock") in an amount equal to 1.25% of the total number of issued
and outstanding shares of such common stock as of May 6, 1992 (the "1.25%
Limit") shall become available for issuance under the plan on July 1, 1992, and
thereafter, a number of shares of common stock in an amount equal to the 1.25%
Limit shall become available for issuance under the plan each calendar year
(commencing
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with the calendar year beginning on January 1, 1993). In addition, any unused
portion of the shares of such common stock remaining from those reserved in 1991
for issuance under the plan and any unused portion of the 1.25% Limit for any
calendar year shall remain available for issuance under the plan. Such shares of
the Company's common stock may be unissued shares or reacquired shares or shares
bought on the market for purposes of the plan.
4. GRANT OF OPTIONS
(a) GENERAL STATEMENT; "DATE OF GRANT"; "OPTION PERIOD"; "DATE OF
EXERCISE". Following the effective date of the plan and continuing while the
plan remains in force, the Company will offer options under the plan to all
eligible employees, subject, however, to the limitation stated in subparagraph
6(e) which limits the rights of eligible employees who withdraw from the plan.
Options shall become effective each January 1 and each July 1 (each of which
dates hereinafter is referred to as "date of grant"). The term of each option is
six months ("the option period") ending June 30 and December 31 in each year
(each of which dates hereinafter is referred to as "date of exercise").
(b) ELECTION TO PARTICIPATE; PAYROLL DEDUCTION AUTHORIZATION. An
eligible employee may participate in the plan only by means of payroll
deduction. Each eligible employee who elects to participate in the plan shall
deliver to the Company, prior to the beginning of the payroll period from which
payroll deductions will be made for the option period commencing on such date of
grant, a payroll deduction authorization by a method or on a form acceptable to
the Company whereby notice is given of the employee's election to participate in
the plan as of the next following date of grant, and whereby the employee
designates a stated amount to be deducted from his or her compensation on each
pay day and paid into the plan for that employee's account. The total amount of
a participant's payroll deductions may not exceed either of the following: (i)
10% per option period of the amount of "eligible compensation" (as defined in
subparagraph (d)) from which the deduction is made, or (ii) an amount which will
result in noncompliance with either the $25,000 per calendar year or the maximum
number of shares per option period limitations stated in subparagraph (e).
An option under the plan shall be deemed to have been granted
automatically on the next following date of grant to each eligible employee who
delivers to the Company a payroll deduction authorization within the time and in
the form and manner stated in this subparagraph.
(c) CONTINUING GRANT OF OPTIONS; CHANGES IN OPTIONS. Each eligible
employee who is a participant in the plan automatically and without any act on
his or her part shall be continued as a participant in the plan as long as he or
she remains eligible or, as the case may be, until such employee withdraws from
the plan. An option under the plan shall be granted automatically on each date
of grant to each eligible employee who remains a participant in the plan.
Any eligible employee who is a participant in the plan may change the
extent of his or her participation by delivering to the Company prior to the
beginning of the payroll period from which payroll deductions will be made for
the option period commencing on such date of
3
<PAGE> 4
grant, an amended payroll deduction authorization by a method or on a form
acceptable to the Company which designates the change in the stated amount to be
deducted from his or her eligible compensation commencing on the next following
date of grant. After commencement of the option period, a participant in the
plan may decrease the extent of his or her participation to as low as 1%
effective at the beginning of any month during the option period by delivering
an amended payroll deduction authorization, by a method or on a form acceptable
to the Company, prior to the first payroll period of any such month.
(d) "ELIGIBLE COMPENSATION" DEFINED. The term "eligible compensation"
includes the following: regular earnings, overtime, sick pay, shift
differential, shift premium, vacation pay, incentive compensation, bonuses
subject to formal programs, variable pay subject to formal programs, call-in
pay, patent payments and holiday pay. Eligible compensation also includes any
amounts contributed to a plan qualifying under Sections 401(k), 125 and 129 of
the Code as salary reduction contributions as well as any amounts deferred under
the Beckman Coulter, Inc. Executive Deferred Compensation Plan and the Beckman
Coulter, Inc. Executive Restoration Plan. Any other form of compensation is
excluded from eligible compensation, including but not limited to the following:
prizes, awards, housing allowances, stock option exercises, stock appreciation
rights, restricted stock exercises, performance awards, auto allowances, loss of
company car, tuition reimbursement, article payments, tax reimbursement,
Christmas gift, special awards, non-recurring bonuses, move-related payments,
forms of imputed income, and Share Value Plan payments. The Organization and
Compensation Committee of the Board of Directors of the Company (the
"Committee") may include compensation components within the definition of
eligible compensation as it deems desirable.
(e) $25,000 AND MAXIMUM NUMBER OF SHARES LIMITATIONS. No employee shall
be permitted to purchase stock under the plan or under any other employee stock
purchase plan of the Company or of any of its subsidiaries or related
corporations at a rate which exceeds $25,000 in fair market value of stock
(determined at the time the option is granted) for each calendar year in which
any such option granted to such employee is outstanding at any time. In
addition, no employee shall be permitted to purchase in excess of 4,000 shares
per option period (subject to adjustment in accordance with paragraph 10). To
the extent payroll deductions are made which would result in a participant
exceeding either of these limitations, the Company shall refund to the
participant the excess amounts deducted promptly following such determination.
5. EXERCISE OF OPTIONS
(a) GENERAL STATEMENT. Each eligible employee who is a participant in
the plan automatically and without any act on his or her part will be deemed to
have exercised his or her option on each date of exercise to the extent that the
balance then in such employee's account under the plan is sufficient to purchase
at the "option price" (as defined in subparagraph (b)) whole and fractional
shares of the stock subject to the plan. Notwithstanding the above, if the total
number of shares purchasable pursuant to options granted in any option period
exceeds the number of shares available for issuance as determined under
paragraph 3 above, each participant's option shall be exercisable only for the
number of shares equal to his or her pro rata
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portion of the remaining number of shares so available. Such pro rata portion
shall be determined by multiplying the number of shares purchasable pursuant to
each participant's option by a fraction the numerator of which is the number of
shares remaining available for issuance and the denominator of which is the
number of shares purchasable pursuant to outstanding options issued in the
option period. Following such adjustment, the Company shall, at the Committee's
discretion, either refund to the participant any remaining balance in a
participant's account or carry any remaining balance forward in such account to
apply toward the purchase price of shares on the next date of exercise.
(b) "OPTION PRICE" DEFINED. The option price per share to be paid by
each optionee on each exercise of his or her option shall be a sum equal to 90%
of the fair market value of the stock subject to the plan on the date of
exercise or on the date of grant, whichever amount is lesser. Fair market value
of the stock on the date of exercise or, as the case may be, on the date of
grant shall be the official closing price of such stock on such date on the New
York Stock Exchange; and if no sale of the stock shall have been made on said
exchange on such date, then fair market value on such date shall be the official
closing price of the stock on said exchange on the next preceding date on which
there was a sale.
(c) DELIVERY OF SHARE CERTIFICATES. As soon as practicable following the
date of exercise, the Company will deliver a certificate issued in the
optionee's name with respect to which the option was exercised and for which the
option price has been paid. The Company will deliver such certificate to the
optionee; however, in the event the Company makes available an alternate
arrangement for delivery to a book entry service, the Committee in its
discretion may either require or permit the optionee to elect that such
certificate be delivered to such book entry service. No interest or right under
the plan shall be created by delivery of such certificate to a book entry
service. In the event the Company is required to obtain from any commission or
agency authority to issue any such certificate, the Company will seek to obtain
such authority. Inability of the Company to obtain from any such commission or
agency authority which counsel for the Company deems necessary for the lawful
issuance of any such certificate shall relieve the Company from liability to any
participant in the plan except to return to the participant the amount of the
balance in his or her account.
6. WITHDRAWAL FROM THE PLAN
(a) GENERAL STATEMENT. Any participant may withdraw from the plan at any
time during an option period or immediately following an exercise of an option.
A participant who wishes to withdraw from the plan must deliver to the Company a
notice of withdrawal by a method or on a form acceptable to the Company.
(b) WITHDRAWAL DURING AN OPTION PERIOD. For a participant withdrawing
during an option period, the Company, promptly following the time when the
notice of withdrawal is received, will refund to the participant the amount of
the balance in his or her account under the plan; and thereupon, automatically
and without any further act on the participant's part, such participant's
payroll deduction authorization, interest in the plan, and interest in his or
her option under the plan shall terminate.
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(c) WITHDRAWAL IMMEDIATELY FOLLOWING AN EXERCISE OF AN OPTION. For a
participant withdrawing immediately following an exercise of an option, and
before any payroll deductions have been made for the next following option
period, such participant's payroll deduction authorization and interest in the
plan shall terminate automatically and without any further act on the
participant's part and the participant shall be deemed to have withdrawn
effective on the date of grant following such exercise.
(d) WITHDRAWAL RESULTING FROM LOSS OF ELIGIBILITY. If a participant for
any reason becomes ineligible for participation in the plan, the participant
automatically and without any act on his or her part shall be deemed to have
withdrawn from the plan as of the date when he or she became ineligible to
participate. The Company promptly will refund to the participant the amount of
the balance of his or her account under the plan, and as of the date when the
participant became ineligible to participate, the participant's payroll
deduction authorization, interest in the plan, and interest in his or her option
under the plan shall terminate. A participant shall become ineligible at the
time when he or she no longer can comply with the requirements for eligibility
stated in paragraph 2 or any requirements imposed by applicable local law.
(e) LIMITATION UPON PARTICIPATION FOLLOWING WITHDRAWAL. A participant
who withdraws effective on a date of grant as stated in subparagraph (c) may
participate commencing on the next following date of grant, unless otherwise
ineligible or prohibited by operation of law, rule or regulation. In all other
instances, a participant who withdraws from the plan, either by his or her
election to withdraw as stated in subparagraph (b), or by loss of eligibility to
participate as stated in subparagraph (d), shall not be eligible for
participation in the plan for the option period next following the option period
during which he or she withdrew, or, if applicable, for any option period or
part of an option period during which a participant has been prohibited or
suspended from participation by operation of law, rule or regulation; but
thereafter if eligible he or she again may participate. The limitation stated in
this subparagraph (e) shall not be applicable in the case of a participant who
withdraws from the plan or becomes ineligible to participate in the plan by
reason of his or her entering the military service of the United States.
7. TERMINATION OF EMPLOYMENT
(a) TERMINATION OF EMPLOYMENT OTHER THAN BY RETIREMENT OR DEATH. If the
employment of a participant terminates other than by retirement or death, the
participant automatically and without any act on his or her part shall be deemed
to have withdrawn from the plan on the day following the effective date of
termination of his or her employment. The Company promptly will refund to the
participant the amount of the balance in his or her account under the plan, and
thereupon the participant's interest in the plan shall terminate.
(b) TERMINATION BY RETIREMENT. If, on or after the day that is three
months before the date of exercise, a participant retires or early retires (as
such terms are defined in the then current retirement plan for Company
employees), such participant may, at his or her election, by a method or on a
form acceptable to the Company, either (i) provide notice to the Company on or
before his or her retirement date of exercise of his or her outstanding option
in which event the Company shall retain the balance in such participant's
account during the then
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current option period and then apply the balance in such account under the plan
to purchase at the option price shares of the Company's stock, or (ii) provide
notice to the Company requesting payment of the balance in such account, in
which event the Company promptly shall make payment, and thereupon the
participant's interest in the plan and in his or her outstanding option under
the plan shall terminate. If the participant elects to exercise his or her
option, the date of exercise for the purpose of computing the amount of the
purchase price of the Company's stock shall be the end of the then current
option period.
If a participant retires prior to the day that is three months before
the date of exercise, the Company promptly will refund the amount in the
participant's account, and thereupon the participant's interest in the plan and
in his or her outstanding option under the plan shall terminate.
(c) TERMINATION BY DEATH. If the employment of a participant is
terminated by death, the Company promptly will pay the balance of the
participant's account under the plan to the person whom the participant has
named beneficiary to receive the benefits of the Company's basic group life
insurance plan, or to the participant's estate if he or she has not named any
such beneficiary, and thereupon the participant's interest in the plan and in
his or her option under the plan shall terminate.
8. RESTRICTION UPON ASSIGNMENT
An option granted under the plan shall not be transferable. An option
may not be exercised to any extent except by the optionee. The Company will not
recognize and shall be under no duty to recognize any assignment or purported
assignment by an optionee of his or her option or of any rights under his or her
option. (The effect of death upon the rights of an optionee is stated in
subparagraph 7(c)).
9. NO RIGHTS OF STOCKHOLDER UNTIL CERTIFICATE ISSUED
With respect to shares subject to an option, an optionee shall not be
deemed to be a stockholder of the Company and he or she shall not have any of
the rights or privileges of such a stockholder. An optionee shall have the
rights and privileges of a stockholder of the Company when, but not until, a
certificate for shares has been issued to the participant following exercise of
his or her option or recorded to the participant's account with a book entry
service.
10. CHANGES IN STOCK; ADJUSTMENTS
Whenever any change is made in the stock subject to the plan, or subject
to options outstanding under the plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, stock split, combination of
shares, exchange of shares, change in corporate structure, or otherwise),
appropriate action will be taken by the Board of Directors to adjust accordingly
the number of shares subject to the plan and the number and option price of
shares subject to options outstanding under the plan.
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<PAGE> 8
11. USE OF FUNDS; NO INTEREST PAID.
All funds received or held by the Company under the plan will be
included in the general funds of the Company and may be used for any corporate
purpose.
No interest will be paid to any participant or credited to his or her
account under the plan.
12. AMENDMENT OF THE PLAN.
The Board of Directors may amend or suspend the plan at any time and
from time to time subject to the limitation that approval by the vote of the
holders of more than 50 % of the outstanding shares of the Company entitled to
vote shall be required to amend the plan (i) to change the number of shares
reserved for option under the plan, (ii) to decrease the option price below a
price computed in the manner stated in subparagraph 5(b), or (iii) in any manner
which requires stockholder approval under any provision of law or under any
requirement of the stock exchange on which shares are then trading.
13. ADMINISTRATION BY COMMITTEE; RULES AND REGULATIONS
The plan shall be administered by the Committee (as such term is
previously defined), none of whom shall be eligible to participate in the plan.
The Committee shall have the power to make, amend, and repeal rules and
regulations and establish such procedures as it deems appropriate for the
interpretation and administration of the plan. The Committee may construe the
plan, correct defects, supply omissions and reconcile inconsistencies to the
extent necessary to effectuate the plan, provided that such does not conflict
with the plan, and such action shall be conclusive.
14. EFFECTIVE DATE; TERM; EARLY TERMINATION
The plan shall become effective July 1, 1989, and shall remain in force
until December 31, 2001, unless it is sooner terminated effective at the close
of business on June 30 or December 31 of any year by a resolution adopted by the
Company's Board of Directors pursuant to authority which hereby expressly is
reserved. Termination of the plan by action of the Board of Directors shall not
diminish the rights of any optionee nor impair the obligations of the Company
under any outstanding option; and the obligation of the Company to any
participant with respect to an outstanding option shall be the same as though he
or she had elected not to participate in the plan following the date as of which
it was terminated by action of the Board of Directors.
15. PLAN CONSTRUCTION.
It is the intent of the Company that transactions in and affecting
options in the case of participants who are or may be subject to the
prohibitions of Section 16 of the Securities and Exchange Act of 1934 ("SEC
Section 16") satisfy any then applicable requirements of 17 C.F.R. 240.16b-3
(hereinafter known as Rule 16b-3) so that such persons (unless they otherwise
8
<PAGE> 9
agree) will be entitled to the exemptive relief of Rule 16b-3 in respect of
those transactions and will not be subjected to avoidable liability thereunder.
Accordingly, this plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof shall be subject to, such
additional conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from SEC Section 16 with respect to plan
transactions. If any provision of this Plan or of any option would otherwise
frustrate or conflict with the intent expressed above, that provision to the
extent possible shall be interpreted as to avoid such conflict. If the conflict
remains irreconcilable, the Committee may disregard the provisions if it
concludes that to do so furthers the interest of the Company and is consistent
with the purposes of this plan as to such persons in the circumstances.
9
<PAGE> 1
EXHIBIT 5
[BECKMAN COULTER LETTERHEAD]
December 4, 1998
Beckman Coulter, Inc.
4300 North Harbor Boulevard
Fullerton, California 92834-3100
Re: Registration Statement on Form S-8 of
Beckman Coulter, Inc. (the "Company")
Ladies and Gentlemen:
At your request, I have examined the Registration Statement on Form S-8 to
be filed with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended, of 750,000 shares of
Common Stock, par value $0.10 per share, of the Company (the "Common Stock"),
and additional rights pursuant to the Company's Rights Agreement with First
Chicago Trust Company of New York, as rights agent (the "Rights, and together
with the Common Stock, the "Shares"), to be issued pursuant to the Beckman
Coulter, Inc. Employees' Stock Purchase Plan (the "Plan"). I have examined the
proceedings heretofore taken and to be taken in connection with the
authorization of the Plan and the Shares to be issued pursuant to and in
accordance with the Plan.
Based upon such examination and upon such matters of fact and law as I have
deemed relevant, I am of the opinion that the Shares have been duly authorized
by all necessary corporate action on the part of the Company and, when issued
in accordance with such authorization, the provisions of the Plan and relevant
agreements duly authorized by and in accordance with the terms of the Plan,
the Shares will be validly issued, and the Common Stock will be fully paid and
non-assessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement.
Respectfully submitted,
By: /s/ WILLIAM H. MAY
-------------------------------
William H. May
Vice President, General Counsel
and Secretary
- --------------------------------------------------------------------------------
Beckman Coulter, Inc. Corporate Headquarters Telephone: (714) 971-4848
William H. May 4300 N. Harbor Boulevard Facsimile: (714) 773-8283
Vice President, General P.O. Box 3100 E-mail: [email protected]
Counsel And Secretary Fullerton, CA 92834-3100
<PAGE> 1
EXHIBIT 15
[PEAT MARWICK LLP LETTERHEAD]
Beckman Coulter, Inc.
Fullerton, California
Ladies and Gentlemen:
Re: Registration Statement on Form S-8
With respect to the subject registration statement, we acknowledge our
awareness of the use therein of our reports dated April 17, 1998, July 17,
1998, and October 16, 1998, related to our reviews of interim financial
information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG PEAT MARWICK LLP
Orange County
December 16, 1998
<PAGE> 1
EXHIBIT 23.1
Independent Auditors' Consent
The Stockholders and Board of Directors
Beckman Coulter, Inc.:
We consent to the use of our audit report dated January 23, 1998, except as to
Note 16, which is as of March 4, 1998, on the consolidated balance sheets of
Beckman Coulter, Inc. and subsidiaries as of December 31, 1997 and 1996, and
the related consolidated statements of operations, stockholders' equity, and
cash flows for each of the years in the three-year period ended December 31,
1997, which report appears in the December 31, 1997 annual report on Form
10-K/A of Beckman Coulter, Inc., incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
Orange County, California
December 16, 1998
