<PAGE> 1
As filed with the Securities and Exchange Commission on December 18, 1998.
Registration No. ____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
BECKMAN COULTER, INC.
(Exact name of registrant as specified in its charter)
-------------------
Delaware 95-1040600
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4300 North Harbor Boulevard, Fullerton, CA 92834-3100
(Address of principal executive offices)
BECKMAN COULTER, INC. EXECUTIVE RESTORATION PLAN
(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
(Name and address of agent for service)
-------------------
Telephone number, including area code, of agent for service: (714) 871-4848
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation $1,000,000 100% $1,000,000(2) $278.00
Obligations(1)
- ----------------------------------------------------------------------------------------
</TABLE>
(1) The Deferred Compensation Obligations being registered are general
unsecured obligations of Beckman Coulter, Inc. to pay deferred
compensation in the future to participating members of a select group of
management or highly compensated employees in accordance with the terms
of the Beckman Coulter, Inc. Executive Restoration Plan.
(2) Estimated solely for the purpose of determining the registration fee.
The Exhibit Index included in this Registration Statement is at page 10.
<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 of 1933, as amended (the
"Securities Act"). Such documents need not be filed with the Securities and
Exchange 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.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT*
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Beckman Coulter, Inc. (the "Company") filed
with the Securities and Exchange Commission are incorporated herein by
reference:
(a) Annual Report on Form 10-K, as amended, for the Company's fiscal
year ended December 31, 1997;
(b) Quarterly Reports on Form 10-Q, as amended, for the Company's
Fiscal Quarter ended March 31, 1998, Form 10-Q for the Company's
fiscal quarter ended June 30, 1998, and Form 10-Q for the
Company's fiscal quarter ended September 30, 1998; and
(c) CurrentReports on Forms 8-K dated February 18, 1998, February
26, 1998 and June 25, 1998.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference into the prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained herein or in a document, all or a
portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or amended, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Beckman Coulter, Inc. Executive Restoration Plan (Amended and
Restated Effective as of September 1, 1998) (the "Plan") provides a select group
of management or highly compensated employees (the "Eligible Employees") of the
Company and certain of its subsidiaries with the opportunity to defer the
receipt of certain pre-tax cash compensation. The obligations of the Company
under the Plan (the "Deferred Compensation Obligations") will be general
unsecured obligations of the Company to pay deferred compensation in the future
to participating Eligible Employees (the "Participants") in accordance with the
terms of the Plan from the general assets of the Company, and will rank pari
passu with other unsecured and unsubordinated indebtedness of the Company from
time to time outstanding. The Deferred Compensation Obligations will be
denominated and payable in United States dollars.
Each Participant may elect to defer up to 15% of his or her salary and
bonus under a combination of the Plan and the Beckman Coulter, Inc. Savings Plan
(the "Savings Plan"). If a
3
<PAGE> 4
Participant's salary and bonus deferrals exceed the maximum contributions that
can be made to the Savings Plan (due to certain limitations imposed by the
Internal Revenue Code of 1986, as amended), such excess deferrals are credited
to a bookkeeping account ("Deferral Account") maintained for the Participant
under the Plan.
In addition, an amount equal to the Company matching contributions that
could not be allocated to a Participant under the Savings Plan (due to the
limitations described above) is credited to a separate bookkeeping account
("Matching Account") maintained in his or her name. The matching contributions
credited to a Participant's Matching Account are in the form of stock units
(i.e., a non-voting unit of measurement which is deemed for bookkeeping purposes
to be equivalent to one share of the Company's Common Stock).
Further, each Participant who is eligible for Retirement Plus
Contributions under the Savings Plan is credited with the amount of such
Retirement Plus Contributions that could not be allocated to the Participant
under the Savings Plan (due to the limitations described above). This amount is
credited in the form of stock units to a bookkeeping account ("Retirement Plus
Account").
Each Participant's Deferral Account is credited with a deemed rate of
earnings at a predetermined rate of interest. Each Participant's Matching
Account and, if applicable, Retirement Plus Account are credited on a periodic
basis with "Dividend Equivalents" representing dividends paid on the number of
shares which is equal to the number share units credited to those accounts.
These Dividend Equivalents are credited in the form of share units. While each
Participant's Matching Account balance and, if applicable, Retirement Plus
Account balance under the Plan increase or decrease based on the performance of
the Company's Common Stock, his or her account balances are not actually
invested in Common Stock.
Deferred Compensation Obligations will be paid in cash in a single lump
sum as soon as administratively practicable after the Participant's termination
from employment or retirement from the Company. The amount payable to a
Participant is equal to the sum of (1) the cash credited to the Participant's
Deferred Account and (2) the fair market value of a share of the Company's
Common Stock multiplied by the number of share units credited to the
Participant's Matching Account and, if applicable, Retirement Plus Account.
No amount payable under the Plan shall be subject to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, or charge,
voluntary or involuntary. Any attempt to dispose of any rights to benefits
payable under the Plan shall be void.
The Deferred Compensation Obligations are not subject to redemption, in
whole or in part, prior to the distribution date, except that Participants may
withdraw all or a portion of the value of their Plan accounts under certain
specified circumstances. However, the Company reserves the right to amend or
terminate the Plan at any time.
The total amount of the Deferred Compensation Obligations is not
determinable because the amount will vary depending upon the level of
participation by Eligible Employees and the amounts of their salaries and
bonuses. The duration of the Plan is indefinite (subject to the Company's
ability to terminate the Plan). The Deferred Compensation Obligations are not
convertible into another security of the Company. The Deferred Compensation
Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company. Each Participant
will be responsible for acting independently with respect to, among other
things, the giving of notices, responding to any requests for consents, waivers
or
4
<PAGE> 5
amendments pertaining to the Deferred Compensation Obligations, enforcing
covenants and taking action upon a default by the Company.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the original issuance of Deferred Compensation
Obligations registered hereby is passed on for the Company by William H. May,
Vice President, General Counsel and Secretary of the Company. Mr. May is
compensated as an employee of the Company, is the beneficial owner of the
Company's Common Stock, is the holder of options to acquire shares of the
Company's Common Stock, and is an Eligible Employee and entitled 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 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index on page 10.
5
<PAGE> 6
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of
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<PAGE> 7
expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
7
<PAGE> 8
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
--------- ----- ----
<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 and December 4, 1998
- ------------------------------- 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>
8
<PAGE> 9
<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>
9
<PAGE> 10
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 Beckman Coulter, Inc. Executive Restoration
Plan (Amended and Restated Effective as of
September 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 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").
10
<PAGE> 1
EXHIBIT 4.1
BECKMAN COULTER, INC.
EXECUTIVE RESTORATION PLAN
(AMENDED AND RESTATED EFFECTIVE AS OF SEPTEMBER 1, 1998)
<PAGE> 2
BECKMAN COULTER, INC.
EXECUTIVE RESTORATION PLAN
(AMENDED AND RESTATED EFFECTIVE AS OF SEPTEMBER 1, 1998)
TABLE OF CONTENTS
-----------------
ARTICLE I TITLE AND DEFINITIONS ..........................................2
1.1 Title...........................................................2
1.2 Definitions.....................................................2
ARTICLE II PARTICIPATION..................................................11
2.1 Participation..................................................11
ARTICLE III DEFERRAL ELECTIONS.............................................12
3.1 Elections to Defer Salary and/or Bonus.........................12
3.2 Coordination with 401(k) Plan Election.........................14
ARTICLE IV ACCOUNTS.......................................................15
4.1 Restoration Deferral Account...................................15
4.2 Restoration Matching Account...................................16
4.3 Retirement Plus Account........................................17
ARTICLE V VESTING........................................................19
5.1 Vesting........................................................19
ARTICLE VI DISTRIBUTIONS..................................................20
6.1 Distribution of Accounts.......................................20
6.2 Inability to Locate Participant................................20
6.3 Early and Hardship Distributions...............................21
6.4 Distributions on Death.........................................22
ARTICLE VII CLAIMS PROCEDURE AND ARBITRATION...............................23
7.1 Claims Procedure and Arbitration...............................23
ARTICLE VIII ADMINISTRATION.................................................26
8.1 Committee......................................................26
8.2 Committee Action...............................................26
8.3 Powers and Duties of the Committee.............................27
8.4 Interpretation of Plan.........................................28
8.5 Plan Construction..............................................29
8.6 Information....................................................30
8.7 Compensation, Expenses and Indemnity...........................30
ARTICLE IX MISCELLANEOUS..................................................31
9.1 Unsecured General Creditor.....................................31
9.2 No Employment Contract.........................................31
9.3 Adjustments in Case of Changes in Common Stock.................32
9.4 Restriction Against Assignment.................................32
9.5 Withholding....................................................33
9.6 Amendment, Modification, Suspension or Termination.............33
9.7 Governing Law..................................................34
9.8 Receipt or Release.............................................34
9.9 Payments on Behalf of Persons Under Incapacity.................34
9.10 Headings, etc. Not Part of Agreement...........................35
i
<PAGE> 3
BECKMAN COULTER, INC
EXECUTIVE RESTORATION PLAN
(Amended and Restated Effective as of September 1, 1998)
WHEREAS, Beckman Coulter, Inc., formerly Beckman Instruments, Inc., (the
"Company") maintains a tax-qualified profit-sharing plan which includes a
pre-tax 401(k) plan feature ("401(k) Plan"); and
WHEREAS, under the 401(k) Plan certain highly compensated employees are
prevented by the tax laws from making the full amount of contribution they
desire to make; and
WHEREAS, the Company originally established a deferred compensation plan
(the "Restoration Plan") to permit eligible employees to defer amounts they
cannot now defer under the 401(k) Plan; and
WHEREAS, it is desirable to amend and restate the Restoration Plan to
reflect the Company's acquisition of Coulter Corporation, the corporate name
change, and certain additional changes.
NOW, THEREFORE, effective September 1, 1998, the Restoration Plan is
amended and restated as follows:
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ARTICLE I
TITLE AND DEFINITIONS
1.1 TITLE
-----
This Plan shall be known as the "Beckman Coulter, Inc. Executive
Restoration Plan."
1.2 DEFINITIONS
-----------
Whenever the following words and phrases are used in this Plan, with the
first letter capitalized, they shall have the meanings specified below.
"Account" or "Accounts" shall mean a Participant's Restoration Deferral
Account, Restoration Matching Account and/or, if applicable, Retirement Plus
Account. The Committee may establish such additional accounts or subaccounts as
it deems necessary for the proper administration of the Plan.
"Beneficiary" or "Beneficiaries" shall mean the person or persons,
including a trustee, personal representative or other fiduciary, who have been
designated as or who are deemed to be the Participant's "Beneficiary" or
"Beneficiaries" under the 401(k) Plan and who shall receive the benefits
specified hereunder in the event of the Participant's death. Notwithstanding the
above, a Participant may designate or change such designation of his or her
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<PAGE> 5
Beneficiary or Beneficiaries for purposes of this Plan by filing, on a form
provided by the Committee and on such terms and conditions as the Committee may
prescribe, a Beneficiary designation. No such Beneficiary designation shall
become effective until it is filed with the Committee. Such Beneficiary
designation shall thereafter remain in effect with respect to this Plan until a
new Beneficiary designation is filed with the Committee pursuant to the terms
hereof. In the event any amount is payable under this Plan to a minor, payment
shall not be made to the minor, but instead shall be paid (i) to that person's
living parent(s) to act as custodian, (ii) if that person's parents are then
divorced, and one parent is the sole custodial parent, to such custodial parent,
or (iii) if no parent of that person is then living, to a custodian selected by
the Committee to hold the funds for the minor under the Uniform Transfers of
Gifts to Minors Act in effect in the jurisdiction in which the minor resides. If
no parent is living and the Committee decides not to select another custodian to
hold the funds for the minor, then payment shall be made to the duly appointed
and currently acting guardian of the estate for the minor or, if no guardian of
the estate for the minor is duly appointed and currently acting within 60 days
after the date the amount becomes payable, payment shall be deposited or made
with the court having jurisdiction over the estate of the minor.
"Board of Directors" or "Board" shall mean the Board of Directors of
Beckman Coulter, Inc.
"Bonus" shall mean any annual incentive compensation payable to a
Participant in accordance with the Executive or Management Incentive Plans (or
their successors) that is in
3
<PAGE> 6
addition to the Participant's Salary.
"Change in Control Event" shall mean the following and shall be deemed
to occur if any of the following events occur:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Exchange Act, other than an employee benefit plan of
Beckman Coulter, Inc. ("Beckman Coulter"), or a trustee or other
fiduciary holding securities under an employee benefit plan of Beckman
Coulter, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
Beckman Coulter representing 20% or more of the combined voting power of
Beckman Coulter's then outstanding voting securities, provided that, no
Change in Control Event shall be deemed to occur solely because a
corporation (the "seller") owns 20% or more of Beckman Coulter voting
securities if such ownership is only a transitory step in a
reorganization whereby Beckman Coulter purchases the assets of the
seller for Beckman Coulter voting securities and the seller liquidates
shortly thereafter;
(ii) individuals who, as of the date hereof, constitute the
Board of Beckman Coulter (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the date hereof whose election, or
nomination for election by Beckman Coulter's stockholders, was
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<PAGE> 7
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than an election or nomination of
an individual whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election of the
directors of Beckman Coulter, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) shall be considered
as though such person were a member of the Incumbent Board of Beckman
Coulter;
(iii) the stockholders of Beckman Coulter approve a merger or
consolidation with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of Beckman
Coulter outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of another entity) more than 80% of the combined voting power
of the voting securities of Beckman Coulter or such other entity
outstanding immediately after such merger or consolidation, or (B) a
merger or consolidation effected to implement a recapitalization of
Beckman Coulter (or similar transaction) in which no person acquires 20%
or more of the combined voting power of Beckman Coulter's then
outstanding voting securities; or
(iv) the stockholders of Beckman Coulter approve a plan of
complete liquidation of Beckman Coulter or an agreement for the sale or
disposition by Beckman Coulter of all or substantially all of Beckman
Coulter's assets.
Notwithstanding the preceding sentence, a Change in Control Event shall not be
deemed to have
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<PAGE> 8
occurred if the "person" described in the preceding sentence is an underwriting
syndicate which has acquired the ownership of 20% or more of the combined voting
power of Beckman Coulter's then outstanding voting securities solely in
connection with a public offering of Beckman Coulter's securities.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean the Organization and Compensation Committee of
the Board or its delegate(s) which administers this Plan in accordance with
Article VIII.
"Common Stock" shall mean the Common Stock of the Company, subject to
adjustment pursuant to Section 9.3.
"Company" shall mean Beckman Coulter, Inc., any successor corporation
and each corporation which is a member of a controlled group of corporations
(within the meaning of Section 414(b) of the Code) of which Beckman Coulter,
Inc. is a component member.
"Dividend Equivalent" shall mean the amount of cash dividends or other
cash distributions paid by the Company on that number of shares of Common Stock
which is equal to the number of Stock Units then credited to a Participant's
Restoration Matching Account and, if
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<PAGE> 9
applicable, a Participant's Retirement Plus Account, which amount shall be
allocated as additional Stock Units to such Participant's Restoration Matching
Account, as provided in Section 4.2(b) and, if applicable, to such Participant's
Retirement Plus Account, as provided in Section 4.3.
"Eligible Employee" shall mean an officer or other highly compensated
employee of the Company who has been selected by the Committee to participate in
this Plan. The Committee shall limit Eligible Employee status to a select group
of management or highly compensated employees, as set forth in Sections 201, 301
and 401 of ERISA.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Fair Market Value" shall mean: (1) the closing price of the Common
Stock on the New York Stock Exchange on the date for which the fair market value
is determined, or, if there is no trading of the Common Stock on such date, then
the closing price of the Common Stock on the New York Stock Exchange on the next
preceding date on which there was trading in such shares; (2) where so stated in
a provision of this Plan, the Common Stock price used in crediting
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<PAGE> 10
401(k) Plan accounts for a period; or (3) if the Common Stock is not listed,
admitted or quoted, the Committee may designate such other source of data as it
deems appropriate for determining such value for purposes of this Plan.
"401(k) Plan" means the Beckman Coulter, Inc. Savings Plan as it may be
amended from time to time.
"Interest Rate" shall mean, for each Plan Year, the prime rate of
interest established by Bank of America, NT&SA in effect as of the July 31
preceding the relevant Plan Year.
"Participant" shall mean any Eligible Employee who elects to defer a
portion of his or her Salary and Bonus in accordance with Section 3.1 and who
satisfies the participation requirements of Article II.
"Plan" shall mean the Beckman Coulter, Inc. Executive Restoration Plan
set forth herein, now in effect, or as amended from time to time. This Plan
constitutes an unfunded plan maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees, as set forth in Sections 201, 301 and 401 of ERISA.
"Plan Year" shall mean each 12 consecutive month period beginning on
January 1.
8
<PAGE> 11
"Restoration Deferral Account" shall mean the bookkeeping account
maintained by the Company on behalf of a Participant who elects to defer his or
her Salary and Bonus in cash under this Plan pursuant to Section 3.1.
"Restoration Matching Account" shall mean the bookkeeping account
maintained by the Company on behalf of each Participant pursuant to Section 4.2
to reflect the Participant's interest in the Plan attributable to the Company's
matching credits.
"Retirement Plus Account" shall mean the bookkeeping account maintained
by the Company pursuant to Section 4.3 on behalf of each Participant who is
eligible for contributions to the 401(k) Plan under the Retirement Plus
provisions of the 401(k) Plan.
"Salary" shall mean the Participant's "Plan Compensation" (as such term
is defined in the 401(k) Plan, but without regard to the limit under Section
401(a)(17) of the Code) prior to any deferrals under this Plan or any other
deferred compensation plan of the Company, except for any Bonus.
"Stock Unit" or "Unit" shall mean a non-voting unit of measurement which
is
9
<PAGE> 12
deemed for bookkeeping purposes to be equivalent to one outstanding share of
Common Stock of the Company solely for purposes of this Plan. The Units credited
to a Participant's Restoration Matching Account or Retirement Plus Account shall
be used solely as a device for the determination of the value of the
Participant's Restoration Matching Account or Retirement Plus Account, as the
case may be, to be eventually distributed in cash to such Participant in
accordance with this Plan. The value of a Unit will vary on any given date due
to the fluctuations in price of Common Stock. The Units shall not be treated as
property or as a trust fund of any kind. No Participant shall be entitled to any
voting or other stockholder rights with respect to Units granted or credited
under this Plan. The number of Units credited shall be subject to adjustment in
accordance with Section 9.3.
10
<PAGE> 13
ARTICLE II
PARTICIPATION
2.1 PARTICIPATION.
--------------
Participation in the Plan is voluntary. An Eligible Employee shall
become a Participant in this Plan by electing to defer a portion of his or her
Salary and Bonus in accordance with Article III. Notwithstanding anything else
contained herein to the contrary, an Eligible Employee shall be permitted to
defer a portion of his or her Salary and Bonus and to receive Company matching
credits and, if applicable, credits to a Retirement Plus Account under this Plan
during a particular Plan Year only after the Eligible Employee is prohibited
from making any additional elective deferrals to the 401(k) Plan during such
Plan Year because the elective deferrals (i) would exceed the amount specified
in Section 402(g) of the Code, (ii) would cause the 401(k) Plan to fail to
satisfy the limitation of Code Section 401(k)(3), or would increase the margin
by which the 401(k) Plan fails to satisfy the limitation of Code Section
401(k)(3), or (iii) would otherwise exceed the maximum elective deferrals
permitted under the terms of the 401(k) Plan.
11
<PAGE> 14
ARTICLE III
DEFERRAL ELECTIONS
3.1 ELECTIONS TO DEFER SALARY AND BONUS.
------------------------------------
(a) Deferral Elections. The Committee shall notify each Eligible
Employee of his or her eligibility to participate in the Plan; provided,
however, that an Eligible Employee's deferral of Salary and Bonus under this
Plan for any Plan Year may only commence after the Eligible Employee has
satisfied the participation requirement of Article II. An Eligible Employee's
elections to participate may be made by telephonic means in accordance with
rules and procedures established by the Committee. In addition, notwithstanding
anything else contained herein to the contrary, no Eligible Employee shall be
allowed to defer Salary and Bonus to the extent the Committee determines in its
discretion that such compensation should be withheld to pay the Eligible
Employee's portion of taxes under the Federal Insurance Contributions Act, any
state, federal or local income taxes, payments required to maintain coverage for
the Eligible Employee or the Eligible Employee's dependents under any welfare
plan or program of the Company, or any similar payment.
(b) Annual Election to Defer Salary and Bonus. To participate through
the deferral of Salary and Bonus for any Plan Year, an Eligible Employee must
file an election with the Committee no later than the date in the preceding Plan
Year determined by the Committee. Such date shall precede the first day of the
Plan Year during which the deferral election shall be effective for the deferral
of Salary. With respect to the deferral of any Bonus, such election shall apply
to the Eligible Employee's Bonus earned during the Plan Year in which such
election is made.
12
<PAGE> 15
(c) Election for Newly Hired Employee. An Eligible Employee whose
employment with the Company commences during a Plan Year may elect to
participate in the Plan during such Plan Year by filing a Salary and Bonus
deferral election with the Committee prior to the date in which he or she first
becomes eligible to participate in the 401(k) Plan. With respect to Salary
earned on or after this eligibility date, such deferral election shall become
effective with the next pay period following such eligibility date for which it
is administratively practical for participation to begin. In addition, such
deferral election shall apply to the deferral of any Bonus earned by the
Eligible Employee during the Plan Year in which such election is made.
(d) Method of Deferral. Each participation election shall specify the
portion of the Eligible Employee's Salary and Bonus that he or she elects to
defer. An election to defer Salary for a Plan Year shall apply to all Salary
earned during each pay period beginning in such Plan Year. An election to defer
a Bonus for a Plan Year shall apply to any Bonus paid with respect to services
performed during such Plan Year, even if payment would otherwise be made after
the close of such Plan Year, provided that such deferral election is made by the
applicable deadline described in the preceding subsections of this Section 3.1.
(e) Amount of Deferrals. For each Plan Year, an Eligible Employee shall
make a single election to defer his or her Salary and Bonus under the Plan.
Subject to the withholding requirements of Section 3.1(a) above, the amount of
Salary and Bonus which an Eligible Employee may elect to defer is any percentage
(in 1% increments) up to 15%.
13
<PAGE> 16
(f) Duration of Deferral Election. Any deferral election made under
paragraphs (b) or (c) shall remain in effect and, except as provided in
Subsection 3.1(g), be irrevocable, notwithstanding any change in the
Participant's Salary or Bonus, for the entire Plan Year for which it is
effective.
(g) Emergency Cessation of Deferrals. Notwithstanding anything else
contained herein to the contrary, a Participant may discontinue his or her
Salary and Bonus deferrals under the Plan at any time, provided that the
Participant also ceases to make any before-tax deferrals and after-tax
contributions under the 401(k) Plan and the Beckman Coulter, Inc. Executive
Deferred Compensation Plan. Such discontinuance of deferrals and after-tax
contributions, will remain in effect for the remainder of the current Plan Year
and the following Plan Year.
3.2 COORDINATION WITH 401(K) PLAN ELECTION.
---------------------------------------
A Participant's election under Section 3.1 shall specify the combined
total percentage of Salary and Bonus that the Participant elects to defer for
the relevant Plan Year on a pre-tax basis under this Plan and the 401(k) Plan.
Except as provided in Section 3.1(g), such election shall be irrevocable for the
Plan Year to which it relates. In addition, such election shall specify that the
amount deferred by the Participant shall first be contributed to the 401(k) Plan
and may be deferred under this Plan only to the extent that additional elective
deferrals by the Participant to the 401(k) Plan would exceed the limits
applicable to the 401(k) Plan described in Section 2.1 of the Plan.
14
<PAGE> 17
ARTICLE IV
ACCOUNTS
4.1 RESTORATION DEFERRAL ACCOUNT.
-----------------------------
The Committee shall establish and maintain a Restoration Deferral
Account for each Participant under the Plan. Notwithstanding anything else
contained herein to the contrary, the Committee and the administrator of the
401(k) Plan shall have full power and authority to determine whether amounts of
the Participant's Salary and Bonus that the Participant elected to be deferred
for a Plan Year will be (i) deferred under this Plan, (ii) deferred under the
401(k) Plan, or (iii) not deferred under either this Plan or the 401(k) Plan.
Subject to the requirements of Article II, a Participant's Restoration Deferral
Account shall be credited as follows:
(a) Initial Crediting of Salary to Restoration Deferral Account.
As soon as administratively practical after the submission of each pay
period report, the Plan's recordkeeper shall credit the Participant's
Restoration Deferral Account with an amount equal to the portion of
Salary deferred by the Participant during that pay period in accordance
with the Participant's election under Sections 3.1 and 3.2; that is, the
portion of the Participant's Salary that the Participant has elected to
be deferred and has been determined by the Committee to be deferred
under his or her Restoration Deferral Account.
(b) Initial Crediting of Bonus to Restoration Deferral Account.
As soon as administratively practical after submission of each pay
period report for the period in
15
<PAGE> 18
which the Bonus is paid, the Plan's recordkeeper shall credit the
Participant's Restoration Deferral Account with an amount equal to the
portion of the Bonus deferred under Sections 3.1 and 3.2; that is, the
portion of the Participant's Bonus that the Participant has elected to
be deferred and has been determined by the Committee to be deferred
under his or her Restoration Deferral Account.
(c) Crediting of Earnings. Interest is accrued daily at the
applicable Interest Rate based on the daily Account balance and credited
monthly to the Participant's Restoration Deferral Account. For purposes
of crediting earnings to such Account, the Interest Rate used may
fluctuate from Plan Year to Plan Year and the Interest Rate in effect in
a particular Plan Year shall apply to the Participant's entire Account
balance without regard to the Plan Year any portion of the Account
balance was deferred.
4.2 RESTORATION MATCHING ACCOUNT.
-----------------------------
The Committee shall establish and maintain a Restoration Matching
Account for each Participant under the Plan. Subject to the requirements of
Article II, a Participant's Restoration Matching Account shall be credited as
follows:
(a) Initial Crediting of Restoration Matching Account. As soon
as administratively practical after submission of each pay period
report, the Plan's recordkeeper shall credit each Participant's
Restoration Matching Account with the number of Units determined by
dividing (i) by (ii), where (i) is the additional amount that the
Company would have contributed to the Participant's Company Matching
Account
16
<PAGE> 19
under the 401(k) Plan for that pay period if the Participant had
not deferred the amount of compensation deferred under this Plan and
(ii) is the Fair Market Value of a Share of Common Stock based on the
price used to credit Company matching contributions under the 401(k)
Plan for that pay period.
(b) Dividend Equivalents Related to Restoration Matching
Account. As soon as administratively practical following any date on
which dividends are paid on Common Stock, a Participant's Restoration
Matching Account shall be credited with additional Units in an amount
equal to the amount of the Dividend Equivalents representing cash
dividends paid on that number of shares which is equal to the number of
Stock Units credited to the Participant's Restoration Matching Account
as of the record date established for the dividend payment, divided by
the Fair Market Value of a Share of Common Stock based on the price used
to credit such dividends under the 401(k) Plan.
4.3 RETIREMENT PLUS ACCOUNT.
------------------------
The Committee shall establish and maintain a Retirement Plus Account for
each Participant under the Plan who is eligible for a contribution to the 401(k)
Plan under the Retirement Plus provisions of the 401(k) Plan. Subject to the
requirements of Article II, a Participant's Retirement Plus Account shall be
credited as follows:
(a) Initial Crediting of Retirement Plus Account. As soon as
administratively practical following each quarter, the Plan's
recordkeeper shall credit each Participant's Retirement Plus Account
with a number of Units determined by dividing (i)
17
<PAGE> 20
by (ii), where (i) is the additional amount that the Company would have
contributed to the Participant's Retirement Plus Contributions Account
under the 401(k) for that quarter if the Participant had not deferred
the amount of Compensation deferred under this Plan for that quarter and
(ii) is the Fair Market Value of a share of Common Stock based on the
price used to credit Retirement Plus contributions under the 401(k) Plan
for that quarter.
(b) Dividend Equivalents Related to Retirement Plus Account.
Dividend equivalents related to Units in a Participant's Retirement Plus
Account shall be credited to such Account in the same manner as under
Section 4.2(b) above.
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<PAGE> 21
ARTICLE V
VESTING
5.1 VESTING.
--------
(a) Restoration Deferral Account. A Participant's Restoration Deferral
Account shall be 100% vested at all times.
(b) Restoration Matching Account. A Participant's Restoration Matching
Account shall be 100% vested at all times.
(c) Retirement Plus Account. A Participant's Retirement Plus Account
shall be 100% vested at all times.
19
<PAGE> 22
ARTICLE VI
DISTRIBUTIONS
6.1 DISTRIBUTION OF ACCOUNTS.
-------------------------
(a) Time of Distribution. Distribution of a Participant's Accounts under
the Plan shall be made as soon as administratively practical in the second month
following the month in which occurred his or her termination from employment for
any reason.
(b) Manner of Distribution. The amount to be paid to the Participant
shall be the entire amount credited to the Participant's Accounts. Amounts
credited to a Participant's Restoration Deferral Account as of the last day of
the month prior to the month in which the distribution is made shall be paid in
a cash lump sum. Stock Units credited to a Participant's Restoration Matching
Account and, if applicable, Retirement Plus Account shall be converted into an
equivalent amount of cash based on the Fair Market Value of a share of Common
Stock on the last trading date of the month immediately preceding the date that
the distribution is made to the Participant. Amounts credited to the
Participant's Restoration Matching Account and, if applicable, Retirement Plus
Account shall then be distributed in a cash lump sum.
6.2 INABILITY TO LOCATE PARTICIPANT.
--------------------------------
In the event that the Committee is unable to locate a Participant or
Beneficiary within two years following the date the Participant was to commence
receiving payment or delivery pursuant to Section 6.1, the entire amount
allocated to the Participant's Accounts shall be
20
<PAGE> 23
forfeited. If, after such forfeiture, the Participant or Beneficiary later
claims such benefit, such benefit shall be reinstated without interest, earnings
or further crediting of Dividend Equivalents, from the date of the forfeiture.
The distribution of such benefits shall thereafter be made in the manner
determined by the Committee.
6.3 EARLY AND HARDSHIP DISTRIBUTIONS.
---------------------------------
Notwithstanding anything in this Article VI, the Plan shall permit an
in-service early or hardship distribution as follows:
(a) Early Distribution. At any time, a Participant, at his or
her sole discretion, may withdraw up to 100% of the balance of his or
her Accounts subject to a 10% penalty of the amount withdrawn. The 10%
penalty shall be permanently and irrevocably forfeited. The Company
shall thereafter have no obligation to pay the forfeited amount.
(b) Hardship Distribution. A Participant may receive a hardship
distribution, from his or her Accounts, subject to the approval of the
Committee, if the Participant has a financial hardship. A financial
hardship exists if the Participant demonstrates to the satisfaction of
the Committee that he or she has suffered (i) a severe financial
hardship which is unforeseeable or (ii) a financial hardship as defined
in the 401(k) Plan, and that he or she does not have other assets
(excluding those assets which may be available under the 401(k) Plan and
the Beckman Coulter, Inc. Employees' Stock
21
<PAGE> 24
Purchase Plan), sufficient to satisfy the financial need created by the
hardship. The determination of whether a Participant has suffered a
hardship shall be made by the Committee in its sole discretion. A
hardship distribution, if made, shall be in an amount no greater than
the amount needed to satisfy the hardship (including amounts required to
satisfy applicable Federal and state tax withholding), as determined by
the Committee.
(c) For distributions under this Section 6.3, the Participant
shall designate on a withdrawal form provided by the Company from which
Account the distribution is to be made. Such distributions will be made
as soon as administratively practical following the Participant's
submission of a completed withdrawal form. Distributions under this
Section 6.3 do not result in suspension from participation in the Plan.
For purposes of determining the balance in the Participant's Accounts
under this Section 6.3, the Plan's recordkeeper shall value such
accounts on the date it processes the withdrawal form.
6.4 DISTRIBUTIONS ON DEATH.
-----------------------
In the event of the death of a Participant, the Participant's Accounts
shall be paid to the Participant's Beneficiary as soon as administratively
practical following the Participant's death.
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<PAGE> 25
ARTICLE VII
CLAIMS PROCEDURE AND ARBITRATION
7.1 CLAIMS PROCEDURE AND ARBITRATION.
---------------------------------
(a) The Committee shall establish a reasonable claims procedure
consistent with the requirements of ERISA. In the event of a claim for payment
under this Plan or any dispute regarding the interpretation of this Plan, the
Participant, or following the Participant's death, his or her Beneficiary
(collectively referred to in this section as "Claimant") shall be required to
submit such matter for review in accordance with the claims procedure
established by the Committee.
(b) If a Claimant has exhausted the claims procedure referred to in
subsection (a) and he or she is dissatisfied with the outcome, the Claimant may,
if he or she desires, submit any claim for payment under this Plan or any
dispute regarding the interpretation of this Plan to arbitration. This right to
select arbitration shall be solely that of the Claimant, and the Claimant may
decide whether or not to arbitrate in his or her discretion. The "right to
select arbitration" does not impose on the Claimant a requirement to submit a
dispute for arbitration. The Claimant may, in lieu of arbitration, bring an
action in appropriate civil court. The Claimant retains the right to select
arbitration, even if a civil action (including, without limitation, an action
for declaratory relief) is brought by the Company or any other fiduciary of this
Plan prior to the commencement of arbitration. If arbitration is selected by the
Claimant after a civil action concerning the Claimant's dispute has been brought
by a person other than the Claimant, the Company, and the Claimant shall take
such actions as are necessary or appropriate, including
23
<PAGE> 26
dismissal of the civil action, so that the arbitration can be timely heard. Once
arbitration is commenced, it may not be discontinued without the unanimous
consent of all parties to the arbitration. During the lifetime of the
Participant only he or she can use the arbitration procedure set forth in this
section.
(c) Any claim for arbitration may be submitted as follows: if the
Claimant disagrees with an interpretation of this Plan by the Company or any
fiduciary of this Plan, or disagrees with the calculation of his or her benefit
under this Plan, such claim may be filed in writing with an arbitrator of the
Claimant's choice who is selected by the method described in the next four
sentences. The first step of the selection shall consist of the Claimant
submitting in writing a list of five potential arbitrators to the Company. Each
of the five arbitrators must be either (i) a member of the National Academy of
Arbitrators located in the state of California or (ii) a retired California
Superior Court or Appellate Court judge. Within one week after receipt of the
list, the Company shall select one of the five arbitrators as the arbitrator of
the dispute in question. If the Company fails to select an arbitrator in a
timely manner, the Claimant then shall designate one of the five arbitrators as
the arbitrator of the dispute in question.
(d) The arbitration hearing shall be held within seven days (or as soon
thereafter as possible) after the selection of the arbitrator. No continuance of
said hearing shall be allowed without the mutual consent of the Claimant and the
Company. Absence from or nonparticipation at the hearing by any party shall not
prevent the issuance of an award. Hearing procedures that will expedite the
hearing may be ordered at the arbitrator's discretion, and the arbitrator may
close
24
<PAGE> 27
the hearing in his sole discretion when he or she decides he or she has heard
sufficient evidence to justify issuance of an award. The arbitrator shall apply
the same deferential standard of review to the decision rendered by the
Committee pursuant to the claims procedure referred to in Section 7.1(a) as
would be applied by a court of proper jurisdiction. Accordingly, the arbitrator
shall not apply a de novo standard of review in reviewing the decision reached
through the claims procedure but rather shall apply an arbitrary and capricious
standard of review.
(e) The arbitrator's award shall be rendered as expeditiously as
possible and in no event later than one week after the close of the hearing. In
the event the arbitrator finds that the Claimant is entitled to the benefits he
or she claimed, the arbitrator shall order the Company to pay or deliver such
benefits, in the amounts and at such time as the arbitrator determines. The
award of the arbitrator shall be final and binding on the parties. The Company
shall thereupon pay or deliver to the Claimant immediately the amount that the
arbitrator orders to be paid or delivered in the manner described in the award.
The award may be enforced in any appropriate court as soon as possible after its
rendition. If any action is brought to confirm the award, no appeal shall be
taken by any party from any decision rendered in such action.
(f) This subsection (f) shall apply only following the occurrence of a
Change in Control Event. If the arbitrator determines that the Claimant is
entitled to the claimed benefits, the arbitrator shall direct the Company to pay
to the Claimant, and Company agrees to pay to the Claimant in accordance with
such order, an amount equal to the Claimant's expenses in pursuing the claim,
including attorneys' fees.
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ARTICLE VIII
ADMINISTRATION
8.1 COMMITTEE.
----------
The Committee shall be appointed by, and serve at the pleasure of, the
Board of Directors. The number of members comprising the Committee shall be
determined by the Board which may from time to time vary the number of members.
A member of the Committee may resign by delivering a written notice of
resignation to the Board. The Board may remove any member by delivering a
certified copy of its resolution of removal to such member. Vacancies in the
membership of the Committee shall be filled promptly by the Board.
8.2 COMMITTEE ACTION.
-----------------
The Committee shall act at meetings by affirmative vote of a majority of
the members of the Committee. Any action permitted to be taken at a meeting may
be taken without a meeting if, prior to such action, a written consent to the
action is signed by all members of the Committee and such written consent is
filed with the minutes of the proceedings of the Committee. A member of the
Committee shall not vote or act upon any matter which relates solely to himself
or herself as a Participant. The chairman of the Committee (the "Chairman") or
any other member or members of the Committee designated by the Chairman may
execute any certificate or other written direction on behalf of the Committee.
26
<PAGE> 29
8.3 POWERS AND DUTIES OF THE COMMITTEE.
-----------------------------------
Subject to Section 8.4, the Committee, on behalf of the Participants and
their Beneficiaries, shall enforce this Plan in accordance with its terms, shall
be charged with the general administration of this Plan, and shall have all
powers necessary to accomplish its purposes, including, but not by way of
limitation, the following:
(a) To construe and interpret the terms and provisions of this
Plan;
(b) To compute and certify to the amount and kind of benefits
payable or deliverable to Participants and their Beneficiaries;
(c) To maintain all records that may be necessary for the
administration of this Plan;
(d) To provide for the disclosure of all information and the
filing or provision of all reports and statements to Participants,
Beneficiaries or governmental agencies as shall be required by law;
27
<PAGE> 30
(e) To make and publish such rules for the regulation of this
Plan and procedures for the administration of this Plan as are not
inconsistent with the terms hereof; and
(f) To appoint a plan administrator or any other agent, and to
delegate to them such powers and duties in connection with the
administration of this Plan as the Committee may from time to time
prescribe.
8.4 INTERPRETATION OF PLAN
----------------------
Prior to the occurrence of a Change in Control Event, the Committee
shall have full discretion to construe and interpret the terms and provisions of
this Plan, which interpretation or construction shall be final and binding on
all parties, including but not limited to the Company and any Participant or
Beneficiary. The Committee shall administer such terms and provisions in a
uniform and nondiscriminatory manner and in full accordance with any and all
laws applicable to this Plan. Notwithstanding the foregoing, following the
occurrence of a Change in Control Event, no deference shall be given to the
Committee's construction or interpretation of the Plan and any such construction
or interpretation shall be reviewed under a de novo standard of review.
In making any determination or in taking or not taking any action under
this Plan, the Committee or the Board, as the case may be, may obtain and may
rely upon the advice of experts, including professional advisors to the Company.
No director, officer or agent of the
28
<PAGE> 31
Company shall be liable for any such action or determination taken or made or
omitted in good faith.
8.5 PLAN CONSTRUCTION.
------------------
(a) Rule 16b-3. It is the intent of the Company that transactions in and
affecting securities issued hereunder in the case of Participants who are or may
be subject to Section 16 of the Exchange Act satisfy any then applicable
requirements of Rule 16b-3 so that such persons (unless they otherwise agree)
will be entitled to the benefits of Rule 16b-3 or other exemptive rules under
Section 16 of the Exchange Act in respect of those transactions and will not be
subjected to avoidable liability thereunder. If any provision of this Plan would
otherwise frustrate or conflict with the intent expressed above, that provision
to the extent possible shall be interpreted as to avoid such conflict.
(b) Treasury Regulation Section 1.401(k)-1(e) (6). It is further the
intent of the Company that a Participant's deferrals of Salary, Bonus and
matching contributions under the Plan shall not be considered conditioned on the
Participant's participation in the 401(k) Plan in accordance with Treasury
Regulation Section 1.401(k)-1(e)(6)(iv), and this Plan shall be interpreted
consistent with such intent.
29
<PAGE> 32
8.6 INFORMATION.
------------
To enable the Committee to perform its functions, the Company shall,
upon request of the Committee, supply full and timely information to the
Committee on all matters relating to the Salary and Bonus of all Participants,
their death, or other cause of termination, and such other pertinent facts as
the Committee may require.
8.7 COMPENSATION, EXPENSES AND INDEMNITY.
-------------------------------------
(a) The Committee is authorized at the expense of the Company to employ
such legal counsel and administrative services as it may deem advisable to
assist in the performance of its duties hereunder. Expenses and fees in
connection with the administration of this Plan shall be paid by the Company.
(b) To the extent permitted by applicable state law, the Company shall
indemnify and save harmless the Committee and each member thereof, the Board of
Directors and any delegate of the Committee who is an employee of the Company
against any and all expenses, liabilities and claims, including legal fees to
defend against such liabilities and claims arising out of their discharge in
good faith of responsibilities under or incident to this Plan, other than
expenses and liabilities arising out of willful misconduct. This indemnity shall
not preclude such further indemnities as may be available under insurance
purchased by the Company or provided by the Company under any bylaw, agreement
or otherwise, as such indemnities are permitted under state law.
30
<PAGE> 33
ARTICLE IX
MISCELLANEOUS
9.1 UNSECURED GENERAL CREDITOR.
---------------------------
Participants and their Beneficiaries, heirs, successors, and assigns
shall have no legal or equitable rights, claims, or interest in any specific
property or assets of the Company. No assets of the Company shall be held under
any trust (other than a grantor trust within the meaning of Section 671, et.
seq. of the Code), or held in any way as collateral security for the fulfilling
of the obligations of the Company under this Plan. Any and all of the Company's
assets shall be, and remain, the general unpledged, unrestricted assets of the
Company. The Company's obligation under this Plan shall be merely that of an
unfunded and unsecured promise of the Company to pay money in the future, and
the rights of the Participants and Beneficiaries shall be no greater than those
of unsecured general creditors.
9.2 NO EMPLOYMENT CONTRACT.
-----------------------
Nothing contained in this Plan (or in any other documents related to
this Plan) shall confer upon any Eligible Employee or other Participant any
right to continue in the employ or other service of the Company or constitute
any contract or agreement of employment or other service, nor shall interfere in
any way with the right of the Company to change such person's compensation or
other benefits or to terminate the employment of such person, with or without
cause.
31
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9.3 ADJUSTMENTS IN CASE OF CHANGES IN COMMON STOCK.
-----------------------------------------------
If any stock dividend, stock split, recapitalization, merger,
consolidation, combination or other reorganization, exchange of shares, sale of
all or substantially all of the assets of the Company, split-up, split-off,
spin-off, extraordinary redemption, liquidation or similar change in
capitalization or any distribution to holders of the Common Stock (other than
cash dividends and cash distributions) shall occur, proportionate and equitable
adjustments consistent with the effect of such event of stockholders generally
(but without duplication of benefits if Dividend Equivalents are credited) shall
be made in respect of Units and Accounts credited under this Plan so as to
preserve the benefits intended.
9.4 RESTRICTION AGAINST ASSIGNMENT.
-------------------------------
The Company shall pay all amounts payable hereunder only to the person
or persons designated by this Plan and not to any other person or corporation.
No part of a Participant's Accounts shall be liable for the debts, contracts, or
engagements of any Participant, his or her Beneficiary, or successors in
interest, nor shall a Participant's Accounts be subject to execution by levy,
attachment, or garnishment or by any other legal or equitable proceeding, nor
shall any such person have any right to alienate, anticipate, commute, pledge,
encumber, or assign any benefits or payments hereunder in any manner whatsoever.
If any Participant, Beneficiary or successor in
32
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interest is adjudicated bankrupt or purports to anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge any distribution or payment from
this Plan, voluntarily or involuntarily, the Committee, in its discretion, may
cancel such distribution or payment (or any part thereof) to or for the benefit
of such Participant, Beneficiary or successor in interest in such manner as the
Committee shall direct.
9.5 WITHHOLDING.
------------
The Company shall satisfy any state or federal income or other tax
withholding obligation arising upon distribution of a Participant's Accounts.
The Participant shall pay or provide for payment in cash of the amount of any
taxes which the Company may be required to withhold with respect to the benefits
hereunder.
9.6 AMENDMENT, MODIFICATION, SUSPENSION OR TERMINATION.
---------------------------------------------------
The Company may amend, modify, suspend or terminate this Plan in whole
or in part and the Committee may amend or modify this Plan in whole or in part,
except that (i) no amendment, modification, suspension or termination shall have
any retroactive effect to reduce any amounts allocated to Participants'
Accounts, (ii) Sections 4.1(c), 4.2(b) and 4.3(b) may not be amended, modified
or suspended so as to, with respect to any amounts credited to the Accounts as
of the date of such amendment, reduce the amount of earnings or Dividend
Equivalents to be credited to Participants' Accounts in accordance with Sections
4.1(c), 4.2(b) and 4.3(b), respectively, and (iii) Section 7.1 may not be
amended with respect to any Participant or Beneficiary following the date the
Participant or Beneficiary makes a claim for benefits under this Plan. In the
event that this Plan is terminated, the amounts credited to a Participant's
Accounts shall be distributed to the Participant or, in the event of his or her
death, his or her Beneficiary in a lump sum within ninety (90) days following
the date of Plan termination.
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<PAGE> 36
9.7 GOVERNING LAW.
--------------
Except to the extent preempted by ERISA or other applicable federal law,
this Plan shall be construed, governed and administered in accordance with the
laws of the State of California.
9.8 RECEIPT OR RELEASE.
-------------------
Any payment to a Participant or the Participant's Beneficiary in
accordance with the provisions of this Plan shall, to the extent thereof, be in
full satisfaction of all claims against the Committee and the Company. The
Committee may require such Participant or Beneficiary, as a condition precedent
to such payment or delivery, to execute a receipt and release to such effect.
9.9 PAYMENTS ON BEHALF OF PERSONS UNDER INCAPACITY.
-----------------------------------------------
In the event that any amount becomes payable to a person who, in the
sole judgement of the Committee, is considered by reason of physical or mental
condition to be unable to give a valid receipt therefore, the Committee may
direct that such payment be made to any person found by the Committee, in its
sole judgement, to have assumed the care of such person. Any payment or delivery
made pursuant to such determination shall constitute a full release and
discharge of the Committee and the Company.
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9.10 HEADINGS, ETC. NOT PART OF AGREEMENT.
-------------------------------------
Headings and subheadings in this Plan are inserted for convenience of
reference only and are not to be considered in the construction of the
provisions hereof.
35
<PAGE> 38
IN WITNESS WHEREOF, the Company has caused this document to be executed
by its duly authorized officer on this 28th day of October, 1998.
Beckman Coulter, Inc.
By: /s/ FIDENCIO M. MARES
--------------------------------------
Print Name: Fidencio M. Mares
Its: Vice President, Human Resources
36
<PAGE> 1
EXHIBIT 5
[Beckman Coulter Logo]
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 $1,000,000 of
Deferred Compensation Obligations of the Company (the "Obligations") to be
issued pursuant to the Beckman Coulter, Inc. Executive Restoration Plan (the
"Plan"). I have examined the proceedings heretofore taken and to be taken in
connection with the authorization of the Plan and the Obligations 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 Obligations 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 Obligations will be validly issued, legally binding obligations of
the Company.
I consent to the use of this opinion as an exhibit to the Registration
Statement.
Respectfully submitted,
/s/ WILLIAM H. MAY
----------------------------------------
William H. May
Vice President, General
Counsel and Secretary
<TABLE>
<CAPTION>
<S> <C> <C>
- ------------------------------------------------------------------------------------------
Beckman Coulter, Inc. Corporate Headquarters Telephone: (714) 871-4848
William H. May 4300 N. Harbor Boulevard Facsimile: (714) 773-8283
Vice President, General Counsel P.O. Box 3100 E-mail: [email protected]
And Secretary Fullerton, CA 92834-3100
</TABLE>
<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
