<PAGE> 1
As filed with the Securities and Exchange Commission on February ____, 1999.
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, California
92834-3100 (Address of principal executive offices)
BECKMAN COULTER, INC. SAVINGS 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>
Common Stock, par 2,000,000(1)(2) $49.46875(3) $98,937,500.00(3) $27,504.63(3)
value $.10 per share shares
Interests in the Plan -- -- -- --
- -------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above, 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, and interests in the Beckman
Coulter, Inc. Savings Plan (the "Plan") which by reason of certain events
specified in 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 February 5, 1999, 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 7.
<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.
2
<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, as amended, of Beckman
Instruments, Inc. relating to the Plan (formerly the Beckman
Instruments, Inc. Savings and Investment Plan) filed with the
Commission on September 1, 1992 (registration number 33-51506).
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") 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 7.
3
<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 February 4, 1999.
BECKMAN COULTER, INC.
By: /s/ JOHN P. WAREHAM
------------------------------------------
John P. Wareham
Its: Chairman, President and Chief Executive
Officer
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/ JOHN P. WAREHAM Chairman, President and Chief February 4, 1999
- ------------------------ Executive Officer
John P. Wareham (Principal Executive Officer)
/s/ DENNIS K. WILSON Vice President, Finance & Chief February 4, 1999
- ------------------------ Financial Officer
Dennis K. Wilson (Principal Financial Officer)
/s/ JAMES T. GLOVER Vice President and Controller February 4, 1999
- ------------------------ (Controller)
James T. Glover
</TABLE>
4
<PAGE> 5
<TABLE>
<S> <C> <C>
/s/ HUGH K. COBLE Director February 4, 1999
- ------------------------
Hugh K. Coble
/s/ CAROLYNE K. DAVIS Director February 4, 1999
- ------------------------
Carolyne K. Davis
/s/ PETER B. DERVAN Director February 4, 1999
- ------------------------
Peter B. Dervan
/s/ RONALD W. DOLLENS Director February 4, 1999
- ------------------------
Ronald W. Dollens
/s/ CHARLES A. HAGGERTY Director February 4, 1999
- ------------------------
Charles A. Haggerty
/s/ GAVIN S. HERBERT Director February 4, 1999
- ------------------------
Gavin S. Herbert
/s/ VAN B. HONEYCUTT Director February 4, 1999
- ------------------------
Van B. Honeycutt
/s/ WILLIAM N. KELLEY Director February 4, 1999
- ------------------------
William N. Kelley
/s/ C. RODERICK O'NEIL Director February 4, 1999
- ------------------------
C. Roderick O'Neil
/s/ BETTY WOODS Director February 4, 1999
- ------------------------
Betty Woods
</TABLE>
5
<PAGE> 6
SIGNATURES
THE PLAN. Pursuant to the requirements of the Securities Act, the
Plan has 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 February 4, 1999.
BECKMAN COULTER, INC. SAVINGS PLAN
By: The Beckman Coulter, Inc. Benefits
Committee
By: /s/ FIDENCIO M. MARES
-------------------------------------
Fidencio M. Mares
Its: Chairman
------------------------------------
6
<PAGE> 7
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 Beckman Coulter, Inc. Savings Plan (Amended and Restated as of
September 1, 1998).
4.2 Agreement of Trust, dated as of August 26, 1998, between Beckman
Coulter, Inc. and T. Rowe Price Trust Company.
4.3 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.
4.4 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.
4.5 Rights Agreement, dated as of February 4, 1999, between Beckman
Coulter, Inc. and First Chicago Trust Company of New York, as Rights
Agent, filed as Exhibit 4 to Beckman Coulter, Inc.'s Form 8-K dated
February 8, 1999, and incorporated herein by this reference.
5.1 Opinion of Company Counsel (opinion re legality).
5.2 Opinion of O'Melveny & Myers LLP (ERISA Opinion).
15. KPMG LLP Letter Regarding Unaudited Financial Information.
23.1 Consent of KPMG LLP (consent of independent auditors).
23.2 Consent of Company Counsel (included in Exhibits 5.1 and 5.2).
24. Power of Attorney (included in this Registration Statement under
"Signatures").
7
<PAGE> 1
EXHIBIT 4.1
BECKMAN COULTER, INC.
SAVINGS PLAN
(Amended and Restated as of September 1, 1998)
<PAGE> 2
<TABLE>
<S> <C> <C>
ARTICLE I - TITLE AND DEFINITIONS
1.1 Title........................................................................3
1.2 Definitions..................................................................3
ARTICLE II - PARTICIPATION
2.1 Eligibility Requirements....................................................19
2.2 Participation...............................................................19
2.3 Reemployment................................................................20
2.4 Designation of Beneficiary..................................................20
ARTICLE III - CONTRIBUTIONS
3.1 Before-Tax Savings Contributions............................................22
3.2 After-Tax Savings Contributions.............................................31
3.3 Company Matching Contributions..............................................33
3.4 Section 401(m) Limitations on After-Tax Savings Contributions and
Company Matching Contributions..............................................34
3.5 Change in Percentage or Discontinuance of Contributions; Committee Rules....39
3.6 Rollover Contributions......................................................41
3.7 Investment of Accounts......................................................42
3.8 Valuation of Accounts.......................................................45
3.9 Notification of Participants................................................47
ARTICLE IV - LIMITATION ON ANNUAL ADDITIONS
4.1 Section 415 Limitations.....................................................48
ARTICLE V - VESTING
5.1 Fully Vested Accounts.......................................................49
5.2 Company Matching Account....................................................49
ARTICLE VI - DISTRIBUTIONS
6.1 After-Tax Savings Account Withdrawal........................................51
6.2 Non-Hardship Withdrawal.....................................................51
6.3 Rollover Account Withdrawal.................................................52
6.4 Hardship Withdrawal.........................................................53
6.5 Age 59-1/2 Withdrawal.......................................................55
6.6 Termination Withdrawal......................................................56
6.7 Withdrawal Due to Death.....................................................58
6.8 Special Rules For Withdrawals...............................................59
6.9 Inability to Locate Participant.............................................60
6.10 Limitations on Distributions................................................60
6.11 Qualified Domestic Relations Orders.........................................62
6.12 Direct Rollovers............................................................62
ARTICLE VII - THE COMMITTEE
7.1 Members.....................................................................65
7.2 Committee Action............................................................65
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
7.3 Rights and Duties...........................................................66
7.4 Procedure for Establishing Funding Policy, Transmittal of
Information.................................................................71
7.5 Other Information...........................................................72
7.6 Compensation, Bonding, Indemnity and Liability..............................72
7.7 Manner of Administering.....................................................73
7.8 Duty of Care................................................................74
7.9 Section 404(c) Provisions...................................................74
ARTICLE VIII - AMENDMENT AND TERMINATION
8.1 Amendments..................................................................76
8.2 Discontinuance of Plan......................................................77
8.3 Failure to Contribute.......................................................78
8.4 Merger or Consolidation.....................................................78
ARTICLE IX - MISCELLANEOUS
9.1 Contributions Not Recoverable...............................................80
9.2 Limitation on Participant's Rights..........................................81
9.3 Receipt or Release..........................................................81
9.4 Alienation..................................................................81
9.5 Governing Law...............................................................82
9.6 Headings, etc. Not Part of Plan.............................................83
9.7 Masculine Gender Includes Feminine and Neuter...............................83
9.8 Instruments in Counterparts.................................................83
9.9 Successors and Assigns......................................................83
9.10 Top-Heavy Plan Requirements.................................................84
9.11 Loans to Participants.......................................................84
9.12 Rule 16b-3 Provisions.......................................................89
</TABLE>
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
<PAGE> 4
BECKMAN COULTER, INC.
SAVINGS PLAN
Beckman Coulter, Inc., a Delaware corporation, (formerly "Beckman
Instruments, Inc." and referred to herein as the "Company") maintains the
Beckman Coulter, Inc. Savings Plan (formerly known as the "Beckman Instruments,
Inc. Savings and Investment Plan" and referred to herein as the "Plan"). The
Plan was first adopted as of August 1, 1989. The Plan is hereby amended and
restated in its entirety, effective as of September 1, 1998 (the "Merger Date"),
except as may otherwise be provided herein.
The Company established and maintains the Plan to provide incentives
for its Employees. The Trust created pursuant to the Plan (incorporated herein
by this reference) and its assets shall not be used for, or diverted to,
purposes other than the exclusive benefit of Participants or their
Beneficiaries, as prescribed in Section 401(a) of the Internal Revenue Code of
1986, as amended (the "Code").
Following the Company's acquisition of Coulter Corporation on or
about October 31, 1997, the Company also maintained the Coulter Corporation
Savings Incentive and Retirement Plus Plan (the "Coulter Plan"). The assets and
liabilities of the Coulter Plan were transferred to the Plan as of the Merger
Date. To the extent set forth in the Plan, service credited under the Coulter
Plan will be credited under the Plan.
The provisions of the Plan which cover Puerto Rico Participants (as
defined herein) are intended to constitute a qualified plan under Section 165 of
the Puerto Rico Income Tax Act of 1954 (as amended).
It is also intended that the Plan constitute an accident and health
plan so that amounts distributed on account of disability may be, if so provided
by law, excluded from income under Section 105(c) of the Internal Revenue Code
and Section 22(b)(5) of the Puerto Rico Income Tax Act.
<PAGE> 5
ARTICLE I
TITLE AND DEFINITIONS
1.1 - TITLE.
The Plan is intended to be a profit sharing plan and shall be known
as the Beckman Coulter, Inc. Savings Plan. Contributions may be made to the Plan
without regard to the current or accumulated profits of the Company. In the
event that a Participating Affiliate which employs a Puerto Rico Participant
does not have current or accumulated profits, no contribution shall be made on
behalf of the employees of such Participating Affiliate, unless the laws of
Puerto Rico provide otherwise.
1.2 - DEFINITIONS.
Whenever the following terms are used in the Plan, with the first
letter capitalized, they shall have the meanings specified below.
"ACCOUNT" or "ACCOUNTS" shall mean the accounts maintained by the
Committee for each Participant that are credited with the amounts provided for
herein. The following "Accounts" are maintained under the Plan: After-Tax
Savings Accounts, Before-Tax Savings Accounts, Company Matching Accounts and
Rollover Accounts, and any Accounts provided for in the Appendices hereto.
"AFTER-TAX SAVINGS ACCOUNT" shall mean the Account maintained for
each Participant that is credited with After-Tax Savings Contributions to the
Plan in accordance with Section 3.2 on behalf of such Participant, together with
the allocations thereto as required by the Plan.
"AFTER-TAX SAVINGS CONTRIBUTIONS" shall mean an amount that a
Participant elects to have deducted from his wages and contributed to the
Participant's After-Tax Savings Account, after income taxes have been withheld
on such amounts. After-Tax Savings Contributions shall be made by payroll
deduction in accordance with arrangements between each Participant and the
Company. Section 3.2 contains the provisions under which After-Tax Savings
Contributions may be made.
"ANNUAL BONUS" or "ANNUAL BONUSES" shall mean the portion of Plan
Compensation paid by the Company as variable compensation on an annual basis
under a formal program maintained by the Company. Annual Bonus includes, but is
not limited to, payments under the Company's executive and management incentive
and performance sharing programs.
2
<PAGE> 6
"APPROVED ABSENCE" shall mean a leave of absence granted to an
Employee under the Company's established leave policy.
"BEFORE-TAX SAVINGS ACCOUNT" shall mean the Account maintained for
each Participant that is credited with Company payments to the Plan attributable
to the Participant's Before-Tax Savings Contributions in accordance with Section
3.1, together with the allocations thereto as required by the Plan.
"BEFORE-TAX SAVINGS CONTRIBUTIONS" shall mean an amount contributed
to the Plan by the Company in lieu of being paid to a Participant as salary or
wages. Before-Tax Savings Contributions shall be made under salary reduction
arrangements between each Participant and the Company with respect to salary or
wages not yet paid or otherwise available to the Participant as of the date of
the Participant's election under the arrangement. Section 3.1 contains the
provisions under which Before-Tax Savings Contributions may be made.
"BENEFICIARY" or "BENEFICIARIES" shall mean the person or persons,
including a trustee, personal representative or other fiduciary, last designated
in writing by a Participant in accordance with the provisions of Section 2.4 to
receive the benefits specified hereunder in the event of the Participant's
death. If a Participant did not validly designate a Beneficiary in the Plan, but
validly designated a Beneficiary under the SmithKline Beckman Savings and
Investment Plan prior to the date of Disaffiliation or validly designated a
beneficiary under the Coulter Plan, then the most recent such designation shall
be considered the designation of a Beneficiary under the Plan. If there is no
validly designated Beneficiary or surviving validly designated Beneficiary, then
the Participant's spouse shall be the Beneficiary. If there is no surviving
spouse to receive any benefits payable in accordance with the preceding
sentence, the duly appointed and currently acting personal representative of the
Participant's estate (which shall include either the Participant's probate
estate or living trust) shall be the Beneficiary. If there is no personal
representative of the Participant's estate duly appointed and acting in that
capacity within 90 days after the Participant's death (or such extended period
as the Committee determines is reasonably necessary to allow such personal
representative to be appointed, but not to exceed 180 days after the
Participant's death), then Beneficiary or Beneficiaries shall mean the person or
persons who can verify by affidavit or court order to the satisfaction of the
Committee that they are legally entitled to receive the benefits specified
hereunder.
In the event any amount is payable under the Plan to a minor,
payment shall not be made to the minor, but instead shall be paid to (i) that
person's then living natural or adoptive parent(s) to act as custodian, (ii) if
that person's natural or adoptive parents are divorced, and one such parent is
the sole custodial parent, to such custodial natural or adoptive parent, or,
(iii) if no natural or adoptive 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 or Gifts to Minors Act in effect in the jurisdiction in which
the minor resides. If no natural or adoptive 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
3
<PAGE> 7
after the date the amount becomes payable, payment shall be deposited with the
court having jurisdiction over the estate of the minor.
In the event any amount is payable under the Plan to a person for
whom a conservator has been legally appointed, the payment shall be distributed
to the duly appointed and currently acting conservator, without any duty on the
part of the Committee to supervise or inquire into the application of any funds
so paid.
"BOARD OF DIRECTORS" and "BOARD" shall mean the Board of Directors
of Beckman Coulter, Inc.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITTEE" shall mean the Benefits Committee of the Company.
"COMPANY" shall mean Beckman Coulter, Inc., a Delaware corporation
(formerly "Beckman Instruments, Inc."), any predecessor corporation, or any
successor corporation resulting from merger, consolidation, or transfer of
assets substantially as a whole which shall expressly agree in writing to
continue the Plan and, where the context so warrants, any Participating
Affiliate.
"COMPANY MATCHING ACCOUNT" shall mean the Account maintained for a
Participant that is credited with payments to the Plan by the Company and any
Participating Affiliate in accordance with Section 3.3 on behalf of such
Participant, together with the allocations thereto as required by the Plan.
"COMPANY MATCHING CONTRIBUTIONS" shall mean an amount contributed to
the Plan by the Company or by a Participating Affiliate in accordance with
Section 3.3.
"COULTER PLAN" shall mean the Coulter Corporation Savings Incentive
and Retirement Plus Plan, which was maintained by the Company prior to its
merger into the Plan on or about September 1, 1998.
"COVERED EMPLOYEE" shall mean any Employee of the Company who is
paid through a payroll system of Beckman Coulter, Inc. or a Participating
Affiliate with its principal place of business in the United States or Puerto
Rico; except that there shall be excluded (i) all leased employees described in
Section 414(n) of the Code, (ii) those Employees covered by a collective
bargaining agreement between the Company and any collective bargaining
representative if retirement benefits were the subject of good faith bargaining
between such
4
<PAGE> 8
representative and the Company, unless the Employee is a member of a group of
employees to whom the Plan has been extended by a collective bargaining
agreement between the Company and its collective bargaining representative,
(iii) those Employees who are non-resident aliens with no United States source
income, and (iv) individuals who are employed by a foreign subsidiary of the
Company (even if such individuals are assigned to work in the United States or
Puerto Rico on a temporary basis). Individuals who are not classified by the
Company as Employees (including but not limited to individuals classified by the
Company as independent contractors and consultants) and individuals who are
classified by the Company as employees of an entity other than the Company or a
Company Affiliate, are not considered Covered Employees under the Plan, even if
the classification by the Company is determined to be erroneous. The foregoing
sentence sets forth a clarification of the intention of the Company regarding
participation in the Plan, and the foregoing sentence is therefore applicable in
interpreting the Plan for any Plan Year, including Plan Years prior to the
addition of such sentence to the Plan.
"DEFERRED COMPENSATION PLAN" shall mean the Beckman Coulter, Inc.
Executive Deferred Compensation Plan (formerly known as the "Beckman
Instruments, Inc. Executive Deferred Compensation Plan"), now in effect or
hereafter amended.
"DISABILITY" shall mean a medically determinable physical or mental
impairment of a potentially permanent character which prevents a Participant
from engaging in any substantial activity.
"DISAFFILIATION" shall mean Beckman Instruments, Inc. ceasing to be
a member of the same controlled group of corporations as SmithKline Beckman
Corporation.
"EFFECTIVE DATE" shall mean August 1, 1989. The effective date of
this amendment and restatement of the Plan is September 1, 1998.
"ELIGIBILITY/VESTING SERVICE DATE" shall mean the date an Employee
first completes an Hour of Service. If an Employee has a Severance from Service
and the Employee then performs an Hour of Service within 12 months of such
Severance from Service Date, his Eligibility/Vesting Service Date is not
adjusted upon reemployment. Thus, a Period of Severance of less than twelve
months is treated as a Period of Service. For an Employee who is rehired after a
Period of Severance of twelve months or more, the Eligibility/Vesting Service
Date is an adjusted date. The adjusted date is determined by counting backwards
from the date of reemployment the number of days previously credited to the
Employee as a Period of Service. This process shall be repeated for Employees
who are rehired more than once.
A Participant's Eligibility/Vesting Service Date shall not be
adjusted for the following period or periods of absence from service (that is,
such period or periods shall be
5
<PAGE> 9
treated as a Period of Service) if the Employee was in the service of the
Company or a Related Company on the day prior to such a period:
(i) Service in the Armed Forces of the United States or the
Public Health Service of the United States as a result of which such
Employee is entitled to reemployment rights from the Company pursuant to
the provisions of Section 459 of Title 50 of the United States Code,
provided that the Employee returns to work within the time period
specified in Section 459.
(ii) Approved Absences granted (either before or after the
absence) by the Company in accordance with nondiscriminatory policies
for any purpose, including, but not limited to, sickness or accident, or
for the convenience of the Company, and vacation periods.
For purposes of computing vesting and eligibility service, a
Participant's Eligibility/Vesting Service Date shall include service with a
Related Company.
"ELIGIBLE EMPLOYEE" shall mean each Covered Employee who has
satisfied the eligibility requirements of Section 2.1.
"EMPLOYEE" shall mean every person employed by the Company, or a
Related Company, including any leased employee described in Section 414(n) of
the Code and any other individual required to be treated as employed by the
Company or a Related Company under Section 414(o) of the Code.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"FIDUCIARY" shall mean all persons defined in Section 3(21) of
ERISA, and such term shall be construed as including the term "Named Fiduciary"
with respect to those Fiduciaries named in the Plan or who are identified as
Fiduciaries pursuant to procedures specified in the Plan.
"FISCAL YEAR" shall mean the fiscal year of the Company.
"HIGHLY COMPENSATED EMPLOYEE" shall mean:
(a) Any Employee who performs services for the Company or
any Related Company who (i) was a 5% owner of the Company or any Related
Company at
6
<PAGE> 10
any time during the Plan Year or the preceding Plan Year; or (ii) for the
preceding Plan Year received compensation from the Company or any Related
Company in excess of $80,000 (as adjusted pursuant to Section 415(d) of
the Code) and for the preceding Plan Year was a member of the "top-paid
group" for such year.
(b) Any Employee who separated from service (or was deemed
to have separated) prior to the current Plan Year, performs no services
for the Company or a Related Company during the current Plan Year, and who
met the description in (a) above for the year of his or her separation or
any year after he or she attained age 55.
(c) The top-paid group for a Plan Year shall consist of the
top 20% of Employees ranked on the basis of compensation received during
the year, excluding Employees described in Section 414(q)(5) of the Code
and Treasury Regulations thereunder. For purposes of the definition of
"Highly Compensated Employee," "compensation" means compensation within
the meaning of Section 415(c)(3) of the Code, but including elective or
salary reduction contributions to a cafeteria plan, cash or deferred
arrangement or tax-sheltered annuity.
"HOUR OF SERVICE" shall mean an hour (i) for which an Employee is
paid, or entitled to payment, for the performance of duties for the Company or a
Related Company; (ii) for which the Employee is paid or entitled to payment by
the Company or a Related Company on account of a period during which no duties
are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty, or leave of absence; or (iii) for
which back pay, irrespective of mitigation of damages, is either awarded or
agreed to by the Company or a Related Company. Notwithstanding any provision of
the Plan to the contrary, contributions, benefits and service credit with
respect to qualified military service will be provided in accordance with
Section 414(u) of the Code.
The following additional rules shall apply in calculating Hours of
Service: (i) an hour for which an Employee is directly or indirectly paid, or
entitled to payment, on account of a period during which no duties are performed
is not required to be credited to the Employee if such payment is made or due
under a plan maintained solely for the purpose of complying with applicable
worker's compensation, unemployment compensation, or disability insurance laws;
(ii) Hours of Service are not required to be credited for a payment which solely
reimburses an Employee for medical or medically related expenses incurred by the
Employee; and (iii) a payment shall be deemed to be made by or due from a
Company or a Related Company regardless of whether such payment is made by or
due from the Company or a Related Company directly, or indirectly through, among
others, a trust fund, or insurer, to which the Company or a Related Company
contributes or pays premiums and regardless of whether contributions made or due
to the trust fund, insurer, or other entity are for the benefit of particular
Employees or on behalf of a group of Employees in the aggregate.
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The definition of "Hour of Service" set forth herein shall also be
construed in accordance with, and shall include any additional periods of
service, that may be required by regulations promulgated by the United States
Department of Labor. The hour of service rules stated in the Department of Labor
Regulations Section 2530.200b-2(b) and -2(c) are herein incorporated by
reference.
"INVESTMENT FUNDS" shall mean the funds established pursuant to
Section 3.7.
"INVESTMENT MANAGER" shall mean a Fiduciary designated by the
Committee under the Plan to whom has been delegated the responsibility and
authority to manage, acquire or dispose of Plan assets (a) who (i) is registered
as an investment adviser under the Investment Advisers Act of 1940; (ii) is a
bank, as defined in that Act; or (iii) is an insurance company qualified to
perform investment advisory services under the laws of more than one state; and
(b) who has acknowledged in writing that he is a Fiduciary with respect to the
management, acquisition, and control of Plan assets.
"NORMAL RETIREMENT AGE" shall mean a Participant's 65th birthday.
"PARTICIPANT" shall mean any Eligible Employee who elects to
participate in accordance with the provisions of the Plan.
"PARTICIPATING AFFILIATE" shall mean any Related Company which, with
the approval of the Board, elects to participate in the Plan. By electing to
participate in the Plan, a Participating Affiliate agrees to be bound by any
Plan or Trust amendment or resolution of the Board, by the written instrument of
any person to whom the Board has delegated its authority to adopt the amendment
or by any other method of amendment permitted under the Plan. If a Participating
Affiliate ceases to be a Related Company, except by merger with its parent, the
employment of each Employee of the Participating Affiliate shall be deemed to
have terminated for purposes of the Plan, except to any extent any such Employee
is required by law to continue to be treated under the Plan as an Employee of
the Company.
"PERIOD OF SERVICE" shall mean a period of service commencing on the
Employee's Eligibility/Vesting Service Date and ending on the Severance from
Service Date.
"PERIOD OF SEVERANCE" shall mean the period of time commencing on
the day after an Employee's Severance from Service Date and ending on his
Reemployment Commencement Date.
"PLAN" shall mean the Beckman Coulter, Inc. Savings Plan set forth
herein (formerly known as the "Beckman Instruments, Inc. Savings and Investment
Plan"), now in effect or hereafter amended.
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"PLAN COMPENSATION" shall mean compensation paid during the Plan
Year and includes the following: regular earnings, overtime, sick pay, shift
differential, shift premium, vacation pay, incentive compensation, bonuses
subject to formal programs, call-in pay, patent payments and holiday pay. Plan
Compensation also includes any amounts contributed to a plan qualifying under
Sections 401(k) or 125 of the Code as salary reduction contributions and any
variable compensation paid according to a formal program or programs officially
adopted by the Company on or after January 1, 1995. Any other form of
compensation is excluded from Plan 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 use 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.
Plan Compensation shall also not include any amounts paid to an Employee prior
to the date on which he or she became a Participant. Notwithstanding the
foregoing, the maximum amount of an Employee's Plan Compensation which shall be
taken into account under the Plan for any Plan Year (the "Maximum Compensation
Limitation") shall be $150,000 adjusted at the same time and in the same manner
as under Sections 401(a)(17) and 415(d) of the Code. For any Plan Year of fewer
than twelve months, the Maximum Compensation Limitation shall be reduced to the
amount obtained by multiplying such limitation by a fraction having a numerator
equal to the number of months in the Plan Year and a denominator equal to
twelve.
"PLAN YEAR" shall mean the twelve-month period ending each December
31. The Plan Year shall be the limitation year for purposes of Section 415 of
the Code.
"PUERTO RICO PARTICIPANT" shall mean a Participant who is employed
by a Participating Affiliate which has its principal office located in Puerto
Rico.
"REEMPLOYMENT COMMENCEMENT DATE" shall mean the first date following
a Participant's Severance from Service Date on which the Employee performs an
Hour of Service.
"RELATED COMPANY" shall mean (i) each corporation which is a member
of a controlled group of corporations (within the meaning of Section 1563(a) of
the Code, determined without regard to Section 1563(a)(4) and (e)(3)(C) thereof)
of which the Company is a component member, (ii) each entity (whether or not
incorporated) which is under common control with the Company, as such common
control is defined in Section 414(c) of the Code and Regulations issued
thereunder, (iii) any organization which is a member of an affiliated service
group (within the meaning of Section 414(m) of the Code) of which the Company or
a Related Company is a member, and (iv) any organization which is required by
Treasury Regulations issued under Section 414(o) of the Code to be treated as a
Related Company. For the purposes of Article IV of the Plan the phrase "more
than 50 percent" shall be substituted for the phrase "at least 80 percent" each
place it appears in Section 1563(a)(1) of the Code. The term "Related Company"
shall also include each predecessor employer to the extent required by Section
414(a) of the Code. Notwithstanding the foregoing, service performed for a
Related Company prior to
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<PAGE> 13
the date it is considered a Related Company shall not be credited towards a
Participant's Period of Service, except as expressly set forth in this Plan.
"RESTORATION PLAN" shall mean the Beckman Coulter, Inc. Executive
Restoration Plan (formerly known as the "Beckman Instruments, Inc. Executive
Restoration Plan"), now in effect or hereafter amended.
"ROLLOVER ACCOUNT" shall mean the Account maintained for a
Participant that is credited with the amount, if any, received by the Plan in
accordance with Section 3.6 as an rollover distribution, as defined in Code
Section 402(c) (and, for a Puerto Rico Participant, Section 165(b)(2) of the
Puerto Rico Income Tax Act), together with the allocations thereto as required
by the Plan.
"SEVERANCE FROM SERVICE" or "SEVERANCE FROM SERVICE DATE" shall mean
the date on which an Employee quits, retires, is discharged or dies.
"TEST COMPENSATION" shall mean the compensation used to test the
compliance of the Plan with Code Sections 401(k) and 401(m), and shall be as
defined in Code Section 414(s). Test Compensation shall be subject to the
$150,000 limitation (as adjusted) described in the definition of Plan
Compensation. Effective for Plan Years commencing January 1, 1998 and
thereafter, Test Compensation shall include deferrals under Section 402(g)(3) or
Section 125 of the Code.
"TRUST" shall mean the Trust which is established to hold and invest
contributions made under the Plan.
"TRUSTEE" (or "Trustees," if more than one is appointed and acting)
shall mean the Trustee or Trustees, whether original or successor, appointed
under the Trust.
"VALUATION DATE" shall mean each business day of the Plan's
recordkeeper.
"YEAR OF SERVICE" shall mean a 365 day Period of Service. For the
purpose of vesting, an Employee shall be credited with a number of Years of
Service equal to the Employee's Period of Service divided by 365. Any remaining
Period of Service less than 365 days shall be disregarded. In computing the
Years of Service rendered to the Company, a Participant's total Period of
Service shall be taken into account.
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ARTICLE II
PARTICIPATION
2.1 - ELIGIBILITY REQUIREMENTS.
(a) Each Employee who was an Eligible Employee on August 31, 1998
shall continue as an Eligible Employee.
(b) Each other Covered Employee shall become an Eligible Employee
following his completion of a three month Period of Service with the
Company or a Related Company if he is a Covered Employee on that date.
2.2 - PARTICIPATION.
Participation is voluntary and shall commence for an Eligible
Employee as soon as administratively practical following the Eligible Employee's
enrollment, and shall continue until the withdrawal or payment of the
Participant's entire interest in the Plan. Each Eligible Employee who enrolls
must complete and submit a beneficiary designation form. For all purposes of the
Plan, a Participant (whether or not a United States citizen), who was an
Eligible Employee on October 1, 1996, shall continue to be treated as a Covered
Employee and an Eligible Employee if, after he becomes a Participant, he is
employed by a foreign subsidiary of the Company. The preceding sentence shall
not apply to any individual who was not a Participant on October 1, 1996, even
if such an individual subsequently becomes a Participant. If an individual who
was not a Participant on October 1, 1996 (but who subsequently becomes a
Participant) becomes covered under another plan of the Company or a foreign
subsidiary (other than the Beckman Coulter, Inc. Pension Plan), such individual
shall cease to participate in the Plan.
2.3 - REEMPLOYMENT.
(a) A Participant or an Employee who has met the eligibility
requirements described in Section 2.1 who incurs a Severance from Service
and is later reemployed as a Covered Employee shall resume or commence
participation immediately upon his reemployment, if such individual then
enrolls. Such individual shall submit a beneficiary designation form.
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<PAGE> 15
(b) An individual described in subsection (a), above, shall
commence to have contributions made on his behalf as soon as
administratively practical following his enrollment.
2.4 - DESIGNATION OF BENEFICIARY.
Upon forms provided by the Committee, each Employee who becomes a
Participant shall designate in writing the Beneficiary or Beneficiaries whom
such Employee desires to receive the benefits of the Plan in the event of such
Employee's death. A Participant may from time to time change his designated
Beneficiary or Beneficiaries without the consent of such Beneficiary or
Beneficiaries by filing a new designation in writing with the Committee.
However, if a married Participant wishes to designate a person other than his
spouse as Beneficiary, such designation shall be consented to in writing by the
spouse, which consent shall acknowledge the effect of the designation and be
witnessed by a notary public. The Participant may change any election
designating a Beneficiary or Beneficiaries without any requirement of further
spousal consent if the spouse's consent so provides. Notwithstanding the
foregoing, spousal consent shall be unnecessary if it is established (to the
satisfaction of a Plan representative) that there is no spouse or that the
required consent cannot be obtained because the spouse cannot be located, or
because of other circumstances prescribed by Treasury Regulations. The Company,
the Committee and the Trustee may rely upon his designation of Beneficiary or
Beneficiaries last filed in accordance with the terms of the Plan. Upon the
dissolution of marriage of a Participant, any designation of the Participant's
former spouse as a beneficiary, shall be treated as though the Participant's
former spouse had predeceased the Participant, unless (i) the Participant
executes another Beneficiary designation that complies with this Section 2.4 and
that clearly names such former spouse as a beneficiary, or (ii) a court order
presented to the Committee prior to distribution on behalf of the Participant
explicitly requires the Participant to continue to maintain the former spouse as
the beneficiary. In any case in which the Participant's former spouse is treated
under the Participant's Beneficiary designation as having predeceased the
Participant, no heirs or other beneficiaries of the former spouse shall receive
benefits from the Plan as a beneficiary of the Participant except as provided
otherwise in the Participant's Beneficiary designation.
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ARTICLE III
CONTRIBUTIONS
3.1 - BEFORE-TAX SAVINGS CONTRIBUTIONS.
(a) Election to Defer. Subject to the limitations in this Section
and Section 4.1, each Participant may elect to make Before-Tax Savings
Contributions, in accordance with procedures prescribed by the Committee,
in whole percentages from 1% to 15% of the portion of said Participant's
Plan Compensation other than Annual Bonus for each pay period and/or from
1% to 80% of said Participant's Annual Bonus. Notwithstanding the
foregoing, the sum of the After-Tax Savings Contributions and the
Before-Tax Savings Contributions by a Participant in a Plan Year shall not
exceed 15% of the portion of Plan Compensation other than Annual Bonus,
and shall not exceed 80% of the portion of Plan Compensation consisting of
Annual Bonus. Before-Tax Savings Contributions shall be credited to the
Participant's Before-Tax Savings Account, and shall be made in accordance
with rules established by the Committee.
Notwithstanding the foregoing, a Participant is not eligible to
elect to make Before-Tax Savings Contributions of a percentage greater
than 8% of his or her Plan Compensation in any year that he or she is also
eligible to be a participant in the Restoration Plan, but chooses not to
participate in the Restoration Plan.
(b) Status of Before-Tax Savings Contributions. To make Before-Tax
Savings Contributions under this Section, the Company will reduce the
Participant's compensation in the amount authorized by the Participant and
make a contribution to the Trustee equal to such reduction as of the
earliest date on which such amount can reasonably be segregated from the
Company's general assets; provided, however, that such contribution shall
be made no later than the fifteenth business day of the month following
the date on which such amount would otherwise have been payable to the
Participant in cash, or as of such earlier or later date (in the case of
any available extensions of time) as may be required or permitted by
regulations issued pursuant to ERISA. Before-Tax Savings Contributions
constitute Company contributions under the Plan and are intended to
qualify as elective contributions under Code Section 401(k).
(c) General Limitations on Before-Tax Contributions. The Committee
shall determine the amount of Before-Tax Savings Contributions in excess
of those permitted under subsection (d) and any excess shall either be
distributed to the Participant responsible for the excess Before-Tax
Savings Contribution or redesignated as an After-Tax Savings Contribution
and accounted for separately under the Plan in
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<PAGE> 17
accordance with the Code, Treasury Regulations and subsection (d). In the
case of Puerto Rico Participants, the Committee may impose restrictions on
the amount of Before-Tax Savings Contributions which may be made, provide
for refunds of Before-Tax Savings Contributions, and impose such rules,
limitations and restrictions as the Committee deems necessary or
appropriate to satisfy applicable law. Such restrictions, limitations,
rules and refunds may apply to all or any group of Puerto Rico
Participants, or any individual Puerto Rico Participant, as determined by
the Committee.
(d) Section 401(k) Limitations on Before-Tax Savings
Contributions.
(1) The Committee will estimate, as soon as practical before
the close of the Plan Year and at such other times as the Committee
in its discretion determines, the extent, if any, to which the
deferral of taxation on Before-Tax Savings Contributions under Code
Section 401(k) may not be available to any Participant or class of
Participants. In accordance with any such estimate, the Committee
may modify the limits in Section 3.1(a) or set initial or interim
limits for Before-Tax Savings Contributions relating to any
Participant or class of Participants. These rules may include
provisions authorizing the suspension or reduction of Before-Tax
Savings Contributions above a specified dollar amount or percentage
of Plan Compensation.
(2) For each Plan Year, an actual deferral percentage will
be determined for each Employee meeting the requirements of Section
2.1 equal to the ratio of the total amount of the Employee's
Before-Tax Savings Contributions allocated under Section 3.1(a) for
the Plan Year divided by the Employee's Test Compensation in the
Plan Year. For purposes of the preceding sentence, the Committee, in
its sole discretion, may treat all or any part of the Company
Matching Contributions as Before-Tax Savings Contributions to the
extent permitted by Treasury Regulations. Any such Company Matching
Contributions (together with any gains or losses attributable to
such amounts) that are treated as Before-Tax Savings Contributions
shall be nonforfeitable and subject to the provisions of the Plan
pertaining to distributions of amounts from Before-Tax Savings
Accounts, and shall be accounted for separately to the extent
required by Treasury Regulations. An Employee's Test Compensation
taken into account for this purpose shall be limited to the Test
Compensation received during the Plan Year while the Employee is an
Eligible Employee. Except as otherwise provided in this subsection
(d), with respect to Employees who have met the requirements of
Section 2.1, and who have made no Before-Tax Savings Contributions
under the Plan, such actual deferral percentage will be zero. The
average of the actual deferral percentages for Highly Compensated
Employees in the Plan Year (the "High Average") when compared with
the average of the actual deferral percentages for non-Highly
Compensated Employees in the preceding Plan Year (the "Low Average")
must meet one of the following requirements:
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<PAGE> 18
(i) The High Average is no greater than 1.25 times the
Low Average; or
(ii) The High Average is no greater than two times the
Low Average, and the High Average is no greater than the Low
Average plus two percentage points.
(3) If, pursuant to the estimates by the Committee under (a)
and (b) above, a Participant or class of Participants is not
eligible for the deferral of taxation for any or all of the amounts
deferred pursuant to the election made under Section 3.1(a), then
the Committee may elect, at its discretion, to pursue any of the
following courses of action or any combination thereof:
(i) Excess Before-Tax Savings Contributions for a Plan
Year may be redesignated as After-Tax Savings Contributions
and accounted for separately pursuant to this Section 3.1(d).
Excess Before-Tax Savings Contributions, however, may not be
redesignated as After-Tax Savings Contributions with respect
to a Highly Compensated Employee to any extent that such
redesignated After-Tax Savings Contributions would exceed the
limits of Section 3.2 when combined with the other After-Tax
Savings Contributions of that Employee for the Plan Year.
Adjustments to withhold any federal, state, or local taxes due
on such amounts may be made by the Company against
compensation yet to be paid to the Participant during that
taxable year.
(ii) Excess Before-Tax Savings Contributions, and any
earnings attributable thereto, may be returned to the Company
employing the Participant, solely for the purpose of enabling
the Company to withhold any federal, state, or local taxes due
on such amounts. The Company will pay all remaining amounts to
the Participant within 2-1/2 months after the close of the
Plan Year to which the excess Before-Tax Savings Contributions
relate to the extent feasible, but in all events no later than
12 months after the close of such Plan Year.
(iii) The Committee may authorize a suspension or
reduction of Before-Tax Savings Contributions made pursuant to
Section 3.1(a) in accordance with rules promulgated by the
Committee. These rules may include provisions authorizing the
suspension or reduction of Before-Tax Savings Contributions
above a specified dollar amount or percentage of Plan
Compensation.
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(iv) The Company, in its discretion, may make a
contribution to the Plan, which will be allocated as a fixed
dollar amount among the Accounts of some or all non-Highly
Compensated Employees (as determined by the Company) who have
met the requirements of Section 2.1. Such contributions shall
be fully (100%) vested at all times, and shall be subject to
the withdrawal restrictions which are applicable to Before-Tax
Savings Contributions. Such contributions shall be considered
"Qualified Non-Elective Contributions" under applicable
Treasury Regulations.
Any such excess Before-Tax Savings Contributions
recharacterized as After-Tax Savings Contributions or distributed
from the Plan with respect to a Participant for a Plan Year shall be
reduced by any amount previously distributed to such Participant
under Section 3.1(e)(2) for the Participant's taxable year ending
with or within the Plan Year.
(4) Excess Before-Tax Savings Contributions shall be
determined by the Committee in accordance with this Section 3.10(e).
The Committee shall calculate a tentative reduction amount to the
Before-Tax Savings Contributions of the Highly Compensated
Employee(s) with the highest actual deferral percentage equal to the
amount which, if they were actually reduced, would enable the Plan
to meet the limits in subsection (d)(2) or to cause the actual
deferral percentage of such Highly Compensated Employee(s) to equal
the actual deferral percentage of the Highly Compensated Employee(s)
with the next-highest actual deferral percentage, and the process
shall be repeated until the limits in (d)(2) above are satisfied.
The aggregate amount of the tentative reduction amounts in the
preceding sentence shall constitute "Refundable Contributions." The
entire aggregate amount of the Refundable Contributions shall be
refunded to Highly Compensated Employees. The amount to be refunded
to each Highly Compensated Employee (which shall constitute his
excess Before-Tax Savings Contributions) shall be determined as
follows: (i) the Before-Tax Savings Contributions of the Highly
Compensated Employee(s) with the highest dollar amount of Before-Tax
Savings Contributions shall be refunded to the extent that there are
Refundable Contributions or to the extent necessary to cause the
dollar amount of Before-Tax Savings Contributions of such Highly
Compensated Employee(s) to equal the dollar amount of Before-Tax
Savings Contributions of the Highly Compensated Employee(s) with the
next-highest Before-Tax Savings Contributions, and (ii) the process
in the foregoing clause shall be repeated until the total amount of
Before-tax Savings Contributions refunded equals the total amount of
Refundable Contributions. The earnings attributable to excess
Before-Tax Savings Contributions will be determined in accordance
with Treasury Regulations. The Committee will not be liable to any
Participant (or his Beneficiary, if applicable) for any losses
caused by inaccurately estimating or calculating the amount of any
Participant's excess Before-Tax Savings Contributions and earnings
attributable to the Before-Tax Savings Contributions.
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<PAGE> 20
(5) If the Committee determines that an amount to be
deferred pursuant to the election provided in Section 3.1 would
cause Company contributions under this and any other tax-qualified
retirement plan maintained by any Company to exceed the applicable
deduction limitations contained in Code Section 404, or to exceed
the maximum Annual Addition determined in accordance with Section
4.1, the Committee may treat such amount in accordance with the
rules in subsection (d)(3)(iii) hereof.
(6) In the discretion of the Committee, the tests described
in this Section may be applied by aggregating the Plan with any
other defined contribution plans permitted under the Code. For
purposes of determining whether the Plan satisfies the requirements
of this subsection (d), all Before-Tax Savings Contributions and
elective contributions under any other Plan maintained by the
Company which is aggregated with the Plan for purposes of Section
401(a) or 410(b) of the Code (other than Section 410(b)(2)(A)(ii))
are to be treated as made under a single plan. Furthermore, if two
or more plans are permissively aggregated for purposes of the test
described in this subsection (d), the aggregated plans must also
satisfy Code Sections 401(a)(4) and 410(b) as though they were a
single plan.
(e) Dollar Limit on Before-Tax Savings Contributions.
(1) Before-Tax Savings Contributions made on behalf of any
Participant under the Plan and all other plans (which are described
in subsection (e)(3)) maintained by the Company or a Related Company
shall not exceed the limitation under Section 402(g)(1) of the Code
for the taxable year of the Participant, as adjusted annually under
Section 402(g)(5) of the Code, and shall be effective as of January
1 of each calendar year. The limit applicable to Puerto Rico
Participants shall be the limit established by Puerto Rico law.
(2) In the event that the dollar limitation provided for in
subsection (e)(1) is exceeded, the Participant is deemed to have
requested a distribution of the excess amount by the first March 1
following the close of the Participant's taxable year, and the
Committee shall distribute such excess amount, and any income
allocable to such amount, to the Participant by April 15th. In
determining the excess amount distributable with respect to a
Participant's taxable year, excess Before-Tax Savings Contributions
previously distributed or redesignated as After-Tax Savings
Contributions for the Plan Year beginning with or within such
taxable year shall reduce the amount otherwise distributable under
this paragraph (2).
(3) In the event that a Participant is also a participant in
(i) another qualified cash or deferred arrangement as defined in
Code Section 401(k), (ii) a
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<PAGE> 21
simplified employee pension, as defined in Code Section 408(k), or
(iii) a salary reduction arrangement, within the meaning of Code
Section 3121(a)(5)(D), and the elective deferrals, as defined in
Code Section 402(g)(3), made under such other arrangement(s) and the
Plan cumulatively exceed the dollar limit under this subsection (e)
for such Participant's taxable year, the Participant may, not later
than March 1 following the close of his taxable year, notify the
Committee in writing of such excess and request that the Before-Tax
Savings Contributions made on his behalf under the Plan be reduced
by an amount specified by the Participant. The Committee shall then
distribute such excess in the same manner as provided in subsection
(e)(2).
3.2 - AFTER-TAX SAVINGS CONTRIBUTIONS.
(a) Election to Make After-Tax Savings Contributions. Subject to
the limitations of Sections 3.4 and 4.1, each Participant may elect to
make After-Tax Savings Contributions on his own behalf in accordance with
procedures prescribed by the Committee in whole percentages from 1% to 15%
of the portion of said Participant's Plan Compensation other than Annual
Bonus for each payroll period and/or from 1% to 80% of said Participant's
Annual Bonus. Notwithstanding the foregoing, the sum of the After-Tax
Savings Contributions and the Before-Tax Savings Contributions by a
Participant in a Plan Year shall not exceed 15% of said Participant's Plan
Compensation other than Annual Bonus and 80% of said Participant's Annual
Bonus.
Notwithstanding the foregoing paragraph, a Participant is not
eligible to elect to make After-Tax Savings Contributions of a percentage
greater than 15% of the portion of his or her Plan Compensation consisting
of Annual Bonus in any year that he or she is also eligible to be a
participant in the Restoration Plan. Furthermore, the combined total of
Before-Tax Savings Contributions and After-Tax Savings Contributions of
such a Participant may not exceed 15% of Plan Compensation.
(b) Status of After-Tax Savings Contributions. To make After-Tax
Savings Contributions under this Section, the Company will deduct from the
Participant's compensation the amount authorized by the Participant, and
shall withhold income taxes on such amount. The Company will then
contribute the amount authorized by the Participant, reduced by withheld
income taxes, to the Trustee as of the earliest date on which such amount
can reasonably be segregated from the Company's general assets; provided,
however, that such contribution shall be made no later than the fifteenth
business day of the month following the date on which such amount would
otherwise have been payable to the Participant in cash, or as of such
earlier or later date (in the case of any available extensions of time) as
may be required or permitted by regulations issued pursuant to ERISA.
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<PAGE> 22
(c) General Limitations on After-Tax Savings Contributions. As of
the last day of the Plan Year, the Committee shall determine the amount of
After-Tax Savings Contributions in excess of those permitted under Section
3.4 of the Plan, and any excess shall be distributed to the Participant
responsible for the excess After-Tax Savings Contribution as provided in
Section 3.4(c).
3.3 - COMPANY MATCHING CONTRIBUTIONS.
(a) Amount of Company Matching Contributions. Subject to the
limitations of this Section 3.3, Section 3.4, and Section 4.1, for each
Plan Year the Company shall make Company Matching Contributions to the
Plan as follows:
(i) Effective September 1, 1998, to the extent a
Participant's Company Matching Contributions are invested in the
Beckman Coulter Stock Fund in accordance with Section 3.7(b)(ii),
the Company Matching Contribution shall be equal to 70% of the sum
of the Participant's Before-Tax Savings Contributions and After-Tax
Savings Contributions for the Plan Year on up to 5% of such
Participant's Plan Compensation;
(ii) To the extent a Participant's Company Matching
Contributions are invested in the Investment Funds other than the
Beckman Coulter Stock Fund in accordance with Section 3.7(b), the
Company Matching Contribution shall be equal to 50% of the sum of
the Participant's Before-Tax Savings Contributions and After-Tax
Savings Contributions for the Plan Year on up to 5% of such
Participant's Plan Compensation;
The Company shall pay to the Trustee the Company Matching
Contributions for any Plan Year within the time prescribed by law,
including extensions of time, for the filing of the Company's
federal income tax return for the Fiscal Year ending with or within
the Plan Year to which the contribution relates. No Company Matching
Contributions are made on account of Before-Tax Savings
Contributions and After-Tax Savings Contributions in excess of 5% of
the Participant's Plan Compensation for the year.
(b) Allocation of Company Matching Contributions. The Company
Matching Contributions for any Plan Year shall be allocated to the Company
Matching Account maintained for the Participant on behalf of whom the
contribution under Section 3.3(a) was made.
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3.4 - SECTION 401(m) LIMITATIONS ON AFTER-TAX SAVINGS
CONTRIBUTIONS AND COMPANY MATCHING CONTRIBUTIONS.
(a) The Committee will estimate, as soon as practical, before the
close of the Plan Year and at such other times as the Committee in its
discretion determines, the extent, if any, to which After-Tax Savings
Contributions may not be available to any Participant or class of
Participants under Code Section 401(m). In accordance with any such
estimate, the Committee may modify the limits in Section 3.2 or set
initial or interim limits, for After-Tax Savings Contributions relating to
any Participant or class of Participants. After determining the amount of
excess Before-Tax Savings Contributions, if any, under subsections
3.1(d)(1) and (2), the Committee shall determine the aggregate
contribution percentage under (b) below.
(b) For each Plan Year, a contribution percentage will be
determined for each Employee meeting the requirements of Section 2.1 equal
to the ratio of the total amount of the Employee's After-Tax Savings
Contributions and Company Matching Contributions allocated under Sections
3.2 and 3.3 for the Plan Year divided by the Employee's Test Compensation
in the Plan Year. For purposes of this Section 3.4, the Committee, in its
sole discretion, may treat all or any part of the Before-Tax Savings
Contributions as Company Matching Contributions to the extent permitted by
Treasury Regulations. Except as otherwise permitted by the Code or
Treasury Regulations, any such Before-Tax Savings Contributions that are
treated as Company Matching Contributions shall not be treated as
Before-Tax Savings Contributions for purposes of Section 3.1(d)(2). To the
extent Before-Tax Savings Contributions are treated as Company Matching
Contributions for purposes of this Section 3.4, the Plan must satisfy
Section 3.1(d)(2) by excluding such amounts from Before-Tax Savings
Contributions. Further, any Company Matching Contributions treated as
Before-Tax Savings Contributions under Section 3.1(d) shall not be used to
satisfy the requirements of this Section 3.4, except as otherwise
permitted by the Code or Treasury Regulations. An Employee's Test
Compensation taken into account for purposes of this Section 3.4 shall be
limited to Test Compensation received during the Plan Year while the
Employee is an Eligible Employee. Except as otherwise provided in this
Section 3.4(b), with respect to Employees who have met the requirements of
Section 2.1, who have made no After-Tax Savings Contributions and for whom
there were no Company Matching Contributions under the Plan, such
contribution percentage will be zero. The average of the contribution
percentages for Highly Compensated Employees in the Plan Year (the "High
Average") when compared with the average of the contribution percentages
for non-Highly Compensated Employees in the preceding Plan Year (the "Low
Average") must meet one of the following requirements:
(i) The High Average is no greater than 1.25 times the Low
Average; or
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(ii) The High Average is no greater than two times the Low
Average, and the High Average is no greater than the Low Average
plus two percentage points.
(c) If, pursuant to the estimates by the Committee under (b)
above, the contribution percentage for any Plan Year for Highly
Compensated Employees exceeds the limits established in (b), the excess
contributions for such Plan Year (and the earnings attributable thereto
through the end of the Plan Year) shall be distributed to the Highly
Compensated Employees within the 2 1/2 month period following the close of
the Plan Year to the extent feasible, and in all events no later than 12
months after the close of the Plan Year. After-Tax Savings Contributions
and Company Matching Contributions shall be determined by the Committee in
accordance with this Section 3.4(c). The Committee shall calculate a
tentative reduction amount to the Company Matching Contributions made with
respect to the Highly Compensated Employee(s) with the highest
contribution percentage equal to the amount which, if it were actually
reduced, would enable the Plan to meet the limits in (b) above, or to
cause the contribution percentage of such Highly Compensated Employee(s)
to equal the actual contribution percentage of the Highly Compensated
Employee(s) with the next-highest contribution percentage, and the process
shall be repeated until the limits in (b) above are satisfied. The
aggregate amount of the tentative reduction amounts in the preceding
sentence shall constitute "Refundable After-Tax or Matching
Contributions." The entire aggregate amount of the Refundable After-Tax or
Matching Contributions shall be refunded to Highly Compensated Employees.
The amount to be refunded to each Highly Compensated Employee (which shall
constitute his excess After-Tax Savings Contributions and Company Matching
Contributions) shall be determined as follows: (i) the After-Tax Savings
Contributions and Company Matching Contributions made with respect to the
Highly Compensated Employee(s) with the highest dollar amount of After-Tax
Savings Contributions and Company Matching Contributions shall be refunded
to the extent that there are Refundable After-Tax or Matching
Contributions or to the extent necessary to cause the dollar amount of
After-Tax Savings Contributions and Company Matching Contributions of such
Highly Compensated Employee(s) to equal the dollar amount of After-Tax
Savings Contributions and Company Matching Contributions made with respect
to the Highly Compensated Employee(s) with the next-highest After-Tax
Savings Contributions and Company Matching Contributions, and (ii) the
process in the foregoing clause shall be repeated until the total amount
of After-Tax Savings Contributions and Company Matching Contributions
refunded equals the total amount of Refundable After-Tax or Matching
Contributions. For each Highly Compensated Employee for whom contributions
are to be refunded, After-Tax Savings Contributions shall first be
returned; if such Highly Compensated Employee has no more After-Tax
Savings Contributions and a further refund of contributions is needed,
Company Matching Contributions shall be reduced; provided, however, that
if the sum of a Participant's After-Tax Savings Contributions and
Before-Tax Savings Contributions falls below five percent as a result of
the return of After-Tax Savings Contributions, Company Matching
Contributions shall be reduced so that Company Matching Contributions do
not exceed fifty percent of the sum of the After-Tax Savings Contributions
and Before-Tax Savings Contributions which remain in the Plan. The
earnings attributable to excess contributions will be
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determined in accordance with Treasury Regulations. The Committee will not
be liable to any Participant (or to his Beneficiary, if applicable) for
any losses caused by inaccurately estimating or calculating the amount of
any Participant's excess contributions and earnings attributable to the
contributions.
(d) The tests of Sections 3.1(d)(2) and 3.4(b) shall be met in
accordance with the prohibition against the multiple use of the
alternative limitation under Code Sections 401(m)(9), 401(k)(3)(A)(ii)(II)
and 401(m)(2)(A)(ii). For purposes of determining whether the Plan
satisfies the requirements of this section, all Before-Tax Savings
Contributions, After-Tax Savings Contributions, and Company Matching
Contributions under any other Plan maintained by the Company which is
aggregated with the Plan for purposes of Section 401(a) or 410(b) of the
Code (other than Section 410(b)(2)(A)(ii)) are to be treated as made under
a single plan. Furthermore, if two or more plans are permissively
aggregated for purposes of the test described in this section, the
aggregated plans must also satisfy Code Sections 401(a)(4) and 410(b) as
though they were a single plan. If it is necessary to make corrections
concerning the prohibition against the multiple use of the alternative
limitation under Code Section 401(m)(9), the correction shall be made
first by reducing and refunding After-Tax Savings Contributions to Highly
Compensated Employees who made such contributions (if any), and second, if
necessary, by reducing and refunding the Before-Tax Savings Contributions
of Highly Compensated Employees. All Highly Compensated Employees shall be
subject to such correction.
3.5 - CHANGE IN PERCENTAGE OR DISCONTINUANCE OF CONTRIBUTIONS; COMMITTEE RULES.
A Participant's Before-Tax Savings Contribution and After-Tax
Savings Contribution percentage will remain in effect, notwithstanding any
change in Plan Compensation, until the Participant elects to discontinue such
Contributions or to change the percentage. A Participant may elect as of the
first day of each pay period (or such other time established by the Committee)
to discontinue, resume or change the percentage of his Before-Tax Savings
Contributions or After-Tax Savings Contributions, by electing to do so in the
manner and at the time prescribed by the Committee.
A Participant who is also a participant in the Restoration Plan for
a Plan Year shall be permitted to change his or her election of Before-Tax
Savings Contributions effective as of the first day of a Plan Year, and shall be
entitled to change his or her election of After-Tax Savings Contributions during
a Plan Year, in each case according to the manner prescribed by the Committee.
Notwithstanding the foregoing paragraphs, a Participant who is a
participant in the Restoration Plan for a Plan Year shall not be permitted to
change, discontinue, or resume his or her election of Before-Tax Savings
Contributions during that Plan Year; provided, however, that such a Participant
may elect, in a manner prescribed by the Committee, to completely discontinue
all Before-Tax Savings Contributions and After-Tax Savings Contributions under
the
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<PAGE> 26
Plan; provided, however, such a Participant must concurrently discontinue
contributions under the Restoration Plan and, if applicable, the Deferred
Compensation Plan, and such a Participant may not resume contributions to the
Plan or such other plans for the remainder of the Plan Year and the following
Plan Year. In addition, a Participant who is also a participant in the Deferred
Compensation Plan who discontinues his or her salary and/or bonus deferrals
during the year under the Deferred Compensation Plan must at the same time
discontinue all Before-Tax Savings Contributions and After-Tax Savings
Contributions under this Plan and the Restoration Plan. Such a Participant may
not resume contributions to this Plan or such other plans for the remainder of
the Plan Year and the following Plan Year.
If a Participant who is a participant under the Restoration Plan
does not, during the period prior to a Plan Year prescribed by the procedures
established by the Committee, submit a new election concerning his or her
Before-Tax Savings Contributions for the following Plan Year, he or she shall be
deemed to have initially elected no Before-Tax Savings Contribution for such
Plan Year, but shall be entitled to change his or her election concerning
Before-Tax Savings Contributions under the procedures of the Plan applicable to
Participants who are eligible for, but do not participate in, the Restoration
Plan.
The Committee may permit telephonic and on-line elections or change
elections and establish rules regarding telephonic and on-line elections. The
Committee may establish other rules concerning Before-Tax Savings Contributions
and After-Tax Savings Contributions. By way of example and not of limitation,
such rules may include the following:
(1) Rules specifying maximum and/or minimum Before-Tax Savings
Contributions and/or After-Tax Savings Contributions, either as dollar or
percentage amounts;
(2) Rules specifying the frequency with which contribution
elections may be changed (and the effective dates of such change
elections);
(3) Rules establishing specific pay periods for which Before-Tax
Savings Contributions and/or After-Tax Savings Contributions may be made;
and
(4) That contribution elections and any changes to Before-Tax
Savings Contributions and/or After-Tax Savings Contributions be made on
forms established by the Committee.
3.6 - ROLLOVER CONTRIBUTIONS.
(a) A Covered Employee (other than a Covered Employee who is not
expected to satisfy the eligibility requirements of Section 2.1),
regardless of whether he
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has yet satisfied the eligibility requirements of Section 2.1, who has
received a distribution from a plan which meets the requirements of
Section 401(a) of the Code (and, in the case of a Puerto Rico Participant,
both Section 401(a) of the Code and Section 165 of the Puerto Rico Income
Tax Act) may, in accordance with procedures approved by the Committee,
contribute the distribution received from the other plan to the Trust;
provided that the distribution is eligible for rollover treatment and
exclusion from the gross income of the Participant in accordance with
Section 402(c) of the Code.
(b) The Committee shall develop such procedures, and may require
such information from an Employee desiring to make such a contribution, as
it deems necessary or desirable to determine that the proposed
contribution will meet the requirements of this Section. Upon approval by
the Committee, the amount contributed shall be deposited in the Trust and
shall be credited to an account which shall be referred to as the
"Rollover Account." Such account shall be 100% vested in the Employee and
shall share in income allocations as provided in the Plan, but shall not
share in contribution allocations.
(c) Upon such contribution by a Covered Employee who has not yet
completed the participation requirements of Section 2.1, his Rollover
Account shall represent his sole interest in the Plan until he becomes a
Participant.
3.7 - INVESTMENT OF ACCOUNTS.
(a) Separate Investment Funds shall be established and maintained
by the Committee under the Plan. The Committee may, in its discretion,
terminate any Investment Fund. Pursuant to Section 7.3(b), the Committee
shall determine the number of Investment Funds and the Committee, the
Trustee or the Investment Manager shall determine the investments to be
made under the Investment Funds; provided that, pursuant to procedures and
guidelines adopted by the Committee, one of the Investment Funds may be a
"brokerage window" under which Participants may determine the investments.
In addition to such other limits and rules as may be established by the
Committee, investment in the brokerage window shall be limited to
Participants' After-Tax Savings Accounts, Before-Tax Savings Accounts, and
Rollover Accounts. Participants shall be responsible for payment of all
fees and expenses incurred with respect to the establishment of a
brokerage window and with respect to investment activities engaged in
through the brokerage window. One Investment Fund shall be a Beckman
Coulter Stock Fund, which is a pool of assets maintained by the Trustee,
invested in common stock of the Company (except for cash or cash
equivalents pending distribution or investment and a short-term investment
component which may be retained in the Committee's discretion to provide
liquidity for such fund). Any cash dividends on common stock of the
Company in the Beckman Coulter Stock Fund shall be reinvested in common
stock of the Company.
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(b) Pursuant to procedures established by the Committee and
subject to the other provisions of this Section 3.7, each Participant
shall have the right and obligation to designate in which of the
Investment Funds his Accounts will be invested, and to change such
designation. Designations shall be in 1% increments, unless the Committee
provides otherwise, and shall total 100%. The designation shall be on such
forms as are approved by the Committee or pursuant to such other methods
(including telephonic transfers) as may be authorized by the Committee.
The Committee shall describe to the Participants the investments to be
made under each Investment Fund in such detail as the Committee deems
appropriate in its sole discretion. Up to 100% of the Trust assets may be
invested in common stock of the Company; the amount of Trust assets that
may be invested in common stock of the Company will be the amount selected
by the Participants to be so invested. If a Participant does not make an
election with respect to the investment of his Accounts, they will be
invested in the Investment Fund selected by the Committee as announced to
Participants.
(i) A Participant may change the allocation of contributions
or transfer Investment Fund balances according to the procedures
established by the Committee and subject to any restrictions imposed
by the Committee. Such changes or transfers shall be designated in
1% increments (or such other method established by the Committee).
If a Covered Employee makes a Rollover Contribution at the time he
is not yet a Participant, he shall allocate the Rollover
Contribution among the available Investment Funds. If a Participant
makes a Rollover Contribution, the Rollover Contribution shall be
allocated according to the Participant's existing election, unless
the rules established by the Committee provide otherwise.
(ii) A Participant may not transfer Account balances
attributable to Company Matching Contributions from the Beckman
Coulter Stock Fund to any other Investment Fund, except that
transfers to another Investment Fund are permitted: (A) with respect
to the portion of such Account balance attributable (following
adjustments for investment gains and losses) to Company Matching
Contributions which were first credited to the Participant's Company
Matching Account on or after September 1, 1998 and invested in the
Beckman Coulter Stock Fund prior to the first day of the month
occurring five years before the date of the transfer, provided that
this five year restriction is not applicable to any Participant who
has incurred a Severance from Service and has not been subsequently
reemployed; (B) on or after the first day of the month following the
Participant's 55th birthday; or (C) on or after September 1, 2003
with respect to Company Matching Contributions which were first
credited on or before August 31, 1998. The foregoing limitations of
this paragraph (ii) shall not apply to any Company Matching
Contributions which were credited to a Participant's Company
Matching Account and were initially invested in an Investment Fund
other than the Beckman Coulter Stock Fund.
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(c) All investment elections by Participants under this Section
shall be made only in accordance with the administrative procedures
established from time to time by the Committee and shall be subject to
such reasonable guidelines and limitations as the Committee shall deem to
be appropriate for the efficient administration of the Plan. Pending
implementation of a Participant's investment election, the Trustee may
hold the funds that are the subject of such election temporarily in cash
or cash equivalent investments.
3.8 - VALUATION OF ACCOUNTS.
(a) The value of the Accounts invested in the Investment Funds
shall be established on each Valuation Date by the Trustee or the
Investment Manager, and investment gains or losses shall be allocated to
such Accounts according to the investment elections of Participants.
Transactions involving the Beckman Coulter Stock Fund (such as a transfer,
withdrawal or loan involving common stock of the Company) shall take into
account such settlement period as may be administratively appropriate, and
the values of the Investment Funds involved in such transactions shall be
based upon the share price determined at the end of the settlement period.
Furthermore, transactions involving Investment Funds other than the
Beckman Coulter Stock Fund may, for administrative reasons, be
accomplished with the use of settlement periods during which proceeds will
not be invested.
(b) Notwithstanding anything to the contrary herein, if the
Committee determines that an alternative method of allocating earnings and
losses would better serve the interests of Participants and Beneficiaries
or could be more readily implemented, the Committee may substitute such
alternative; provided that any such alternative method must result in Plan
earnings being allocated on the general basis of Account balances.
(c) Amounts invested in the Beckman Coulter Stock Fund shall be
invested in common stock of the Company (except for cash or cash
equivalents pending distribution or investment and a short-term investment
component which may be retained in the Committee's discretion to provide
liquidity for such fund). Cash dividends received on the common stock of
the Company shall be used to purchase additional shares of common stock of
the Company. Stock dividends and stock splits on the common stock of the
Company shall be reflected by an adjustment to the number of shares of
common stock of the Company held in the Beckman Coulter Stock Fund.
(d) Full and fractional shares of common stock of the Company
allocated to a Participant's Accounts will be voted by the Trustee
according to the Participant's instructions. Unless the Committee
determines otherwise, the Trustee will not vote shares of stock allocated
to Participant's Accounts for which instructions are not received from
Participants. Shareholder rights with respect to common stock of the
Company, other than voting rights, which can be exercised by Participants
may be passed through to
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Participants and exercised in a similar manner to voting rights or will be
exercised in such other manner as is legally required. However, where the
circumstances (such as the lack of time or the lack of liquid funds to
satisfy a requirement to pay for additional shares of stock) make it
impractical to pass such rights through to Participants and no other
specific legal requirement exists, the rights will be exercised (or sold)
by the Trustee in a manner that the Trustee deems prudent under the
circumstances and otherwise consistent with the fiduciary standards of
ERISA.
3.9 - NOTIFICATION OF PARTICIPANTS.
The Committee shall at least annually notify each Participant with
respect to the status of such Participant's Accounts as of such date. In
addition, the Committee may notify each Participant of the status of his
Accounts as of any other date chosen by the Committee. Such notification shall
not vest in any participant any right, title or interest in the Trust, except to
the extent, at the time or times, and upon the terms and conditions set forth
herein. Neither the Company, the Trustee, nor the Committee to any extent
warrants, guarantees or represents that the value of any Participant's Accounts
at any time will equal or exceed the amount previously allocated or contributed
thereto.
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ARTICLE IV
LIMITATION ON ANNUAL ADDITIONS
4.1 - SECTION 415 LIMITATIONS.
Notwithstanding anything else contained herein, the Annual Additions
to all the Accounts of a Participant shall not exceed the lesser of $30,000
(adjusted as permitted under Section 415(d)(1) of the Code and regulations
issued thereunder) or 25% of the Participant's Section 415 Compensation from the
Company and all Related Companies during the Plan Year, in accordance with the
provisions of Appendix A attached hereto.
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ARTICLE V
VESTING
5.1 - FULLY VESTED ACCOUNTS.
A Participant's Before-Tax Savings Account, After-Tax Savings
Account and Rollover Account shall be 100% vested and nonforfeitable.
5.2 - COMPANY MATCHING ACCOUNT.
(a) Each Participant who is an Employee on September 1, 1998 shall
become fully vested in his Company Matching Account, to the extent not
previously forfeited, as of such date. Company Matching Contributions made
after such date shall be fully vested.
(b) If a former Participant is reemployed as an Employee by the
Company, he shall become fully vested in his Company Matching Account to
the extent such Account was not previously forfeited. If a former
Participant who suffered a forfeiture on account of his termination of
participation in accordance with the prior version of this Section 5.2 is
reemployed as an Employee by the Company before incurring an uninterrupted
six year Period of Severance and repays to the Plan all money distributed
from his Accounts prior to 60 months after such reemployment, any amounts
so forfeited (unadjusted for any increase or decrease in the value of
Trust assets subsequent to the date on which the forfeiture occurred)
shall be reinstated to the Participant's Company Matching Account within a
reasonable time after such repayment. Such reinstatement shall be made
from forfeitures of Participants occurring during the Plan Year in which
such reinstatement occurs to the extent such forfeitures are attributable
to contributions by the same Company (or a Company that is a Related
Company to that Company) and earnings on such contributions; provided,
however, if such forfeitures are not sufficient to provide such
reinstatement, the reinstatement shall be made from the current year's
contribution by that Company to the Plan.
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ARTICLE VI
DISTRIBUTIONS
6.1 - AFTER-TAX SAVINGS ACCOUNT WITHDRAWAL.
A Participant may withdraw part or all of his After-Tax Savings
Account. Such withdrawal may be made by written notice (or other method
determined by the Committee) filed with the Committee prior to the intended
withdrawal date. A withdrawal under this Section 6.1 may be taken only in the
form of cash.
6.2 - NON-HARDSHIP WITHDRAWAL.
A Participant may withdraw part or all of the amounts credited to
the following Accounts as of August 31, 1998, provided that such amounts are
withdrawn from the Accounts in the following order:
(a) After-Tax Savings Account;
(b) Rollover Account;
(c) If the Participant is fully vested, the Company Matching
Account (provided that only such portion of the Company Matching Account
as is attributable to Company Matching Contributions made at least two
years prior to August 31, 1998 may be withdrawn).
A withdrawal under this Section 6.2 may be taken only in cash to the
extent the Account being withdrawn is not invested in stock of the Company. To
the extent the Account being withdrawn is invested in stock of the Company, the
Participant may specify that the withdrawal be paid in cash and/or in kind in
10% increments, provided that no fractional shares or units shall be distributed
in kind. To the extent that the amount being withdrawn is invested in stock of
the Company, the amount to be withdrawn shall be adjusted so that the amount
reflects the proceeds of the sale of full shares and/or units. A Participant's
aggregate withdrawals under this Section 6.2 from each of his After-Tax Savings
Account, Rollover Account, and Company Matching Account shall not exceed the
balance credited to such Account as of August 31, 1998.
6.3 - ROLLOVER ACCOUNT WITHDRAWAL.
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A Participant may withdraw part or all of his Rollover Account. Such
withdrawal may be made by written notice (or other method determined by the
Committee) filed with the Committee prior to the intended withdrawal date. A
withdrawal under this Section 6.3 may be taken only in the form of cash.
6.4 - HARDSHIP WITHDRAWAL.
(a) Subject to the approval of the Committee and guidelines
promulgated by the Committee, withdrawals may be permitted to meet a
financial hardship resulting from:
(i) Uninsured medical expenses incurred by the Participant,
or the Participant's spouse or dependent, or necessary for these
persons to obtain such medical care;
(ii) The purchase (excluding mortgage payments) of a
principal residence of the Participant;
(iii) The payment of tuition and related educational fees, and
room and board expenses, for the next twelve months of
post-secondary education for the Participant, or the Participant's
spouse, children or dependents;
(iv) The prevention of eviction of the Participant from his
principal residence, or foreclosure on the mortgage of the
Participant's principal residence; and
(v) Any other event described in Treasury Regulations or
rulings as an allowable "safe harbor" hardship distribution and
approved by the Committee as a reason for permitting distribution
under this section.
The Committee shall determine, in a non-discriminatory manner,
whether a Participant has a financial hardship. A distribution may
be made under this Section only if such distribution does not exceed
the amount required to meet the immediate financial need created by
the hardship and is not reasonably available from other resources of
the Participant. The amount of the withdrawal may be increased by
10% to 30% to cover taxes on the withdrawal.
(b) Withdrawals pursuant to this Section 6.4 may only be made from
a Participant's Before-Tax Savings Account (excluding investment gains
attributable to contributions on or after January 1, 1988), Company
Matching Account, Coulter Profit
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Sharing Account, and the Coulter Flex Account, and shall be made on a pro
rata basis from such Accounts. A withdrawal under this Section 6.4 may be
taken only in the form of cash.
(c) If a Participant makes a withdrawal pursuant to this Section
6.4, he shall be unable to elect that any Before-Tax Savings Contributions
or After-Tax Savings Contributions or any other employee contributions be
made on his behalf under the Plan or under any other plan maintained by
the Company or a Related Company until the first day of the first pay
period occurring twelve months following his withdrawal or longer if
applicable under other plan rules. For purposes of the preceding sentence,
a plan includes any qualified plan or nonqualified plan of deferred
compensation and any stock purchase or stock option plan, but does not
include cafeteria plans or any other health or welfare benefit plans. Any
amount refunded to the Participant upon suspension of contributions to an
employee stock purchase plan shall reduce the withdrawal available. The
limitation under Code Section 402(g) referred to in Section 3.1(e) shall
be adjusted in the first taxable year of the Participant commencing after
a withdrawal under this Section. The adjusted limitation shall be (i) the
limitation which applies in the first taxable year of the Participant
commencing after the withdrawal, less (ii) the Before-Tax Savings
Contributions which had been made on behalf of the Participant in the
taxable year of the Participant in which the withdrawal occurred.
(d) Except as may otherwise be permitted under Section
1.401(k)-1(d)(2) of the Treasury Regulations, a Participant shall not be
permitted to make any withdrawals from his Before-Tax Savings Account
pursuant to this Section until he has obtained all distributions, other
than hardship distributions, and all non-taxable loans currently available
under all qualified profit sharing and retirement plans maintained by the
Company.
6.5 - AGE 59-1/2 WITHDRAWAL.
After attaining age 59-1/2, a Participant may withdraw part or all
of his Accounts. Such withdrawal may be made by written notice (or other method
determined by the Committee) filed with the Committee prior to the intended
withdrawal date. Withdrawals pursuant to this Section 6.5 shall be made from a
pro rata basis from all such Accounts; provided that each Participant in the
Plan on August 31, 1998 may elect in connection with any withdrawal pursuant to
Section 6.5 to have the withdrawal from his Accounts made in the following order
(an Account which precedes another Account must be fully withdrawn before the
subsequent Account may be withdrawn): (i) Before-Tax Savings Account; (ii)
After-Tax Savings Account; (iii) Rollover Account; (iv) Company Matching
Contribution Account; (v) Coulter Profit Sharing Account; and (vi) Coulter Flex
Account.
A withdrawal under this Section 6.5 may be taken only in cash to the
extent the Account
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being withdrawn is not invested in stock of the Company. To the extent the
Account being withdrawn is invested in stock of the Company, the Participant may
specify that the withdrawal be paid in cash and/or in kind in 10% increments,
provided that no fractional shares or units shall be distributed in kind. To the
extent that the amount being withdrawn is invested in stock of the Company, the
amount to be withdrawn shall be adjusted so that the amount reflects the
proceeds of the sale of full shares and/or units.
6.6 - TERMINATION WITHDRAWAL.
(a) Benefits shall become distributable to a Participant or his
Beneficiary (in the case of death) upon a Severance from Service.
(b) The benefits distributable to the Participant upon a Severance
from Service shall be the amounts credited to the Participant's Accounts,
with the value of the accounts to be determined pursuant to Section 6.8.
(c) Notwithstanding the foregoing, if the nonforfeitable balance
in the Participant's Accounts on the Valuation Date immediately following
the Severance from Service exceeds $5,000, distribution shall be made upon
a Severance from Service only if the Participant so requests or consents
to a distribution of the nonforfeitable balance of his Accounts in
writing. An explanation of the Participant's right to defer distribution
of the nonforfeitable balance of his Accounts shall be provided to the
Participant no less than 30 and no more than 90 days before such
distribution is to be made (consistent with such regulations as the
Secretary of the Treasury may prescribe). If a Participant does not so
request or consent, (unless Treasury Regulations otherwise provide and the
Committee adopts different rules) distribution of the amounts payable
shall be delayed until the latest date permitted under Section 6.10.
(d) A withdrawal under this Section 6.6 may be taken only in cash
to the extent the Account being withdrawn is not invested in stock of the
Company. To the extent the Account being withdrawn is invested in stock of
the Company, the Participant may specify that the withdrawal be paid in
cash and/or in kind in 10% increments, provided that no fractional shares
or units shall be distributed in kind.
(e) A distribution pursuant to this Section 6.6 shall be in the
form of a single lump sum payment, unless a Participant elects one of the
alternative forms of payment described below. A participant may elect, in
lieu of a lump sum payment:
(1) Payment in substantially equal cash installments over a
fixed period of time not to exceed 30 years (subject to Section
6.10(b)); or
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(f) Partial distributions. Partial distributions are processed in
the following order: (i) After-Tax Account; (ii) Rollover Account; (iii)
Before-Tax Account; (iv) Company Matching Account; (v) Retirement Plus
Account; (vi) Coulter Pension Plan Account; (vii) Coulter Profit Sharing
Account; and (viii) Coulter Flex Account.
6.7 - Withdrawal Due to Death
(a) In the event of the death of the Participant, the
nonforfeitable balance of the Participant's Accounts will be payable to
the Participant's Beneficiary or Beneficiaries as determined under Section
2.4 in the following manner:
(1) If this nonforfeitable balance equals $5,000 or less,
the balance will be paid to the Beneficiary or Beneficiaries as soon
as administratively practical following the end of the year in which
the Participant's death occurs;
(2) If the nonforfeitable balance exceeds $5,000, and the
Participant's Beneficiary is not the Participant's spouse, the
Beneficiary may defer payment until December 31 of the calendar year
which is five years after the date of the Participant's death; and
(3) If the nonforfeitable balance exceeds $5,000, and the
Participant's Beneficiary is the Participant's spouse, the
Beneficiary may defer payment of the nonforfeitable balance of the
Participant's Accounts until the earlier of (i) the year in which
the Participant would have turned age 70-1/2, or the year in which
the Participant's spouse turns age 70-1/2.
(b) If the Beneficiary elects to defer payment, he may select any
form of payment permitted under Section 6.6(e).
6.8 - SPECIAL RULES FOR WITHDRAWALS.
(a) The total number of withdrawals referred to in Sections 6.1,
6.2, 6.3 and 6.5 shall not exceed four in any Plan Year for any
Participant. The Committee may adopt additional rules regarding the
frequency of withdrawals; provided that each Participant shall have the
right to make at least four withdrawals in any Plan Year.
(b) Except as otherwise provided herein, the withdrawal will be
taken on a pro-rata basis from all Investment Funds.
(c) The value of all withdrawals shall be determined as of the
Valuation Date on which the withdrawal is processed according to
procedures adopted by the Committee,
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except as specified in Section 3.8. The check representing the amount of
the withdrawal shall be delivered as soon as administratively feasible
following the processing of the withdrawal.
(d) Except as provided in Section 6.6, all distributions shall be
single sums.
(e) Federal (and, where applicable, state) income taxes shall be
withheld from any distribution unless such withholding is waived in
accordance with applicable law.
(f) If the Participant does not specify that a withdrawal referred
to in Sections 6.2, 6.5 or 6.6 be paid in cash and/or shares, the
withdrawal shall be made in cash.
6.9 - INABILITY TO LOCATE PARTICIPANT.
In the case of any distribution of an Account under the Plan, if the
Committee is unable to make such payment within three years after payment is due
a Participant or Beneficiary because it cannot locate such Participant or
Beneficiary, the Trustee shall direct that such amount shall be forfeited and
shall be used to reduce future Company Matching Contributions, as in the case of
amounts forfeited for any other reason and the assets of the Plan shall be
relieved of the liability for such payment. If, after such forfeiture, the
Participant or Beneficiary later claims such benefit, such Account shall be
reinstated from forfeitures of Participants in the Plan occurring during the
Plan Year in which such reinstatement occurs; provided, however, that if such
forfeitures are not sufficient to provide such reinstatement, an additional
Company contribution shall be made for the Plan Year in which reinstatement
occurs to cover such reinstatement. Establishment of an Account through such
reinstatement shall not be deemed an "annual addition" under Section 415 of the
Code or Article IV of the Plan.
6.10 - LIMITATIONS ON DISTRIBUTIONS.
(a) Upon the completion of the withdrawal or distribution forms
required by the Committee, the Committee shall direct the Trustee to
distribute the benefits described in this Article VI promptly, the payment
of such benefits to commence, notwithstanding anything to the contrary
contained herein, no later than 60 days following the close of the later
of the Plan Year in which (i) a Participant reaches Normal Retirement Age,
(ii) the Participant incurs a Severance from Service, or (iii) occurs the
10th anniversary of the year in which the Participant commenced
participation in the Plan (unless the amount of the Participant's benefit
has not been calculated by that date or the Participant cannot be located,
in which case distribution shall begin no later than 60 days after the
payment can be calculated or the Participant located).
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(b) Notwithstanding anything to the contrary contained herein, the
distribution options under the Plan shall comply with Section 401(a)(9) of
the Code and regulations promulgated thereunder, which are hereby
incorporated by this reference as a part of the Plan. Accordingly, unless
otherwise permitted by law, the interest of each Participant shall
commence to be distributed by April 1 of the calendar year following the
later of the calendar year in which the Participant reaches age 70-1/2, or
(except for a five percent owner of the Company during the Plan Year in
which the Participant attains age 70-1/2), the year the Participant has a
Severance from Service. Furthermore, Coulter Employees, as defined in
Appendix F, who reach age 70-1/2 shall be permitted to withdraw any or all
of their Pension Plan Accounts or Retirement Plus Accounts prior to
Severance from Service.
(c) Shares of common stock of the Company held or distributed by
the Trustee may include such legend restrictions on transferability as the
Company may reasonably require in order to assure compliance with
applicable federal and state securities laws.
6.11 - QUALIFIED DOMESTIC RELATIONS ORDERS.
Subject to the procedures established by the Committee under Section
9.4(b), benefits may be paid from the nonforfeitable balance of a Participant's
Accounts in accordance with a qualified domestic relations order as defined in
Code Section 414(p) notwithstanding the fact that the Participant has not
reached "earliest retirement age" as defined in the Code.
6.12 - DIRECT ROLLOVERS.
(a) This Section 6.12 applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a Distributee's election under this Section
6.12, a Distributee may elect, at the time and in the manner prescribed by
the Committee, to have any portion of an Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan specified by the Distributee
in a Direct Rollover.
(b) Eligible Rollover Distributions: for purposes of this Section
6.12, an "Eligible Rollover Distribution" is any distribution of all or
any portion of the balance to the credit of the Distributee, except that
an Eligible Rollover Distribution does not include:
(1) any distribution that is one of a series of
substantially equal periodic payments (not less frequently than
annually) made for the life (or joint
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life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten years or
more;
(2) any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code;
(3) the portion of any distribution that is not includable
in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities); and
(4) any other type of distribution which the Internal
Revenue Service announces (pursuant to regulation, notice, or
otherwise) is not an Eligible Rollover Distribution.
(c) Eligible Retirement Plan: For purposes of this Section 6.12,
"Eligible Retirement Plan" is an individual retirement account described
in Section 408(a) of the Code, an individual retirement annuity described
in Section 408(b) of the Code, an annuity plan described in Section 403(a)
of the Code, or a qualified trust described in Section 401(a) of the Code,
that accepts the Distributee's Eligible Rollover Distribution. However, in
the case of an Eligible Rollover Distribution to the surviving spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
(d) Distributee: For purposes of this Section 6.12, a
"Distributee" includes an Employee or former Employee. In addition, the
Employee's or former Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is the alternate payee under
a qualified domestic relations order, as defined in Section 414(p) of the
Code, are Distributees with regard to the interest of the spouse or former
spouse.
(e) Direct Rollover: For purposes of this Section 6.12, a "Direct
Rollover" is a payment by the Plan to the Eligible Retirement Plan
specified by the Distributee.
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ARTICLE VII
THE COMMITTEE
7.1 - MEMBERS.
The Benefits Committee of the Company (hereinafter referred to as
the "Committee") is appointed by, and serves at the pleasure of, the Board. 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.
7.2 - COMMITTEE ACTION.
A member of the Committee shall serve as Chairman for the Committee,
and a Secretary shall be selected. The Secretary need not be a member of the
Committee. The Secretary shall keep minutes of the Committee's proceedings.
Records and documents pertaining to the Committee's administration of the Plan
shall be maintained by the Committee or its delegate(s). Any action of the
Committee shall be taken pursuant to the vote or written consent of a majority
of its members present, and such action shall constitute the action of the
Committee and be binding upon the same as if all members had joined therein. A
member of the Committee shall not vote or act upon any matter which relates
solely to himself as a Participant. The Chairman, any other member or members of
the Committee designated by the Chairman, or a representative of the Committee
designated by the Committee, may execute any certificate or other written
direction on behalf of the Committee.
7.3 - RIGHTS AND DUTIES.
(a) The Company shall be the Plan Administrator (as defined in
Section 3(16)(A) of ERISA). The Company delegates its duties under the
Plan to the Committee. The Committee shall act as the Fiduciary with
respect to control and management of the Plan for purposes of ERISA on
behalf of the Participants and their Beneficiaries, shall enforce the Plan
in accordance with its terms, shall be charged with the general
administration of the Plan, and shall have all powers necessary to
accomplish its purposes, including, but not by way of limitation, the
following:
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(1) To determine all questions relating to the eligibility
of Employees to participate;
(2) As provided in Section 7.7, to construe and interpret
the terms of the Plan;
(3) To compute, certify to, and direct the Trustee with
regard to the amount and kind of benefits payable to Participants
and their Beneficiaries;
(4) To authorize all disbursements by the Trustee from the
Trust;
(5) To maintain all records that may be necessary for the
administration of the Plan other than those maintained by the
Trustee;
(6) 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 ERISA
or other law, other than those prepared and filed by the Trustee;
(7) To make and publish such rules for the regulation of the
Plan as are not inconsistent with the terms hereof;
(8) To appoint a plan administrator or any other agent, and
to delegate to them or to the Trustee such powers and duties in
connection with the administration of the Plan as the Committee may
from time to time prescribe, and to designate each such
administrator or agent as Fiduciary with regard to matters delegated
to him; and
(9) To establish claims procedures consistent with
regulations of the Secretary of Labor for presentation of claims by
Participants and Beneficiaries for Plan benefits, consideration of
such claims, review of claim denials and issuance of a decision on
review. Such claims procedures shall at a minimum consist of the
following:
(A) The Committee shall notify Participants and, where
appropriate, Beneficiaries of their right to claim benefits
under the claims procedures, and may, if appropriate, make
forms available for filing of such claims, and shall provide
the name of the person or persons with whom such claims should
be filed.
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(B) The Committee shall establish procedures for
action upon claims initially made and the communication of a
decision to the claimant promptly and, in any event, not later
than 90 days after the claim is received by the Committee,
unless special circumstances require an extension of time for
processing the claim. If an extension is required, notice of
the extension shall be furnished to the claimant prior to the
end of the initial 90-day period, which notice shall indicate
the reasons for the extension and the expected decision date.
The extension shall not exceed 90 days. The claim may be
deemed by the claimant to have been denied for purposes of
further review described below in the event a decision is not
furnished to the claimant within the period described in the
three preceding sentences. Every claim for benefits which is
denied shall be denied by written notice setting forth in a
manner calculated to be understood by the claimant (i) the
specific reason or reasons for the denial, (ii) specific
reference to any provisions of the Plan on which denial is
based, (iii) description of any additional material or
information necessary for the claimant to perfect his claim
with an explanation of why such material or information is
necessary, and (iv) an explanation of the procedure for
further reviewing the denial of the claim under the Plan.
(C) The Committee shall establish a procedure for
review of claim denials, such review to be undertaken by the
Committee. The review given after denial of any claim shall be
a full and fair review with the claimant or his duly
authorized representative having 60 days after receipt of
denial of his claim to request such review, the right to
review all pertinent documents and the right to submit issues
and comments in writing.
(D) The Committee shall establish a procedure for
issuance of a decision by the Committee not later than 60 days
after receipt of a request for review from a claimant unless
special circumstances, such as the need to hold a hearing,
require a longer period of time, in which case a decision
shall be rendered as soon as possible but not later than 120
days after receipt of the claimant's request for review. The
decision on review shall be in writing and shall include
specific reasons for the decision written in a manner
calculated to be understood by the claimant with specific
reference to any provisions of the Plan on which the decision
is based.
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(10) To establish deadlines and procedures for elections to
be made by Employees and Participants, including but not
limited to, elections to withdraw amounts from the Plan, transfer
amounts between Investment Funds, change the percentage of
contributions, change the investment of contributions, enroll in the
Plan or discontinue contributions.
(b) The Committee shall have the power to direct the Trustee in
writing with respect to the investment of the Trust assets or any part
thereof. Where investment authority, management and control of Trust
assets have been delegated to the Trustee by the Committee, the Trustee
shall be the Fiduciary with respect to the investment, management and
control of the Trust assets contributed by the Company and Participants
with full discretion in the exercise of such investment, management and
control. Except as otherwise provided by law, the Committee may appoint
one or more Investment Managers, as defined in Section 1.2 of the Plan, to
invest the Trust assets or any part thereof. Where investment authority,
management, and control of Trust assets is not specifically delegated to
the Trustee, the Trustee shall not be a Fiduciary with respect to the
investment, management and control of Trust assets and shall be subject to
the direction of the Committee or the Investment Managers appointed by the
Committee, if any, regarding the investment, management and control of
such assets, and in such case the Committee, or the Investment Managers,
as the case may be, shall be the Fiduciary with respect to the investment,
management and control of such assets.
(c) Each Fiduciary under the Plan and Trust shall be solely
responsible for its own acts or omissions. Except to the extent required
by ERISA or the Code, no Fiduciary shall have the duty to question whether
any other Fiduciary is fulfilling any or all of the responsibilities
imposed upon such other Fiduciary by ERISA or by any regulations or
rulings issued thereunder. No Fiduciary shall have any liability for a
breach of fiduciary responsibility of another Fiduciary with respect to
the Plan or Trust unless he knowingly participates in such breach,
knowingly undertakes to conceal such breach, has actual knowledge of such
breach and fails to take reasonable remedial action to remedy said breach
or, through his negligence in performing his own specific fiduciary
responsibilities, has enabled such other Fiduciary to commit a breach of
the latter's fiduciary responsibilities.
7.4 - PROCEDURE FOR ESTABLISHING FUNDING POLICY, TRANSMITTAL OF
INFORMATION.
In order to enable the Committee to establish a funding policy and
perform its other functions under the Plan, the Company shall supply full and
timely information to the Committee on all matters relating to the compensation,
employment, retirement, death, or the cause for termination of employment of
each Participant and such other pertinent facts as may be required. The
Committee shall advise the Trustee and the Investment Manager, as appropriate,
of such of the foregoing facts as may be pertinent to the duties of the Trustee
and Investment Manager under the Plan.
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7.5 - OTHER INFORMATION.
To enable the Committee to perform its functions, the Company shall
supply full and timely information to the Committee on all matters relating to
the compensation of all Participants, their employment, retirement, death or
other cause for termination of employment, and such other pertinent facts as the
Committee may require; and the Committee shall advise the Trustee of such of the
foregoing facts as may be pertinent to the Trustee's duties under the Plan.
7.6 - COMPENSATION, BONDING, INDEMNITY AND LIABILITY.
(a) The members of the Committee shall serve without compensation
for their services hereunder. Members of the Committee and any delegates
shall be bonded to the extent required by Section 412(a) of ERISA and the
regulations thereunder. Bond premiums and all expenses of the Committee or
of any delegate who is an employee of the Company shall be paid by the
Company and the Company shall furnish the Committee and any such delegate
with such clerical and other assistance as is necessary in the performance
of their duties. The Committee is authorized at the expense of the Company
to employ such legal counsel as it may deem advisable to assist in the
performance of its duties hereunder. No expenses or fees of the Committee
for the administration of the Plan and services in relation thereto shall
be paid from the Trust assets, other than those expenses related to
investments as are charged against an Investment Fund.
(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 the 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 by-law, agreement or otherwise, as
such indemnities are permitted under state law. Payments with respect to
any indemnity and payment of any expenses and fees under this Section
shall be made only from assets of the Company and shall not be made
directly or indirectly from Trust assets.
7.7 - MANNER OF ADMINISTERING.
The Committee shall have full discretion to construe and interpret
the terms and provisions of the 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
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Committee shall administer such terms and provisions in a uniform and
nondiscriminatory manner and in full accordance with any and all laws applicable
to the Plan.
7.8 - DUTY OF CARE.
In the exercise of the powers and duties of the Committee as Plan
Administrator and Fiduciary with respect to control and management of the Plan,
each member of the Committee shall use the care, prudence, and diligence under
the circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims.
7.9 - SECTION 404(c) PROVISIONS.
(a) The Plan is intended to constitute a plan described in Section
404(c) of ERISA, and the regulations thereunder. As a result, with respect
to elections described in the Plan and any other exercise of control by a
Participant or his or her Beneficiary over assets in the Participant's
Accounts, such Participant or Beneficiary shall be solely responsible for
such actions, and neither the Trustee, the Committee, the Company, nor any
other person or entity which is otherwise a Fiduciary shall be liable for
any loss or liability which results from such Participant's or
Beneficiary's exercise of control.
(b) The Committee shall provide to each Participant or his or her
Beneficiary the information described in Section
2550.404c-1(b)(2)(i)(B)(1) of the Department of Labor Regulations. Upon
request by a Participant or his or her Beneficiary, the Committee shall
provide the information described in Section 2550.404c-1(b)(2)(i)(B)(2) of
the Department of Labor Regulations.
(c) The Committee shall take such actions and establish such
procedures as it deems necessary to ensure the confidentiality of
information relating to the purchase, sale, and holding of common stock of
the Company, and the exercise of voting, tender and similar rights with
respect to such stock by a Participant of his or her Beneficiary.
Notwithstanding the foregoing, such information may be disclosed to the
extent necessary to comply with applicable state and federal laws.
(d) In the event of a tender or exchange offer with respect to the
Company, or in the event of a contested election with respect to the
Board, the Company shall, at its own expense, appoint an independent
Fiduciary to carry out the Committee's administrative functions with
respect to the common stock of the Company. Such independent Fiduciary
shall not be an "affiliate" of the Company as such term is defined in
Section 2530.404c-1(e)(3) of the Department of Labor Regulations.
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(e) The Committee may take such other actions or implement such
other procedures as it deems necessary or desirable in order that the Plan
comply with Section 404(c) of ERISA.
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ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 - AMENDMENTS.
The Board of Directors shall have the right to amend or modify the
Plan. Furthermore, the Committee has the authority to adopt any amendment to the
Plan which is necessary to maintain the qualification and tax exempt status of
the Plan under the Code, and any other amendments to the Plan which do not have
the effect of increasing the liability of the Company in a manner which would
cause significant detriment to the Company. Any amendment shall be stated in an
instrument in writing, executed in the same manner as the Plan. Except as may be
required to permit the Plan and Trust to meet the requirements for qualification
and tax exemption under the Code, or the corresponding provisions of other or
subsequent revenue laws or of ERISA, no amendment may be made which may:
(a) Cause any of the assets of the Trust, at any time prior to the
satisfaction of all liabilities with respect to Participants and their
Beneficiaries, to be used for or diverted to purposes other than for the
exclusive benefit of Participants or their Beneficiaries;
(b) Decrease the accrued benefit of any Participant or Beneficiary
within the meaning of Section 411(d)(6) of the Code;
(c) Create or effect any discrimination in favor of Participants
who are Highly Compensated Employees; and
(d) Increase the duties or liabilities of the Trustee without its
written consent.
8.2 - DISCONTINUANCE OF PLAN.
(a) It is the Company's expectation that the Plan and the payment
of contributions hereunder will be continued indefinitely, but continuance
of the Plan by the Company is not assumed as a contractual obligation, and
the Company reserves the right to permanently discontinue contributions
hereunder. In the event of the complete discontinuance of contributions by
the Company, the entire interest of each Participant affected thereby
shall immediately become 100% vested. The Company, the Board of Directors,
the Committee, and the Employees, agents and shareholders of the Company
shall not be liable for the payment of any benefits under the Plan and all
benefits
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hereunder shall be payable solely from the assets of the Trust except as
otherwise required by ERISA.
(b) The Board of Directors may terminate the Plan at any time.
Upon complete termination or partial termination of the Plan, the entire
interest of each of the affected Participants shall become 100% vested.
The Trustee shall thereafter, upon direction of the Committee, distribute
to the Participants the amounts in such Participant's Accounts in the same
manner as set forth in Article VI, subject, where appropriate, to Section
403(d)(1) of ERISA and regulations of the Secretary of Labor thereunder as
may affect allocation of assets upon termination of such Plan.
8.3 - FAILURE TO CONTRIBUTE.
Any failure by the Company to contribute to the Trust in any year
when no contribution is required under the Plan shall not of itself be a
discontinuance of contributions under the Plan.
8.4 - MERGER OR CONSOLIDATION.
(a) The Plan shall not be merged or consolidated with, nor shall
its assets or liabilities be transferred to, any other plan unless each
Participant in the Plan (if the Plan is then terminated) would receive a
benefit immediately after the merger, consolidation or transfer which is
equal to or greater than the benefit such Participants, respectively,
would have been entitled to receive immediately before the merger,
consolidation or transfer (if the Plan had been terminated). Where the
foregoing requirement is satisfied, the Plan and its related Trust may be
merged or consolidated with another qualified plan and trust.
(b) If the Company merges or consolidates with or into a
successor, the Plan shall continue in effect unless the successor
terminates the Plan.
(c) The Committee may, in its discretion, authorize a plan to plan
transfer, provided such a transfer will meet the requirements of Section
414(l) of the Code and that all other actions legally required are taken.
In the event of a transfer of assets from the Plan pursuant to this
subsection, any corresponding benefit liabilities shall also be
transferred.
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ARTICLE IX
MISCELLANEOUS
9.1 - CONTRIBUTIONS NOT RECOVERABLE.
Except where contributions are required to be returned to the
Company by the provisions of the Plan as permitted or required by ERISA or the
Code, it shall be impossible for any part of the contributions made under the
Plan to be used for, or diverted to, purposes other than the exclusive benefit
of Participants or their Beneficiaries. Notwithstanding this or any other
provision of the Plan, the Company shall be entitled to recover, and the
Participants under the Plan shall have no interest in (i) any contributions made
under the Plan by mistake of fact, so long as the contribution is returned
within one year after payment (ii) in the event that the Company receives an
adverse determination from the Internal Revenue Service with respect to the
Plan's initial qualification with the result that the Trust is not exempt from
Federal income tax and the Company's contributions to the Trust are not
deductible in determining its Federal income tax (or, only with respect to
contributions made on behalf of Puerto Rico Participants, a similar adverse
determination under the Puerto Rico Income Tax Act), any contributions made
prior to that time, so long as the contribution is returned within one year
after such determination and the application for determination was made by the
time prescribed by law for filing the Company's return for the taxable year in
which the Plan was adopted or such later date as the Secretary of the Treasury
may prescribe and (iii) any contributions for which deduction is disallowed
under Section 404 of the Code, so long as the contributions are returned to the
Company within one year following such disallowance or as permitted or required
by the Code or ERISA. In the event of such mistake of fact, determination by the
Commissioner, or disallowance of deductions, contributions shall be returned to
the Company, subject to the limitations, if any, of Section 403(c) of ERISA.
9.2 - LIMITATION ON PARTICIPANT'S RIGHTS.
Participation in the Plan shall not give any Employee the right to
be retained as an Employee of the Company or any right or interest under the
Plan other than as herein provided. The Company reserves the right to dismiss
any Employee without any liability for any claim either against the Trustee, the
Trust except to the extent provided in the Trust, or against the Company. All
benefits under the Plan shall be provided solely from the assets of the Trust.
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9.3 - RECEIPT OR RELEASE.
Any payment to any Participant or Beneficiary in accordance with the
provisions of the Plan shall, to the extent hereof, be in full satisfaction of
all claims against the Trustee, the Committee, and the Company. The Trustee may
require such Participant or Beneficiary, as a condition precedent to such
payment, to execute a receipt and release to such effect.
9.4 - ALIENATION.
(a) None of the benefits, payments, proceeds or claims of any
Participant or Beneficiary shall be subject to any claim of any creditors
and, in particular, the same shall not be subject to attachment or
garnishment or other legal process by any creditor, nor shall any such
Participant or Beneficiary have the right to voluntarily or involuntarily
alienate, anticipate, commute, pledge, encumber or assign any of the
benefits or payments or proceeds which such Participant or Beneficiary may
expect to receive, contingently or otherwise, under the Plan.
(b) Notwithstanding the foregoing, the right to a benefit payable
with respect to a Participant pursuant to a "qualified domestic relations
order" (within the meaning of Code Section 414(p)) may be created,
assigned or recognized. The Committee shall establish reasonable
procedures to determine the qualified status of domestic relations orders
and to administer distributions under such qualified orders. In the event
a qualified domestic relations order exists with respect to a benefit
payable under the Plan, the benefits otherwise payable to a Participant or
Beneficiary shall be payable to the alternate payee specified in the
qualified domestic relations order.
(c) Notwithstanding subsection (a), a loan described in Section
9.11 shall not be considered a violation of this Section 9.4.
9.5 - GOVERNING LAW.
The Plan shall be construed, administered, and governed in all
respects under applicable federal law, and to the extent that federal law is
inapplicable, under the laws of the State of California; provided, however, that
if any provision is susceptible to more than one interpretation, such
interpretation shall be given thereto as is consistent with the Plan remaining
qualified within the meaning of Section 401(a) of the Code and, with respect to
Puerto Rico Participants, Section 165 of the Puerto Rico Income Tax Act. If any
provisions of this instrument shall be held by a court of competent jurisdiction
to be invalid or unenforceable, the remaining provisions hereof shall continue
to be fully effective.
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9.6 - HEADINGS, ETC. NOT PART OF PLAN.
Headings and subheadings in the Plan are inserted for convenience of
reference only and are not to be considered in the construction of the
provisions hereof.
9.7 - MASCULINE GENDER INCLUDES FEMININE AND NEUTER.
As used in the Plan, the masculine gender shall include the feminine
and neuter genders.
9.8 - INSTRUMENTS IN COUNTERPARTS.
The Plan may be executed in several counterparts, each of which
shall be deemed an original, and said counterparts shall constitute but one and
the same instrument, which may be sufficiently evidenced by any one counterpart.
9.9 - SUCCESSORS AND ASSIGNS.
The Plan shall inure to the benefit of, and be binding upon the
parties hereto and their successors and assigns.
9.10 - TOP-HEAVY PLAN REQUIREMENTS.
For any Plan Year for which the Plan is a Top-Heavy Plan, as defined
in Section 1.3 of Appendix B, attached hereto, and despite any other provisions
of the Plan to the contrary, the Plan will be subject to the provisions of
Appendix B.
9.11 - LOANS TO PARTICIPANTS.
(a) Each Participant shall have the right, subject to prior
approval by the Committee, to borrow from his Accounts. Application for a
loan must be submitted by a Participant to the Committee according to the
procedures established by the Committee. The Committee may permit
telephonic applications. Approval shall be granted or denied as specified
in subsection (b), on the terms specified in subsection (c). For purposes
of this Section 9.11, but only to the extent required by Department of
Labor Regulations Section 2550.408b-1, the term "Participant" shall
include any Employee, former Employee, Beneficiary or alternate payee
under a qualified domestic relations order, as defined in Section 414(p)
of the Code, who is a party in interest and has an interest in the
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<PAGE> 53
Plan that is not contingent. Accordingly, no loan shall be granted to a
former employee who is not a party in interest; provided, however, that
solely to the extent required to satisfy Code Section 401(a)(4), if a loan
is granted to a former employee who is a party in interest, then loans
shall be made available to other former employees.
(b) The Committee shall grant any loan which meets each of the
requirements of paragraphs (1), (2) and (3) below:
(1) The amount of the loan, when added to the outstanding
balance of all other loans to the Participant from all qualified
plans of the Company or any Related Company shall not exceed the
lesser of:
(A) $50,000, reduced by the excess, if any, of a
Participant's highest outstanding balance of all loans from
the Plan or any other qualified plan maintained by the Company
or any Related Company during the preceding 12 months over the
outstanding balance of such loans on the loan date, or
(B) 50% of the value of the vested balance of the
Participant's Accounts established as of the last business day
preceding the date upon which the loan is made;
(2) The loan shall be for at least $1,000; and
(3) No more than one loan may be outstanding to a
Participant at any time.
(c) Each loan granted shall, by its terms, satisfy each of the
following additional requirements:
(1) Each loan must be repaid within five years (except that
if the loan proceeds are being used to purchase the principal
residence of a Participant, the Committee may, in its discretion,
establish a term of up to 15 years for repayment);
(2) Each loan must require substantially level amortization
over the term of the loan, with payments not less frequently than
quarterly; and
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<PAGE> 54
(3) Each loan must be adequately secured, with the security
to consist of the balance of the Participant's Accounts.
(A) In the case of any Participant who is an Employee,
automatic payroll deductions shall be required as additional
security. In the event such a Participant incurs a Severance
from Service, the loan will become immediately payable in full
as of the Severance from Service Date (notwithstanding the
original term of the loan).
(B) In the case of any Participant who is not an
Employee, the outstanding loan balance may at no time exceed
50% of the outstanding vested balance of the Participant's
Accounts. If such limit is at any time exceeded, or if the
Participant fails to make timely repayment, the loan will be
treated as in default and become immediately payable in full.
(C) If a Participant's loan is secured by the
Participant's Accounts, the investment gain or loss
attributable to the loan shall not be included in the
calculation or allocation of the increase or decrease in fair
market value of the general assets of the Plan. Instead, the
entire gain or loss (including any gain or loss attributable
to interest payments or default) shall be allocated to the
Accounts of the Participant.
(4) Each loan shall bear reasonable rate of interest, which
rate shall be established by the Committee from time to time and
shall provide the Plan with a return commensurate with the interest
rates charged by persons in the business of lending money for loans
which would be made under similar circumstances. Furthermore, the
Participant's Accounts may be charged a setup fee if one is charged
by the Plan's recordkeeper with respect to the establishment of a
loan, provided that such fee shall not exceed the fee charged by the
recordkeeper; such setup fee shall be paid to the Plan's
recordkeeper. In addition, the Participant's Accounts may be charged
for fees of third parties or taxes levied in connection with the
loan transaction.
(5) Except as provided in subsection (a), the entire loan
balance is due and payable no later than 60 days from the date the
Participant ceases to be an Employee.
(d) All loan payments shall be transmitted by the Company to the
Trustee as soon as practicable; but in no event later than the fifteenth
business day of the month
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<PAGE> 55
following the date on which such loan payment was received by the Company
or would otherwise have been payable to the Participant in cash, or as of
such earlier or later date (in the case of any available extensions of
time) as may be required or permitted by regulations issued pursuant to
ERISA. Each loan may be prepaid in full at any time. Any prepayment shall
be paid directly to the Trustee in accordance with procedures adopted by
the Committee.
(e) Each loan shall be evidenced by a promissory note incorporated
into a document executed by the Participant and payable in full to the
Trustee, not later than the earliest of (i) a fixed maturity date meeting
the requirements of subsection (c)(1) above, (ii) the Participant's death,
or (iii) the termination of the Plan. Such promissory note shall evidence
such terms as are required by this section.
(f) The Committee shall have the power to modify the above rules
or establish any additional rules with respect to loans extended pursuant
to this section. Such rules may be included in a separate document or
documents and shall be considered a part of the Plan; provided, each rule
and each loan shall be made only in accordance with the regulations and
rulings of the Internal Revenue Service and Department of Labor and other
applicable state or federal law. The Committee shall act in its sole
discretion to ascertain whether the requirements of such regulations and
rulings and this section have been met.
9.12 - RULE 16b-3 PROVISIONS.
(a) This Section 9.12 shall only apply to Participants who are
officers or directors subject to the prohibitions of Section 16 of the
Securities and Exchange Act of 1934 ("SEC Section 16"). The provisions of
this Section 9.12 relate to 17 C.F.R. 240.16b-3 (hereinafter known as Rule
16b-3), promulgated under SEC Section 16.
(b) Notwithstanding any other provision of the Plan to the
contrary, the Committee may (but need not) provide that, except as
provided in Rule 16b-3, (i) no election of a Stock Fund Sale shall be made
unless the election is made at least six months following the election of
the most recent Stock Fund Purchase; (ii) no election of a Stock Fund
Purchase shall be made unless the election is made at least six months
following the election of the most recent Stock Fund Sale. For this
purpose, a Stock Fund Sale is either (i) the reallocation of the
investment of a Participant's existing Account balances so that amounts in
the Beckman Coulter Stock Fund are transferred to one or more other
Investment Funds or (ii) reduction in the Beckman Coulter Stock Fund
balances due to a distribution, withdrawal or loan to a Participant
pursuant to Article VI or Section 9.11. A Stock Fund Purchase is a
reallocation of the investment of a Participant's existing Account
balances so that there is a transfer from one or more Investment Funds to
the Beckman Coulter Stock Fund. However, a transaction shall not be a
Stock Fund Sale or a Stock Fund Purchase unless it is at the volition of
the
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<PAGE> 56
Participant, is not required to be made available to the Participant
pursuant to the Code and is not made in connection with the Participant's
death, disability, retirement or termination of employment.
(c) The Committee may (but need not) adopt such rules and/or take
such actions or implement such measures and/or limitations as it deems
desirable in order to comply with Rule 16b-3, including without
limitation, rules that (i) exclude Participants subject to this Section
9.12 from making telephonic instructions and (ii) provide that in-service
withdrawals and loans may be made from all Investment Funds (excluding the
Beckman Coulter Stock Fund), on a pro rata basis if the election of the
in-service withdrawal or loan is made within six months of an election of
a Stock Fund Purchase. Neither the Company, the Board, the Committee, the
Investment Manager, the Trustee nor the Plan shall have any liability to
any Participant in the event any Participant has any liability under SEC
Section 16 due to any rule so adopted, the failure to adopt any rule, any
Plan provision (or lack thereof), or any transaction under the Plan.
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IN WITNESS WHEREOF, the Company has caused these presents to be
executed by its duly authorized officer as of this 24th day of December 1998.
BECKMAN COULTER, INC.
By: /s/ FIDENCIO M. MARES
------------------------------------------
Print Name: Fidencio M. Mares
-----------------------------------
Its: Vice President, Human Resources
------------------------------------------
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APPENDIX A
ANNUAL ADDITION LIMITS
The Plan shall be construed in accordance with this Appendix A.
Unless the context clearly requires otherwise, words and phrases used in this
Appendix A shall have the same meanings that are assigned to them under the
Plan.
1.1 - DEFINITIONS.
As used in this Appendix A, the following terms shall have the
meanings specified below.
"ANNUAL ADDITIONS" shall mean the sum credited to a Participant's
Accounts for any Plan Year of (i) Company contributions, (ii) voluntary
contributions, (iii) forfeitures, (iv) amounts credited to an individual medical
account, as defined in Code Section 415(l)(2) which is part of a Defined Benefit
Plan maintained by the Company, and (v) amounts derived from contributions,
which are attributable to post-retirement medical benefits allocated to the
separate account required with respect to a key employee (as defined in Appendix
B of the Plan) under a welfare benefit plan (as defined in Code Section 419(e))
maintained by the Company.
"DEFINED BENEFIT PLAN" means a plan described in Section 414(j) of
the Code.
"DEFINED CONTRIBUTION PLAN" means a plan described in Section 414(i)
of the Code.
"DEFINED BENEFIT PLAN FRACTION" shall mean a fraction, the numerator
of which is the projected annual benefit (determined as of the close of the
relevant Plan Year) of the Participant under all Defined Benefit Plans
maintained by one or more Affiliated Companies, and the denominator of which is
the lesser of (i) the product of 1.25 multiplied by the dollar limitation in
effect under Section 415(b)(1)(A) of the Code for the Plan Year, or (ii) the
product of 1.4 multiplied by the amount which may be taken into account under
Section 415(b)(1)(B) of the Code with respect to the Participant for the Plan
Year.
"DEFINED CONTRIBUTION PLAN FRACTION" shall mean a fraction, the
numerator of which is the sum of the annual additions to a Participant's
accounts under all Defined Contribution Plans maintained by one or more
Affiliate Companies, and the denominator of which is the sum of the lesser of
(i) or (ii) for such Plan Year and for each prior Plan Year of Service with one
or more Related Companies, where (i) is the product of 1.25 multiplied by the
dollar limitation in effect under Section 415(c)(1)(A) of the Code for the Plan
Year (determined
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<PAGE> 59
without regard to Section 415(c)(6) of the Code), and (ii) is the product of 1.4
multiplied by the amount which may be taken into account under Section
415(c)(1)(B) of the Code (or Section 415(c)(7) of the Code, if applicable) with
respect to the Participant for the Plan Year. Solely for purposes of this
definition, contributions made directly by an Employee to a Defined Benefit Plan
which maintains a qualified cost-of-living arrangement as such term is defined
in Section 415(k)(2) shall be treated as Annual Additions. Notwithstanding the
foregoing, the numerator of the Defined Contribution Plan Fraction shall be
adjusted pursuant to Treasury Regulations 1.415-7(d)(1) and Questions T-6 and
T-7 of Internal Revenue Service Notice 83-10.
"SECTION 415 COMPENSATION" shall mean a Participant's earned income,
wages, salaries, and fees for professional services, and other amounts received
for personal services actually rendered in the course of employment with an
employer maintaining a plan (including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses), and excluding the
following:
(a) Except as provided below, employer contributions to a plan of
deferred compensation which are not included in the Employee's gross
income for the taxable year in which contributed or employer contributions
under a simplified employee pension plan to the extent such contributions
are deductible by the Employee, or any distributions from a plan of
deferred compensation;
(b) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the employee either
becomes freely transferable or is no longer subject to a substantial risk
of forfeiture;
(c) Amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option; and
(d) Except as provided below, other amounts which received special
tax benefits other than under Code Sections 933 or 911, or contributions
made by the employer (whether or not under a salary reduction agreement)
towards the purchase of an annuity described in Section 403(b) of the Code
(whether or not the amounts are actually excludable from the gross income
of the Employee).
Compensation for any limitation year is the compensation actually
paid or includable in gross income during such year.
Effective January 1, 1998, "Section 415 Compensation" shall include
elective deferrals as defined in Section 402(g)(3) of the Code and any payment
which is contributed or
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deferred by the Company or a Related Company at the election of an Employee and
is not includible in the gross income of the Employee by reason of Code Section
125.
1.2 - ANNUAL ADDITION LIMITATIONS.
(a) In the event that Annual Additions to all the accounts of a
Participant would exceed the limitations of Section 4.1 of the Plan, they
shall be reduced in the following priority: (i) return of After-Tax
Savings Contributions to the Participant; (ii) reduction of Before-Tax
Savings Contributions; (iii) reduction of Company Matching Contributions;
(iv) reduction of Retirement Plus Contributions.
(b) If any Related Company contributes amounts, on behalf of
Participants covered by the Plan, to other Defined Contribution Plans, the
limitation on Annual Additions provided in Section 4.1 of the Plan shall
be applied to Annual Additions in the aggregate to the Plan and such other
plans. Reduction of Annual Additions, where required, shall be
accomplished by first refunding any After-Tax Savings Contributions to
Participants, then by reducing contributions under such other plans
pursuant to the directions of the Fiduciary for administration of such
other plans or under priorities, if any, established by the terms of such
other plans, and then, if necessary, by reducing Before-Tax Savings
Contributions under the Plan.
(c) In any case where a Participant under the Plan is also a
Participant under a Defined Benefit Plan or a Defined Benefit Plan and
other Defined Contribution Plans maintained by a Related Company, the sum
of the Defined Benefit Plan Fraction and the Defined Contribution Plan
Fraction shall not exceed 1.0. Reduction of contributions to or benefits
from all plans, where required, shall be accomplished by first reducing
benefits under such other Defined Benefit Plan or plans, then by
allocating any excess in the manner set out above with respect to the
Plan, and finally by reducing contributions or allocating any excess
contributions with respect to other Defined Contribution Plans, if any;
provided, however, that adjustments necessary under this or the next
preceding paragraph may be made in a different manner and priority
pursuant to the agreement of the Committee and the administrators of all
other plans covering such Participant, provided such adjustments are
consistent with procedures and priorities prescribed by Treasury
Regulations under Section 415 of the Code.
(d) In the event the limitations of Section 4.1 of the Plan or
subsections (a) or (b) of this Appendix A are exceeded and the conditions
specified in Treasury Regulations Section 1.415-6(b)(6) are met, the
Committee may elect to apply the procedures set forth in Treasury
Regulations Section 1.415-6(b)(6).
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APPENDIX B
TOP-HEAVY PROVISIONS
The Plan shall be construed in accordance with this Appendix B.
Definitions in this Appendix B shall govern for the purposes of this Appendix B.
Any other words and phrases used in this Appendix B, however, shall have the
same meanings that are assigned to them under the Plan, unless the context
clearly requires otherwise.
1.1 - GENERAL.
This Appendix B shall be interpreted in accordance with Section 416
of the Code and the regulations thereunder.
1.2 - DEFINITIONS.
(a) The "BENEFIT AMOUNT" for any Employee means (i) in the case of
any defined benefit plan, the present value of his normal retirement
benefit, determined on the Valuation Date as if the Employee terminated on
such Valuation Date, plus the aggregate amount of distributions made to
such Employee within the five-year period ending on the Determination Date
(except to the extent already included on the Valuation Date) and (ii) in
the case of any defined contribution plan, the sum of the amounts
credited, on the Determination Date, to each of the accounts maintained on
behalf of such Employee (including accounts reflecting any nondeductible
employee contributions) under such plan plus the aggregate amount of
distributions made to such Employee within the five-year period ending on
the Determination Date. For purposes of this Section, the present value
shall be computed using a 5% interest assumption and the mortality
assumptions contained in the defined benefit plan for benefit equivalence
purposes, provided that, if more than one defined benefit plan is being
aggregated for top-heavy purposes, the actuarial assumptions which shall
be used for testing top-heaviness are those of the plan with the lowest
interest assumption, provided further that if the lowest interest
assumption is the same for two or more plans, the actuarial assumptions
used shall be that of the plan with the greatest value of assets on the
applicable date.
(b) "COMPANY" means any company (including unincorporated
organizations) participating in the Plan or plans included in the
"aggregation group" as defined in this Appendix B; provided, however, if
an Employee performs no services for five years and then performs
services, such Employee's total Benefit Amount shall be taken into
account.
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(c) "DETERMINATION DATE" means the last day of the preceding Plan
Year or, in the case of the first Plan Year of the Plan, the last day of
the Plan Year.
(d) "EMPLOYEES" means employees, former employees, beneficiaries,
and former beneficiaries who have a Benefit Amount greater than zero on
the Determination Date.
(e) "KEY EMPLOYEE" means any Employee who, during the Plan Year
containing the Determination Date or during the four preceding Plan Years,
is:
(1) one of the ten Employees of a Company having annual
compensation from such Company of more than the limitation in effect
under Section 415(c)(1)(A) of the Code and owning (or considered as
owning within the meaning of Section 318 of the Code) both a more
than 1/2% interest and the largest interest in such Company (if two
Employees have the same interest the Employee having the greater
annual compensation from the Company shall be treated as having a
larger interest);
(2) a 5% owner of a Company;
(3) a 1% owner of a Company who has an annual compensation
above $150,000; or
(4) an officer of a Company having an annual compensation
greater than 50% of the amount in effect under Section 415(b)(1)(A)
of the Code for any such Plan Year (however, no more than the lesser
of (i) 50 employees or (ii) the greater of 3 employees or 10% of the
Company's employees shall be treated as officers). For purposes of
determining the number of employees taken into account under this
Section 1.2(e)(4), employees described in Section 414(q)(8) of the
Code shall be excluded.
This definition shall be interpreted in accordance with
Section 416(i) of the Code and the regulations thereunder and such
rules are hereby incorporated by reference. The term "Key Employee"
shall not include any officer or employee of an entity referred to
in Section 414(d) of the Code. For the purpose of this subsection,
"compensation" shall mean compensation as defined in Section
414(q)(4) of the Code and shall be determined without regard to
Sections 125, 402(a)(8), 402(h)(1)(B) or, in the case of employer
contributions made pursuant to a salary reduction agreement, Section
403(b).
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(f) A "NON-KEY EMPLOYEE" means an Employee who is not a Key
Employee.
(g) "VALUATION DATE" means the first day (or such other date which
is used for computing plan costs for minimum funding purposes) of the
12-month period ending on the Determination Date.
(h) A "YEAR OF SERVICE" shall be calculated using the Plan rules
that normally apply for determining vesting service.
1.3 - TOP-HEAVY DEFINITION.
The Plan shall be top-heavy for any Plan Year if, as of the
Determination Date, the "top-heavy ratio" exceeds 60%. The top-heavy ratio is
the sum of the Benefit Amounts for all employees who are Key Employees divided
by the sum of the Benefit Amounts for all Employees. For purposes of this
calculation only, the following rules shall apply:
(a) The Benefit Amounts of all Non-Key Employees who were Key
Employees during any prior Plan Year shall be disregarded.
(b) The Benefit Amounts of all employees who have not performed
any services for any Company at any time during the five-year period
ending on the Determination Date shall be disregarded.
(c) (i) Required Aggregation. This calculation shall be made by
aggregating any plans, of the Company or a Related Company, qualified
under Section 401(a) of the Code in which a Key Employee participates or
which enables the Plan to meet the requirements of Section 401(a)(4) or
410 of the Code; all plans so aggregated constitute the "aggregation
group."
(ii) Permissive Aggregation. The Company may also aggregate
any such plan to the extent that such plan, when aggregated with
this aggregation group, continues to meet the requirements of
Section 401(a)(4) and Section 410 of the Code.
If an aggregation group includes two or more defined benefit
plans, the actuarial assumptions used in determining an Employee's
Benefit Amount shall be the same under each defined benefit plan and
shall be specified in such plans. The aggregation group shall also
include any terminated plan which covered a
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Key Employee and which was maintained within the five-year period
ending on the Determination Date.
(d) This calculation shall be made in accordance with Section 416
of the Code (including 416(g)(3)(B) and (g)(4)(A)) and the regulations
thereunder and such rules are hereby incorporated by reference. For
purposes of determining the accrued benefit of a Non-Key Employee who is a
Participant in a defined benefit plan, this calculation shall be made
using the method which is used for accrual purposes for all defined
benefit plans of the Company, or if there is no such method, as if such
accrual benefit accrued not more rapidly than the slowest accrual rate
permitted under Section 411(b)(1)(C) of the Code.
1.4 - VESTING.
Notwithstanding the vesting provisions of the Plan, if the Plan is
top-heavy for any Plan Year, any Participant who completes one Hour of Service
during any day of such Plan Year or any subsequent Plan Year and who terminates
during any day of such Plan Year or any subsequent Plan Year shall be entitled
to a vested benefit which is at least equal to the product of (A) the benefit
such Participant would receive under the Plan if he was 100% vested on the date
of such termination times (B) the percentage shown below:
<TABLE>
<CAPTION>
Number of Completed
Years of Service Percentage
------------------- ----------
<S> <C>
less than 3 0%
3 or more 100%
</TABLE>
Such benefit shall be payable in accordance with the provisions of the Plan
regarding payments to terminated Participants.
Notwithstanding the preceding paragraph, if the Plan is no longer
top-heavy in a Plan Year following a Plan Year in which it was top-heavy, a
Participant's vesting percentage shall be computed under the vesting schedule
that otherwise exists under the Plan. However, in no event shall a Participant's
vested percentage in his accrued benefit be reduced. In addition, a Participant
shall have the option of remaining under the vesting schedule set forth in this
Section if he has completed three Years of Service. The period for exercising
such option shall begin on the first day of the Plan Year for which the Plan is
no longer top-heavy and shall end 60 days after the later of such first day or
the day the Participant is issued written notice of such option by the Company
or the Committee.
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1.5 - MINIMUM BENEFITS OR CONTRIBUTIONS, COMPENSATION
LIMITATIONS AND SECTION 415 LIMITATIONS.
If the Plan is top-heavy for any Plan Year, the following provisions
shall apply to such Plan Year:
(a) (1) Except to the extent not required by Section 416 of the
Code or any other provision of law, notwithstanding any other provision of
the Plan, if the Plan and all other plans which are part of the
aggregation group are defined contribution plans, each Participant (and
any other Employee required by Section 416 of the Code) other than Key
Employees shall receive an allocation of employer contributions and
forfeitures from a plan which is part of the aggregation group at least
equal to 3% the lesser of: (A) or (B) the largest percentage allocated to
any Key Employee for the Plan Year) of such Participant's compensation
(not in excess of $150,000, adjusted at the same time and in the same
manner as under Section 415(d) of the Code) for such Plan Year (the
"defined contribution minimum"). For purposes of this subsection, salary
reduction contributions on behalf of a Key Employee must be taken into
account. For purposes of this subsection, a non-Key Employee shall be
entitled to a contribution if he is employed on the last day of the Plan
Year (i) regardless of his level of compensation, (ii) without regard to
whether he has made any mandatory contributions required under the Plan,
and (iii) regardless of his Hours of Service (or the equivalent) for the
accrual computation period.
(2) Except to the extent not required by Section 416 of the
Code or any other provision of law, notwithstanding any other
provisions of the Plan, if the Plan or any other plan which is part
of the aggregation group is a defined benefit plan each Participant
who is a participant in any such defined benefit plan (who is not a
Key Employee) who accrues a full Year of Service during such Plan
Year shall be entitled to an annual normal retirement benefit from a
defined benefit plan which is part of the aggregation group which
shall not be less than the product of (i) the employees average
compensation for the five consecutive years when the employee had
the highest aggregate compensation and (ii) the lesser of 2% per
Year of Service or 20% (the "defined benefit minimum"). A non-Key
Employee shall not fail to accrue a benefit merely because he is not
employed on a specified date or is excluded from participation
because (i) his compensation is less than a stated minimum or (ii)
he fails to make mandatory employee contributions. For purposes of
calculating the defined benefit minimum, (i) compensation shall not
include compensation in Plan Years after the last Plan Year in which
the Plan is top-heavy and (ii) a Participant shall not receive a
Year of Service in any Plan Year before January 1, 1984 or in any
Plan Year in which the Plan is not top-heavy. This defined benefit
minimum shall be expressed as a life annuity (with no ancillary
benefits) commencing at normal retirement age. Benefits paid in any
other form or time shall be the actuarial equivalent (as provided in
the plan for retirement benefit equivalence purposes) of
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<PAGE> 66
such life annuity. Except to the extent not required by Section 416
of the Code or any other provisions of law, each Participant (other
than Key Employees) who is not a participant in any such defined
benefit plan shall receive the defined contribution minimum (as
defined in paragraph (a)(1) above).
(3) If a non-Key Employee is covered by plans described in
both paragraphs (1) and (2) above, he shall be entitled only to the
minimum described in paragraph (1), except that for the purpose of
paragraph (1) "3%" shall be replaced by 5%. Notwithstanding the
preceding sentence, if the accrual rate under the plan described in
(2) would comply with this Section 1.5 absent the modifications
required by this Section, the minimum described in paragraph (1)
above shall not be applicable.
(b) For purposes of this Section, "compensation" shall mean all
earnings included in the Employee's Form W-2 for the calendar year that
ends within the Plan Year, not in excess of $150,000, adjusted at the same
time and in the same manner as under Section 415(d) of the Code.
(c) (1) Unless the Plan qualifies for an exception under Section
1.5(c)(2), "1.O" shall be substituted for "1.25" in the definitions of
Defined Benefit Plan Fraction and Defined Contribution Plan Fraction used
in Appendix A to the Plan.
(2) A plan qualifies for an exception from the rule of
Section 1.5(c)(1) if the Benefit Amount of all Employees who are Key
Employees does not exceed 90% of the sum of the Benefit Amounts for
all Employees and one of the following requirements is met:
(A) A defined benefit minimum of 3% per Year of
Service (up to 30%) is provided;
(B) For Participants covered only by a defined
contribution plan, a defined contribution minimum of 4% is
provided;
(C) For Participants covered by both types of plans,
benefits from the defined contribution minimum are comparable
to the 3% defined benefit minimum;
(D) The plan provides a floor offset where the floor
is a 3% defined benefit minimum; or
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(E) A defined contribution minimum of 7-1/2% of
compensation is provided for any non-Key Employee who is
covered under both a defined benefit plan and a defined
contribution plan (each of which is top-heavy) of a Company.
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APPENDIX C
CREDITING OF SERVICE WITH PREDECESSOR EMPLOYERS
SECTION 1.
The purpose of this Appendix C is to set forth conditions under
which service of an individual with an entity or business unit which is acquired
by the Company shall be counted for purposes of eligibility and vesting under
the Plan, notwithstanding the fact that such service was performed with the
entity or business unit prior to its acquisition by the Company. An entity or
business unit which is acquired by the Company shall be referred to in this
Appendix C as a "Prior Employer." Service with a Prior Employer shall not be
credited for any purpose under the Plan, unless the Prior Employer is included
in Section 2 of this Appendix C. Under no circumstances will a contribution to
the Plan be made on account of service with a Prior Employer prior to the date
of Company acquisition. The Committee may amend Section 2 by adding additional
Prior Employers. Any such changes shall be considered an amendment to the Plan,
but approval of the Board of Directors shall not be required for such amendment.
In determining whether a Prior Employer shall be added to Section 2, the
Committee is not acting in a fiduciary capacity.
SECTION 2.
The following entities are Prior Employers for which service prior
to date of Company acquisition shall be counted for purposes of eligibility and
vesting under the Plan:
<TABLE>
<CAPTION>
Approximate Date of
Prior Employer Acquisition by Company
- -------------- ----------------------
<S> <C>
Porton Instruments, Inc. May 31, 1991
Hybritech Incorporated January 1, 1996
Genomyx Corporation October 21, 1996
Sagian Incorporated December 3, 1996
Sanofi Diagnostics Pasteur, Inc. May 1, 1997
Coulter Corporation October 31, 1997
</TABLE>
65
<PAGE> 69
APPENDIX D
SPECIAL PROVISIONS FOR FORMER PARTICIPANTS IN THE
HYBRITECH INCORPORATED EMPLOYEE SAVINGS PLAN
1. PLAN MERGER.
Effective as of the date specified by the officers of the Company,
the Hybritech Incorporated Employee Savings Plan ("Hybritech Plan") merged with
the Plan. The Plan is the survivor of the merger. This Appendix D sets forth
certain provisions applicable to the account balances transferred from the
Hybritech Plan to the Plan as a result of the merger.
2. HYBRITECH PLAN ACCOUNTS.
Accounts which were formerly held in the Hybritech Plan prior to the
merger are referred to in this Appendix D as follows:
a. "Pre-1991 Accounts," which consist of the following:
(1) "Salary Deferral Account." The amounts allocated to the
Participant's Salary Deferral Account under the Hybritech Plan as of
December 31, 1990 and the earnings thereon through the date of Plan
merger;
(2) "Company Contributions Account." The amounts allocated
to the Participant's Company Contributions Account under the
Hybritech Plan as of December 31, 1990 and the earnings thereon
through the date of Plan merger;
(3) "Deductible Contributions Account." The amounts
allocated to the Participant's Deductible Contributions Account
under the Hybritech Plan as of December 31, 1990 and the earnings
thereon through the date of Plan merger;
(4) "Non-deductible Contributions Account." The amounts
allocated to the Participant's Non-deductible Contributions Account
under the Hybritech Plan as of December 31, 1990 and the earnings
thereon through the date of Plan merger; and
(5) "Rollover Contributions Account." The amounts allocated
to the Participant's Rollover Contributions Account under the
Hybritech Plan as of December 31, 1990 and the earnings thereon
through the date of Plan merger.
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<PAGE> 70
b. "Post-1990 Accounts," which consist of the following:
(1) "Salary Reduction Account." The amounts allocated to the
Participant as Salary Reduction Contributions to the Hybritech Plan
after December 31, 1990 and before the date of the merger, and the
earnings thereon through the date of Plan merger;
(2) "Employer Profit-Sharing Account." The Employer
Contributions allocated to the Participant under the Hybritech Plan
after December 31, 1990 and before the date of merger, and the
earnings thereon through the date of Plan merger; and
(3) "ESOP Account." The amounts allocated to the
Participant's ESOP Account under the Hybritech Plan prior to the
date of the merger, and the earnings thereon through the date of
Plan merger.
The Plan shall separately account for the Accounts described above.
3. WITHDRAWALS.
For purposes of the withdrawal, loan and payment provisions of the
Plan: (i) Deductible Contributions Accounts and Non-deductible Contributions
Accounts are withdrawable to the same extent as After-Tax Savings Accounts under
the Plan; (ii) Rollover Contributions Accounts are withdrawable to the same
extent as Rollover Accounts under the Plan; (iii) Company Contributions
Accounts, Employer Profit-Sharing Contributions Accounts and ESOP Accounts are
withdrawable to the same extent as Company Matching Accounts under the Plan; and
(iv) Salary Deferral Accounts and Salary Reduction Accounts are withdrawable to
the same extent as Before-Tax Savings Accounts under the Plan.
4. SPECIAL RULES FOR PRE-1991 ACCOUNTS.
With respect only to the amount credited as of the date of the Plan
merger to the Pre-1991 Accounts of a Participant whose total account balance
exceeds $5,000, the following life annuity distribution options are available in
addition to the distributions provisions generally available under the Plan. The
amount credited as of the date of Plan merger to a Participant's Pre-1991
Accounts shall be referred to as the "Annuity-Eligible Amount."
The life annuity is in the amount which is payable by using the
portion of the Participant's Pre-1991 Accounts up to the Annuity-Eligible Amount
to purchase an annuity
67
<PAGE> 71
contract from an insurance company selected by the Committee. The amount of the
annuity payments will be determined according to the value of the Participant's
Annuity-Eligible Amount and the annuity contract with the insurance company. The
forms of annuity available shall be a single life annuity which provides for
payments during the life of the Participant, with no payments after the
Participant dies, and a Qualified Joint and Survivor Annuity, as defined below.
The automatic form of benefit payments for the Annuity-Eligible Amount for a
Participant whose total vested account exceeds $5,000 shall be the Qualified
Joint and Survivor Annuity. A Participant described in the previous sentence is
a "Pre-1991 Participant." Upon the death (prior to commencement of benefits) of
a Pre-1991 Participant who has a Spouse at the time of death, the Spouse's death
benefit shall be provided in the form a Qualified Preretirement Survivor
Annuity, unless the Spouse waives the Qualified Preretirement Survivor Annuity.
The Participant may waive the automatic form of benefit (with the consent of the
Participant's spouse, if any) according to the waiver rules set forth in Section
5 of this Appendix D.
All withdrawals shall first be made from a Participant's Post-1990
Accounts, and then from the contributions made on the Participant's behalf after
the merger, and then from the Participant's Pre-1991 Accounts. No portion of a
Participant's Pre-1991 Accounts shall be used to secure a loan. No portion of a
Participant's Pre-1991 Accounts shall be available as a loan, and all of a
Participant's Pre-1991 Accounts shall be excluded in calculating the loan
amounts available under the Plan.
5. QJSA AND QPSA REQUIREMENTS FOR PRE-1991 ACCOUNTS.
a. QJSA Notice. The Committee shall provide each Pre-1991
Participant, within a reasonable period prior to the commencement of
benefits, a written explanation of: (i) the terms and conditions of a
Qualified Joint and Survivor Annuity; (ii) the Participant's right to make
and the effect of an election to waive the Qualified Joint and Survivor
Annuity form of benefit; (iii) the rights of a Participant's Spouse; and
(iv) the right to make, and the effect of, a revocation of a previous
election to waive the Qualified Joint and Survivor Annuity.
b. QJSA Waiver. A Pre-1991 Participant may waive a Qualified
Joint and Survivor Annuity pursuant to a Qualified Election within the
90-day period ending on the date benefit payments will commence.
c. QPSA Notice.
(1) The Committee shall provide each Pre-1991 Participant
within the period beginning on the first day of the Plan Year in
which the Participant attains age 32 and ending with the close of
the Plan Year preceding the Plan Year in which the Participant
attains age 35, a written explanation of the Qualified
68
<PAGE> 72
Preretirement Survivor Annuity in such terms and in such manner as
would be comparable to the explanation provided for meeting the
requirements of above applicable to a Qualified Joint and Survivor
Annuity.
(2) If a Pre-1991 Participant enters the Plan after he has
attained age 32, the Committee shall provide notice no later than
the end of the three year period commencing with the first day of
the first Plan Year for which the individual is a Participant.
(3) If a Pre-1991 Participant has a Severance from Service
prior to age 32, the Committee shall provide notice at the time of
such Severance from Service or within one year after such Severance
from Service.
d. QPSA Waiver. A Pre-1991 Participant may waive a Qualified
Preretirement Survivor Annuity pursuant to a Qualified Election within the
Election Period.
e. Definitions.
(1) Election Period: The period which begins on the first
day of the Plan Year in which the Participant attains age 35 and
ends on the date of Participant's death. If a Participant has a
Severance from Service prior to the first day of the Plan Year in
which age 35 is attained, with respect to his accounts as of the
Severance from Service, the Election Period shall begin on the date
the Severance from Service occurs.
(2) Earliest Retirement Age: The earliest date on which,
under the Plan, the Participant could elect to receive retirement
benefits.
(3) Qualified Election: A written waiver of a Qualified
Joint and Survivor Annuity or a Qualified Preretirement Survivor
Annuity, consented to by the Participant's Spouse, which consent
must be witnessed by a Plan representative or notary public. Such
consent must acknowledge any specific non-spouse Beneficiary,
including any class of beneficiaries or any contingent
beneficiaries. If the Participant establishes to the satisfaction of
a Plan representative that such written consent may not be obtained
because there is no Spouse or the Spouse cannot be located, a waiver
will be deemed a Qualified Election. A written consent will be valid
only as to the Spouse who signs the consent and not as to any other
69
<PAGE> 73
Spouse. Notwithstanding the above in the case of a waiver which is
not signed by a Spouse but is deemed a Qualified Election, the
election shall be valid only as to the designated Spouse and not as
to any other Spouse. Revocation of a prior waiver may be made by a
Participant without the consent of the Spouse at any time before the
commencement of benefits. The number of revocations shall not be
limited. Any new waiver or change of Beneficiary will require a new
spousal consent. Any Spouse's consent shall be irrevocable. A
partial or total distribution may not be made after the annuity
starting date, regardless of the present value of the
non-forfeitable accrued benefit, without a consent in the form a
Qualified Election.
(4) Qualified Joint and Survivor Annuity: An annuity for the
life of the Participant with a survivor annuity for the life of the
Spouse which is not less than 50% and not more than 100% of the
amount of the annuity which is payable during the joint lives of the
Participant and the Spouse and which is the amount of benefit which
can be purchased with the Participant's vested Pre-1991 Account. In
the case of an unmarried Participant, a Qualified Joint and Survivor
Annuity shall mean an annuity for the life of the Participant.
(5) Qualified Preretirement Survivor Annuity: An annuity for
the life of the surviving Spouse and which is the amount of benefit
which can be purchased with the Participant's vested Pre-1991
Account. Following the Participant's death, the Spouse may elect a
lump sum distribution. The surviving Spouse shall have the right to
direct that payments under the Qualified Preretirement Survivor
Annuity commence within a reasonable time after the Participant's
death.
(6) Spouse (surviving Spouse): The Spouse or surviving
Spouse of the Participant, provided that a former spouse will be
treated as the Spouse or surviving Spouse to the extent provided
under a qualified domestic relations order as described in Section
414(p) of the Code.
f. No Loans From Pre-1991 Accounts. No portion of a Pre-1991
Account may be borrowed from the Plan, and no portion of a Pre-1991
Account may serve as security for a loan from the Plan. The loan amounts
available under Section 9.11 shall be calculated by disregarding a
Participant's Pre-1991 Account.
70
<PAGE> 74
APPENDIX E
SPECIAL PROVISIONS FOR FORMER PARTICIPANTS IN THE
SANOFI EMPLOYEE SAVINGS PLAN
1. COVERED EMPLOYEES SUBJECT TO THIS APPENDIX.
Each Covered Employee who was an employee of Sanofi Diagnostics
Pasteur, Inc. ("Sanofi") immediately prior to the Company's acquisition of the
ACCESS product line from Sanofi (the "Acquisition") is subject to the provisions
of this Appendix E (a "Former Sanofi Employee").
2. VESTING AND SERVICE.
With respect to a Former Sanofi Employee, Years of Service shall
include such employee's period of employment with Sanofi.
3. PLAN LOANS.
Pursuant to the terms of the Acquisition, certain Former Sanofi
Employees may roll over their account balances under the Sanofi, Inc. Savings
and Investment Plan (the "Sanofi Plan") to the Plan, subject to Section 3.6 of
the Plan. Upon such a rollover, if the Former Sanofi Employee has a loan or
loans outstanding under the Sanofi Plan, such loan(s) shall become a Plan
loan(s), subject to the provisions of Section 9.11 of the Plan (each a "Former
Sanofi Loan"). Notwithstanding any other provision of the Plan to the contrary,
a Former Sanofi Employee may, at any one time, have more than one Former Sanofi
Loan outstanding under the Plan. However, no Participant may receive a loan
under Section 9.11 of the Plan until all outstanding Former Sanofi Loans have
been paid in full. Former Sanofi Loans may be prepaid only if all Former Sanofi
Loans will be paid in full upon receipt of such payment (partial prepayments are
not permitted and full pre-payment of one Former Sanofi Loan is not permitted if
any other Former Sanofi Loan remains outstanding).
71
<PAGE> 75
APPENDIX F
SPECIAL PROVISIONS FOR FORMER PARTICIPANTS IN THE
COULTER PLAN
1. COVERED EMPLOYEES SUBJECT TO THIS APPENDIX.
Effective as of October 31, 1997 (the "Acquisition Date") Beckman
Instruments, Inc. acquired Coulter Corporation, and subsequently was renamed
Beckman Coulter, Inc. (the "Company"). Effective on or about September 1, 1998
(the "Merger Date"), the Coulter Plan merged with the Plan. The Plan is the
survivor of the merger. From the Acquisition Date to the Merger Date, the
Company maintained the Coulter Plan as well as the Beckman Instruments, Inc.
Savings and Investment Plan. To the extent set forth in this Appendix F, service
credited under the Coulter Plan will be credited under the Plan.
Each Covered Employee who as of October 31, 1997 was classified by
the Company as an employee rendering services to Coulter Corporation is subject
to the provisions of this Appendix F (a "Coulter Employee"). With respect to
persons not employed by the Company as of October 31, 1997, if the person's
first Hour of Service after October 31, 1997 is performed at a facility,
location or operation determined by the Company to be primarily related to the
portion of the Company's business acquired through the acquisition of Coulter
Corporation, that person shall be a "Coulter Employee" for purposes of this
Appendix F. The initial classification of an Employee as a "Coulter Employee"
shall continue notwithstanding any change to the Employee's facility, location
or operation.
2. VESTING AND SERVICE.
With respect to a Coulter Employee, Years of Service and Period of
Service shall include such employee's period of employment with Coulter
Corporation ("Coulter") prior to the Acquisition Date.
3. PLAN LOANS.
If a Coulter Employee has a loan or loans outstanding under the
Coulter Plan, such loan(s) shall become a Plan loan(s), subject to the
provisions of Section 9.11 of the Plan (each a "Former Coulter Loan").
Notwithstanding any other provision of the Plan to the contrary, a Coulter
Employee may, at any one time, have more than one Former Coulter Loan
outstanding under the Plan. However, no Coulter Employee may receive a new loan
under Section 9.11 of the Plan until all outstanding Former Coulter Loans have
been paid in full. A Former Coulter Loan (i) is not subject to the $1,000
limitation contained in Section 9.11(b)(2), and (ii) shall not automatically
become payable in full upon a Coulter Employee's Severance from Service Date in
accordance
72
<PAGE> 76
with Section 9.11(c)(3)(A) but shall be repaid in accordance with the original
terms of such loan. Amounts credited to a Coulter Employee's "Pension Plan
Account" and "Retirement Plus Account" under the Coulter Plan shall not be
available for loans pursuant to Section 9.11.
4. INVESTMENTS. The Committee shall adopt such rules as it deems appropriate
for the transfer of "Investment Accounts" under the Coulter Plan to the Plan's
investments. A Coulter Employee shall have the right and obligation to designate
in which of the Investment Funds his Retirement Plus Contributions Account will
be invested, pursuant to the procedures established by Section 3.7(b) and (c),
but excluding paragraph (b)(ii).
5. VESTING.
Each Coulter Employee who has not previously forfeited the unvested
portion of his "Matching Account" under the Coulter Plan shall become fully
vested in such account as of August 31, 1998.
6. WITHDRAWALS.
For purposes of Article VI of the Plan:
(1) Amounts credited to a Coulter Employee's "Savings Account"
under the Coulter Plan shall be treated as amounts credited to his
Before-Tax Savings Account on or before August 31, 1998.
(2) Amounts credited to a Coulter Employee's "After-Tax Account"
under the Coulter Plan shall be treated as amounts credited to his
After-Tax Savings Account on or before August 31, 1998.
(3) Amounts credited to a Coulter Employee's "Matching Account"
under the Coulter Plan shall be treated as amounts credited to his Company
Matching Account on or before August 31, 1998.
(4) Amounts credited to a Coulter Employee's "Rollover Account"
under the Coulter Plan shall be treated as amounts credited to his
Rollover Account on or before August 31, 1998.
(5) Amounts credited to a Coulter Employee's "Pension Plan
Account" and "Retirement Plus Account" under the Coulter Plan shall only
be available for distribution
73
<PAGE> 77
after the Coulter Employee's Severance from Service according to the
provisions of Section 6.6 and 6.10(b) of the Plan. Such amounts shall not
be available for withdrawal pursuant to Section 6.1, 6.2, 6.3, 6.4, or 6.5
of the Plan. Such amounts shall be distributed at the same time and, to
the extent feasible, in the same manner as the remainder of the
Participant's vested interest in his Accounts.
7. RETIREMENT PLUS CONTRIBUTIONS.
The Committee shall maintain a "Retirement Plus Contributions
Account" under the Plan for each Coulter Employee. Commencing September 1, 1998,
as of the end of each calendar quarter (ending March 31, June 30, September 30,
and December 31) in each Plan Year, the Company shall make a "Retirement Plus
Contribution" to the Retirement Plus Contributions Account of each Coulter
Employee who, as of the end of that quarter (i) is a Covered Employee and (ii)
has completed a twelve month Period of Service with the Company or a Related
Company. Such contribution shall be equal to 3% of that Employee's Plan
Compensation for that quarter.
In addition, for each Coulter Employee who was hired on or before
November, 1995 and who was employed by the Coulter Corporation on March 31,
1996, the Company shall make the quarterly contribution shown in the following
table to the Retirement Plus Contributions Account of each such Coulter Employee
who is a Covered Employee as of the end of that quarter. Such quarterly
contributions shall be based on the Participant's Plan Compensation plus Excess
Compensation for that calendar quarter and based on the Participant's age on the
last day of the calendar quarter for which the contribution is made; however,
such contribution shall be reduced by the amount of the 3% contribution made
pursuant to the first paragraph of this Section 6. For purposes of this
paragraph, "Excess Compensation" shall mean Plan Compensation which exceeds the
Social Security wage base for FICA purposes in effect at the beginning of the
Plan Year.
<TABLE>
<CAPTION>
Plan Excess
Participant's Age Compensation + Compensation
----------------- ------------ ------------
<S> <C> <C>
40-44 3.0% 1.0%
45-49 4.5% 2.0%
50-54 6.0% 2.5%
55-59 7.0% 3.0%
60 & Older 9.0% 4.0%
</TABLE>
8. VESTING OF RETIREMENT PLUS CONTRIBUTIONS.
The interest of each Coulter Employee in his Retirement Plus
Contributions Account shall vest and become nonforfeitable up to a maximum of
100% as follows:
74
<PAGE> 78
<TABLE>
<CAPTION>
Years of Service Vested Percentage
---------------- -----------------
<S> <C>
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more years 100%
</TABLE>
A Coulter Employee shall also become 100% vested if, while an
Employee, he attains his Normal Retirement Age, incurs a Disability, or dies.
When a Coulter Employee ceases to participate, such portion of his
Retirement Plus Contributions Account as of the day of the cessation as is not
vested shall be forfeited and used to reduce Company Contributions as soon as
administratively practicable after the date he receives distribution of his
Accounts referred to in Section 5.1 of the Plan. If a former Participant who has
suffered a forfeiture on account of his termination of participation in
accordance with the preceding sentence is reemployed as an Employee by the
Company before incurring an uninterrupted six-year Period of Severance and
repays to the Plan all money distributed from his Accounts prior to 60 months
after such reemployment, any amounts so forfeited (unadjusted for any increase
or decrease in the value of Trust assets subsequent to the date on which the
forfeiture occurred) shall be reinstated to the Participant's Retirement Plus
Contributions Account within a reasonable time after such repayment. Such
reinstatement shall be made from forfeitures of Participants occurring during
the Plan Year in which such reinstatement occurs to the extent such forfeitures
are attributable to contributions by the same Company (or a Company that is a
Related Company to that Company) and earnings on such contributions; provided,
however, if such forfeitures are not sufficient to provide such reinstatement,
the reinstatement shall be made from the current year's contribution by the
Company to the Plan.
75
<PAGE> 1
EXHIBIT 4.2
T. ROWE PRICE TRUST COMPANY
QUALIFIED PLAN TRUST AGREEMENT
This TRUST AGREEMENT is made this 26 day of August, 1998, by and between
BECKMAN COULTER, INC., hereinafter referred to as the "EMPLOYER," and T. ROWE
PRICE TRUST COMPANY, a Maryland limited trust company, hereinafter referred to
as the "TRUSTEE."
WITNESSETH
WHEREAS, the Employer has adopted the BECKMAN COULTER, INC. SAVINGS PLAN,
a defined contribution plan intended to be a qualified plan under Section 401(a)
of the Internal Revenue Code ("CODE"), which plan is hereinafter referred to as
the "PLAN," for the benefit of all those individuals eligible to participate
under the Plan terms (including beneficiaries and alternate payees), hereinafter
referred to individually as "PARTICIPANT" and collectively as "PARTICIPANTS;"
and
WHEREAS, the Plan provides that the assets thereof be held, in trust, by a
trustee, subject to the provisions of a trust agreement to be entered into
between the Employer and a trustee or trustees;
NOW THEREFORE, the Employer and the Trustee agree as follows:
ARTICLE I - TRUST FUND
1.1 Trust. The Employer hereby establishes with the Trustee, a trust account
or accounts ("ACCOUNTS") consisting of such sums of U.S. currency and such other
property acceptable to the Trustee as shall from time to time be contributed to,
paid or delivered to the Trustee pursuant to this Trust Agreement at the address
specified by the Trustee. All such money and property, all investments and
reinvestments made therewith and proceeds thereof, less any payments or
distributions made by the Trustee pursuant to the terms of this Trust Agreement
are referred to herein as the "TRUST." The Trust shall be held by the Trustee in
accordance with the express provisions of this instrument and the requirements
of law. As provided for in Section 403(b) of the Employee Retirement Income
Security Act of 1974 ("ERISA"), this Trust Agreement excludes any Plan assets
held by any insurance company. The Trust is a continuation of the trust
previously established under the Plan. The Trustee is the successor to the
previous trustee.
1.2 Custody of Trust Assets. The Trustee is authorized to: (a) hold property
hereunder in bearer form or in its own name or the name of its nominee; (b)
combine certificates representing investments of the Trust with certificates of
the same issue held by the Trustee or other fiduciaries; (c) hold securities in
definitive form on a segregated or nonsegregated basis or with a correspondent
bank or depository (or nominee of such bank or depository); and (d) hold
obligations of the United States Government and agencies thereof on a book entry
basis at the appropriate Federal Reserve bank, but the books and records of the
Trustee shall, at all times, show that all such property and securities are held
in trust. The Trustee shall not hold any property or securities hereunder in the
same account as any individual property of the Trustee. The Trustee is also
authorized to appoint a subcustodian to perform any of the above functions;
provided, however, that the Trustee shall not serve as custodian or appoint a
custodian for any plan assets,
<PAGE> 2
as defined in ERISA and the regulations issued thereunder, where such assets are
managed by an Investment Manager.
1.3 Limitations of Trustee's Duties. With respect to its duties hereunder, the
Trustee is a nondiscretionary trustee and shall have no duty to: (a) determine
or enforce payment of any contribution due under the Plan; (b) inquire into the
accuracy of any contribution; (c) determine the adequacy of the funding policy
adopted by the Employer to meet its obligations under the Plan; (d) look into
the propriety of any investment or distribution made under the Plan; or (e)
ensure the qualification of the Plan under the Code. The Trustee shall not be
deemed to be the administrator or the sponsor of the Plan as defined in Sections
3(16)(A) or 3(16)(B) respectively, of ERISA.
ARTICLE II - ACCOUNTS
2.1 Establishing Accounts. The Trustee shall open and maintain an Account for
the Plan. Upon receipt of written instructions from the Employer, T. Rowe Price
Retirement Plan Services ("RPS") also shall open and maintain such Participant
subaccounts ("SUBACCOUNTS") as the Employer or the Plan Committee ("COMMITTEE")
may direct. The Employer or the Committee shall give written instructions to the
Trustee specifying the Participants' Subaccounts to which contributions and
forfeitures are to be credited, and the amounts of such contributions and
forfeitures which are to be credited to such Accounts and subaccounts.
2.2 Charges Against the Trust. Upon receipt of written instructions from the
Employer or the Committee, the Trustee shall charge the appropriate Account or
Subaccount of the Trust for any withdrawals or distributions made under the
Plan, for any forfeiture which may be required under the Plan of unvested
interests attributable to Employer contributions and for any fees which may be
charged against the Trust assets. Excluding those fees set forth in this Trust
Agreement and the Plan's Recordkeeping Agreement, the Employer or the Committee
shall follow the procedures in Exhibit A with respect to expenses to be charged
to the Trust.
2.3 Custody of Participant Loan Documents. The Trustee shall retain custody of
original executed documents evidencing loans to Participants made after
September 1, 1998. The prior trustee shall provide the Trustee with
documentation evidencing currently outstanding loans which loan documents were
executed prior to September 1, 1998. The Trustee shall retain custody only for
those loan documents which have been provided to the Trustee by the prior
trustee. The Employer or the prior trustee shall provide the Trustee with a list
of all outstanding loans made to Participants prior to September 1, 1998.
ARTICLE III - INVESTMENT OF TRUST ASSETS
3.1 Investment of Trust Assets. The Trustee shall not have any discretion, and
is specifically prohibited from having or exercising any discretion, with
respect to the investment of Trust assets. Except as provided in Section 3.5
(Participant Directed Investments) hereof, the Committee shall be the "named
fiduciary" and shall be solely responsible for giving the Trustee directions as
to the investment and disposition of the Trust assets, including, but not
limited to guaranteed investment contracts, bank investment contracts, synthetic
investment contracts, certificates of deposit and insurance company annuity
contracts. The Trustee, unless it has knowledge that an investment direction
constitutes a violation of ERISA or any other applicable law, shall be entitled
to rely on such direction, and the Trustee shall not
- 2 -
<PAGE> 3
review any securities or other assets or make suggestions with respect to the
investment, reinvestment, retention or disposition of any Trust assets. The
Trustee shall invest and reinvest the Trust's assets only as directed and free
from any limitations imposed by state law on investments of trust funds and
without distinction between income and principal in any property, including, but
not limited to, common and preferred stocks, governmental obligations, equipment
trust certificates, participation certificates, investment companies or trusts
(including any investment company or trust which has an investment management or
other agreement with an affiliate of the Trustee), collateral trust notes,
savings and time deposits, commercial paper (including participation in variable
amount notes), leasebacks, mortgages and other interests in realty, corporate
bonds, debentures, notes and other evidences of indebtedness, secured or
unsecured, non-income producing securities or property, options and
participation in any group or common trust funds, including any such funds held
or maintained by the Trustee or an affiliate of the Trustee, for commingling
assets of participating trusts and exempt from Federal income tax, including but
not limited to, any group or common trust fund which is qualified under the
provisions of Section 401(a) of the Code or any successor provisions thereto
(the instrument of trust creating any such qualified group or common trust fund,
to the extent of the Trust's equitable share thereof, being adopted hereby).
3.2 Investment and Insurance Contracts. In the event that the Trust holds
assets consisting of investment or insurance contracts selected by the Committee
or its designee other than T. Rowe Price Stable Asset Management ("CONTRACTS"),
the Trustee shall not be liable for the refusal or inability of any insurance
company or financial institution to issue, change, pay proceeds or made payments
due under any Contract; for the form, terms, genuineness, validity or
sufficiency of any Contract; or for any delay in payment or proceeds due under
any Contract. The Trustee shall not be responsible for evaluating or monitoring
the financial condition or status of any financial institution or insurance
company issuing any such Contract which the Committee directs the Trustee to
hold or to purchase with assets of the Trust.
3.3 Plan Loans. At the direction of the Committee, the Trustee shall invest
assets of the Trust in loans to Participants in accordance with procedures
established by the Committee. The Trustee shall accept as collateral for each
Participant loan only the appropriate amount of the Participant's Subaccount
designated by the Plan document or established policies. No asset, other than
the Participant's Subaccount, can be pledged as collateral for any such loan.
The Trustee shall process all loan repayments and distributions of loans in
accordance with the directions of the Committee.
The Committee hereby directs the Trustee to make loans to Plan Participants from
Plan Subaccounts upon telephone requests by Plan Participants, without requiring
any written authorization agreement or any other writing from Plan Participants
and with written procedures established by RPS and the Committee. The Trustee
makes no representations or warranties with respect to the legality of the
method of effecting such loans under any federal, state or local law or
regulation. Neither RPS nor the Trustee shall have a responsibility to inform
Participants as to any tax consequences of such loans. The Employer shall
indemnify and hold harmless the Trustee (including its affiliates, employees
representatives and agents) from and against any penalty, liability, reasonable
cost or other expense, including but not limited to, the payment of attorney's
fees, which the Trustee may incur in connection with making such loans.
3.4 Written Instruction.Any action of the Employer or the Committee pursuant
to any provisions of this Trust Agreement shall be in writing, from the Employer
or the Committee, and the Trustee shall be fully protected in relying upon such
written notification as actions of the Employer or the Committee. Written
instructions shall include the electronic transmission of information or data as
mutually agreed upon by the Trustee and the Employer. The term "EMPLOYER," as
used throughout this Trust Agreement
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<PAGE> 4
includes any duly-authorized designee of the Employer, such as a Plan
Administrator, or any individual having apparent authority as such. If written
instructions are not received by the Trustee, or if such instructions are
received but are deemed by the Trustee to be unclear, the Trustee will notify
the Employer or the Committee as soon as practicable and until otherwise
instructed by the Employer or the Committee, the Trustee may elect to hold all
or part of any such contribution in cash, without liability for rising security
prices or distributions made, pending receipt by it from the Employer or the
Committee of written instructions or other clarification. If any contributions
received by the Trustee from the Employer are less than any minimum which a
directed investment requires, the Trustee shall promptly notify the Employer of
same and may hold the specified portion of such contributions in cash, without
interest, until such time as the proper amount has been contributed so that the
directed investment may be made. The Trustee shall receive all directions or
instructions in writing provided that the Trustee may accept oral directions for
purchases or sales from the Employer, the Committee or Participant with
subsequent written confirmation.
3.5 Participant Directed Investments. When so instructed by the Committee, the
Trustee shall invest all or any portion of Participant Subaccounts as directed
by said Participant. Such directed investments shall be accounted for separately
for each Participant by RPS. The Committee or its designee shall have the duty
to select and monitor all investment options made available to Participants
under the Plan. The Committee shall ensure that all Participants who are
entitled to direct the investment of assets in their Subaccounts previously
received or receive a copy of all material describing such investment options
that is required by law. Delivery of investment directions by the Committee in
accordance with the instructions of a Participant or by the Participant directly
to the Trustee shall entitle the Trustee to assume that the Participant has
received all such descriptive material. Each Participant who directs the
investment of his Subaccounts shall be solely and absolutely responsible for the
investment, or reinvestment of any such directed Plan investment held on his
behalf in the Trust, and, except as otherwise provided herein, the Trustee shall
not question any such direction, review any securities or other such assets, or
make suggestions with respect to the investment, reinvestment, retention or
disposition of any such assets. The Trustee shall not have any liability or
responsibility for diversification of such assets, for any loss to or
depreciation of such assets because of the purchase, retention or sale of assets
in accordance with a Participant's direction, and the Participant shall have
sole responsibility for the overall diversification, liquidity and prudence of
the investments of his Subaccounts. If a Participant fails to explicitly direct
the investments of his Subaccounts, the Trustee shall invest such Participant
Subaccounts in accordance with procedures established by the Committee for
determining the investment(s) which a Participant is deemed to have elected
under such circumstances.
3.6 Committee Directed Investments. The Committee, by written direction to the
Trustee, is authorized to designated all or a portion of the Trust assets of
which the Committee will direct investments, and the Trustee may segregate such
assets into one or more separate Accounts or administer the Trust as one
Account. In the event the Committee shall employ or appoint an investment
manager ("INVESTMENT MANAGER") to direct the Trustee with respect to all or a
portion of the Trust, the Committee will notify the Trustee in writing of the
appointment of an Investment Manager, including its name and address. Whether or
not the Trust is segregated into separate Accounts, the Trustee shall invest
such portion of the Trust as directed by the Committee or its duly-appointed
Investment Manager only to the extent that such instruction is consistent with
ERISA and any other applicable legal authority. The Trustee shall have no duty
to question any action or direction of the Committee or Investment Manager or
any failure of the Committee or Investment Manager to give directions, or to
review the securities or other investments which are held pursuant to the
Committee's or Investment Manager's directions, or to make suggestions to the
Committee or Investment Manager as to the investment, reinvestment, retention or
disposition of any such
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<PAGE> 5
assets. The Trustee shall not have any liability or responsibility for
diversification of such assets, or for any loss to or the depreciation of such
assets because of the purchase, retention or sale of assets in accordance with
the Committee's or Investment Manager's direction. The Committee shall have
responsibility for the overall diversification of the Trust, subject to
investment decisions made by Participants.
3.7 Trustee's Liability with Respect to Directed Accounts. The Trustee shall
not be liable for, and the Employer will indemnify and hold harmless the Trustee
(including its employees, affiliates, representatives and agents) from and
against, any liability or expense (including counsel fees) because of: (a) any
investment action taken or omitted by the Trustee in accordance with any
direction of the Employer, the Committee, an Investment Manager or a
Participant; or (b) any investment inaction in the absence of investment
directions from the Employer, the Committee, an Investment Manager or a
Participant; or (c) any investment action taken by the Trustee pursuant to an
order to purchase or sell securities placed by the Employer, Committee, an
Investment Manager or a Participant directly with a broker, dealer or issuer.
3.8 Limitations on Investments. Notwithstanding any other provision of this
Trust Agreement to the contrary:
(a) The Trustee may establish such reasonable rules and regulations,
applied on a uniform basis to all Participants, with respect to the requirements
for, and the form and manner of, effecting any transaction with respect to
Participant directed investments as the Trustee shall determine to be consistent
with the purposes of the Plan. Any such rules and regulations shall be binding
upon all persons interested in the Trust.
(b) In no event shall the Trustee engage in any transactions that would
be prohibited under ERISA.
3.9 "Knowledge" of Trustee. It is understood that although, when the Trustee
is subject to the direction of the Employer or the Committee, an Investment
Manager or a Participant, the Trustee will perform certain ministerial duties
("MINISTERIAL DUTIES") with respect to the portion of the Trust subject to such
direction, such duties do not involve the exercise of any discretionary
authority to manage or control Trust assets. Such Ministerial Duties will be
performed in the normal course of business by employees of the Trustee, its
affiliates or agents who may be unfamiliar with investment management. It is
agreed that the Trustee is not undertaking any duty or obligation, express or
implied, to review, and will not be deemed to have any knowledge of or
responsibility with respect to, any transaction involving the investment of the
Trust as a result of the performance of these Ministerial Duties. Therefore, in
the event that "knowledge" of the Trustee shall be a prerequisite to imposing a
duty upon or determining liability of the Trustee under the Plan, this Trust
Agreement or any law regulating the conduct of directed trustees with respect to
the investment of trust assets, as a result of any act or omission of the
Employer, the Committee, or any Participant, or as the result of any transaction
engaged in by any of them, then the receipt and processing of investment orders
and other documents relating to Trust assets by an employee of the Trustee or
its affiliates or agents engaged in the performance of purely Ministerial Duties
shall not constitute "knowledge" of the Trustee.
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<PAGE> 6
ARTICLE IV - DUTIES OF THE TRUSTEE
4.1 Duties of the Trustee. The Trustee is authorized and empowered with
respect to the Trust:
(a) To make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be necessary
or appropriate to carry out the powers herein granted.
(b) To register any investment held in the Trust in the name of the
Trustee or in the name of a nominee, and to hold any investment in bearer form,
but the books and records of the Trustee shall at all times show that all such
investments are part of the Trust.
(c) To employ suitable agents and counsel (who may also be agents and/or
counsel for the Employer) and to pay their reasonable expenses and compensation
out of the Trust.
(d) Solely at the written direction of the Employer or Committee, to
borrow or raise monies for the purpose of the Trust from any source and, for any
sum borrowed, to issue its promissory note as Trustee and to secure the
repayment thereof by pledging all or any part of the Trust, but nothing
contained herein shall obligate the Trustee to render itself liable individually
for the amount of any such borrowing; and no person loaning money to the Trustee
shall be bound to see the application of money loaned or to inquire into the
validity or propriety of any such borrowing.
(e) The Trustee shall use its best efforts to trade Qualifying Employer
Securities as soon as an order is received and processed by RPS. Trade delays
may occur, however, due to stock market constraints or the liquidity of the
Qualifying Employer Security.
Each and all of the foregoing powers may be exercised without a court
order or approval. No one dealing with the Trustee need inquire concerning the
validity or propriety of anything that is done or need see the application of
any money paid or property transferred to or upon the order of the Trustee.
4.2 Valuation of Trust. The Trustee, as of the valuation date, and at such
other time or times as is necessary, shall determine the net worth of the assets
of the Trust. The Trustee may adopt such methods of valuation as it deems
advisable. Notwithstanding the foregoing, the Trustee shall not be responsible
for valuing investment contracts or insurance policies acquired by the Plan
("Contracts"), the value of which shall be provided by the Employer or the
Investment Manager for such Contracts.
4.3 Trust Records. The Trustee shall keep accurate and detailed records of all
receipts, investments, disbursements and other transactions required to be
performed hereunder with respect to the Trust. The Trustee agrees to treat as
confidential all records and other information relative to the Trust. The
Trustee shall not disclose such records and other information to third parties
except to the extent required by law or as requested in writing by the Employer
or the Committee.
4.4 Accounting. Within 90 days after the close of the of the Plan's fiscal
year or such other period as the Employer and the Trustee may agree, and within
90 days after the resignation or removal of the Trustee, as provided herein, the
Trustee shall file with the Employer a written account setting forth all
investments, receipts, disbursement and other transactions effected by it during
such fiscal year or during
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<PAGE> 7
the period from the close of the last fiscal year to the date of notice of such
resignation or removal. Except as otherwise proscribed by ERISA and except for
willful misconduct, negligence or lack of good faith on the part of the Trustee,
upon expiration of 180 days from the date the Plan's independent auditor
delivers its report for the Plan Year for which the Trustee's report relates,
the Trustee shall be released and forever discharged from all liability or
further accountability to the Employer for the accuracy of such accounting and
for the propriety of all acts and the transactions of the Trustee reflected in
said account to which the Employer has not specified written objections with the
Trustee within such 180 day period.
4.5 Distributions. At the direction of the Committee, the Trustee shall make
distributions from the Trust to the Participants. The Trustee shall not be
liable or responsible for any errors made by the Committee with respect to
distributions. The Trustee shall be entitled to rely conclusively upon the
Committee's directions. Notwithstanding any other provision of the Trust
Agreement, the Trustee may condition its delivery, transfer or distribution of
any Trust assets upon the Trustee's receiving satisfactory assurances that the
approval of appropriate governmental agencies or other authorities have been
secured and that all notice and other procedures required by applicable law have
been satisfied.
The Committee hereby directs the Trustee to make distributions from Plan
accounts upon telephone requests by Plan Participants in accordance with the
Authorization Form attached as Exhibit 7 to the Recordkeeping Agreement between
RPS and the Employer, and with written procedures established by RPS and the
Committee. The Trustee makes no representations or warranties with respect to
the legality of such distributions under any federal, state or local law or
regulation or with respect to the sufficiency of the Authorization Form. The
Trustee shall not have a responsibility to inform Participants as to any tax
consequences of such distributions beyond issuance of the Form 1099-R (or such
successor form), nor, unless specifically directed by the Committee and agreed
to by the Trustee in writing, shall the Trustee be responsible for compliance
with any notice requirements which may apply to such distributions, including
without limitation any notice requirements concerning direct rollover rights
other than the notice provided on Participant quarterly statements, right to
defer distributions until normal retirement age, and rights to receive
distributions in any particular form or forms.
4.6 Duties Not Assigned. The duties of the Trustee with respect to the Trust
are limited to those assumed by the Trustee under the terms of this Trust
Agreement. The Trustee shall not be responsible for filing reports, returns or
disclosures with any government agency except as may otherwise be required by
its duties as Trustee under applicable law.
4.7 Standards for the Trustee's Powers. Notwithstanding any other provision of
this Trust Agreement, the Trustee shall discharge its duties hereunder solely in
the interest of the Participants and for the exclusive purpose of providing
benefits to the Participants and defraying reasonable expenses of administering
the Trust, with the skill, care, prudence and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of a like character and
with like aims. The Trustee shall perform its duties in accordance with this
Trust Agreement insofar as this Trust Agreement is consistent with the
provisions of ERISA. To the extent not prohibited by ERISA, the Trustee shall
not be responsible in any way for any action or omission of the Employer or the
Committee with respect to the performance of its duties and obligations set
forth in this Trust Agreement and in the Plan. The Trustee may rely upon such
information, direction, action or inaction of the Employer or the Committee as
being proper under the Plan or the Trust Agreement and is not required to
inquire into the propriety of any such information, direction, action or
inaction. To the extent not prohibited by ERISA, the Trustee shall not be
responsible for any action or omission of any of its
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<PAGE> 8
agents, or with respect to reliance upon advice of its counsel (whether or not
such counsel is also counsel to the Employer), provided that such agents or
counsel were prudently chosen by the Trustee and that the Trustee relied in good
faith upon the action of such agent or the advice of such counsel.
4.8 Limitation of Duties. Neither the Trustee nor any of its officers,
directors, partners or agents shall have any duties or obligations with respect
to this Trust Agreement, except those expressly set forth herein, in the Plan
and in ERISA.
ARTICLE V - DUTIES OF THE EMPLOYER
5.1 Duties of the Employer. It is understood that the Employer shall be
responsible for the performance of the following functions with respect to the
Trust:
(a) Transmitting all Trust contributions made by or on behalf of each
Participant in accordance with the instructions of each Participant to the
Trustee at such times and in such manner as is mutually agreed between the
Employer and the Trustee.
(b) Providing to the Trustee, on a timely basis, a copy of the Plan
document including all amendments and restatements.
(c) Determining that the contributions made by or on the behalf of each
Participant are in accordance with any applicable Federal and state law and
regulations.
(d) Assuring that the Plan maintains qualified status under applicable
provisions of the Code.
(e) Determining the suitability of any investment offered as an option
in the Plan, including but not limited to Qualifying Employer Securities
(defined hereafter).
(f) Determining that loans to Participants are made in accordance with
ERISA section 408(b)(1).
(g) Meeting any U.S. securities laws that may apply with respect to
offering Employer Stock as an investment option under the Plan. This includes,
but is not limited to, registering such stock with the Securities and Exchange
Commission ("SEC") and other government agencies, filing reports with the SEC
and other government agencies, and preparing prospectuses, proxy solicitations
and other similar materials.
5.2 Bonding. The Employer agrees to obtain and maintain a fiduciary bond and
to include as those covered by such bond the employees of the Employer, the Plan
Administrator and the Trustee, including any of the Trustee's employees,
officers and agents required by law to be so covered. The cost of any such bond
shall be paid by the Employer.
5.3 Information and Data to be Furnished to the Trustee. The Employer shall
furnish the Trustee with such information and data relevant to the Plan as is
necessary for the Trustee to properly perform its duties assumed hereunder,
including, but not limited to a copy of the Plan's qualification letter from the
Internal Revenue Service.
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<PAGE> 9
5.4 Qualified Domestic Relations Orders. It shall be the responsibility of the
Employer to determine whether any domestic relations order is "qualified" in
accordance with Code Section 414(p). The Trustee will act only as directed by
the Employer with respect to the payment of benefits to an alternate payee under
any qualified domestic relations order.
ARTICLE VI - TERMINATION OF TRUST AGREEMENT
6.1 Resignation or Removal of Trustee. The Trustee may resign at any time upon
180 days' prior written notice to the Employer and may be removed by the
Employer at any time upon 30 days' prior written notice to the Trustee. If
mutually agreed upon between the parties, the 30 days' notice may be waived or
reduced. Upon resignation or removal of the Trustee, the Employer shall appoint
a successor trustee. Upon receipt by the Trustee of written acceptance of such
appointment by the successor trustee, the Trustee shall transfer and pay over to
the successor the assets of the Trust and all records (or copies) pertaining
thereto. The Trustee is authorized, however, to reserve such sum of money or
property as it may deem advisable for payment of all fees, compensation, costs
and expenses, or for payment of any liabilities constituting a charge on or
against the assets of the Trust or on or against the Trustee, with any balance
of such reserve remaining after payment of all such items to be paid over to the
successor trustee. Upon the assignment, transfer and payment over of the assets
of the Trustee, the Trustee shall be released and discharged from any and all
claims, demands, duties and obligations arising out of the Trust and its
management thereof, excepting claims based only upon the Trustee's willful
misconduct or negligence. The successor trustee shall hold the assets paid over
to it under the terms similar to those of this Trust Agreement under a trust
that will qualify under Section 401(a) of the Code. If within 30 days after the
Trustee's resignation or removal, the Employer has not appointed a successor
trustee which has accepted such appointment, the Trustee shall have the right to
apply to a court of competent jurisdiction for the appointment of such successor
and for the determination of any question of construction or instruction. If the
Trustee fails to receive a judgment or decree with respect to the appointment of
a successor trustee within 60 days of its initial filing with the court, the
Trustee may either terminate the Trust pursuant to Section 6.2 hereof or appoint
such successor trustee itself.
6.2 Termination of the Trust. Subject to the right of the Trustee to terminate
the Trust in accordance with this Section, this Trust shall continue as to the
Employer so long as the Plan is in full force and effect. If the Plan ceases to
be in full force and effect, this Trust shall thereupon terminate unless
expressly extended by the Employer. Termination of the Trust shall be effected
by distribution of all assets thereof to the Participants or other persons
entitled thereto pursuant to the directions of the Employer (or, in the absence
of such direction, as determined by the Trustee), subject to the Trustee's right
to reserve funds as provided in Section 6.1 hereof. Upon the completion of such
distribution, the Trustee shall be relieved from all further liability with
respect to all amounts so paid, other than any liability arising out of the
Trustee's willful misconduct or negligence.
ARTICLE VII - PROXY VOTING
7.1 General Provisions. Except to the extent provided in Section 7.3(a) and
7.3(c) of this Trust Agreement, the Committee shall direct the Trustee as to the
manner in which it shall:
(a) vote in person or by proxy, general or special, any securities held
in the Trust;
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<PAGE> 10
(b) exercise conversion privileges, subscription rights and other
options; and
(c) participate in or dissent from reorganizations, tender offers or
other changes in property rights.
Notwithstanding the foregoing and Section 7.3, the Trustee shall follow
any directions of the Committee or Participants in the performance of these
functions only to the extent that following such directions would not violate
the provisions of ERISA.
7.2 Receipt of Notices. Upon receipt, the Trustee shall transmit to the
Employer all notices of conversion, redemption, tender, exchange, subscription,
class action, claim in insolvency proceedings or other rights or powers relating
to any investment in the Trust, which notices are received by the Trustee from
its agents or custodian, from issuers of securities in question and from the
party (or its agents) extending such rights. The Trustee shall have no
obligation to determine the existence of any conversion, redemption, tender,
exchange, subscription, class action, claim in insolvency proceedings or other
right or power relating to any investments in the Trust.
7.3 Qualifying Employer Securities.
(a) General. The Trustee shall exercise all voting or tender offer
rights with respect to any qualifying employer securities, as defined in Section
407(d)(5) of ERISA (individually, "QUALIFYING EMPLOYER SECURITY" and
collectively, "QUALIFYING EMPLOYER SECURITIES") held by it in accordance with
instructions from Participants. Each Participant shall be a named fiduciary
within the meaning of Section 403(a)(1) of ERISA for the purpose of directing
the voting and tendering of Qualifying Employer Securities allocated to his Plan
account. Each Participant may direct the Trustee, confidentially, how to vote or
whether or not to tender the Qualifying Employer Securities representing shares
allocated to his Plan account. Upon timely receipt of direction, the Trustee
shall vote or tender all such shares of Qualifying Employer Securities as
directed by the Participants. The Employer shall use reasonable procedures to
inform Participants as to what action will be taken in the absence of such
affirmative instructions. In the case of a tender offer or other right or option
with respect to Qualifying Employer Securities, a Participant who does not issue
valid directions to the Trustee to sell, offer to sell, exchange or otherwise
dispose of such Qualifying Employer Securities shall be deemed to have directed
the Trustee that such shares allocated to his Plan account remain invested in
Qualifying Employer Securities. The Employer shall provide the Trustee with all
information and assistance that the Trustee may reasonably request in order for
the Trustee to perform its duties hereunder.
(b) Employers Opting to Comply with ERISA Section 404(c) Regulations.
The Employer intends to comply with ERISA Section 404(c) and the regulations
issued thereunder, and therefore, the Employer shall complete Exhibit B on an
annual basis within a reasonable time prior to the date of each shareholder
meeting relating to Qualifying Employer Securities. Upon receipt of a properly
executed Exhibit B, the Trustee shall not vote those Participant's shares for
which no instruction is received. If the Employer fails to file an Exhibit B
certification with the Trustee, the Trustee shall vote the shares for which
affirmative instructions were not given pro rata with the shares for which
affirmative instructions were given by Participants.
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<PAGE> 11
ARTICLE VIII - MISCELLANEOUS
8.1 Purpose. This Trust has been established for the exclusive benefit of the
Plan's Participants. Except as provided herein, it shall be impossible at any
time prior to the satisfaction of all liabilities to the Participants for any
part of the principal or income of the Trust, other than such part as is
required to pay taxes, administrative expenses or refund contributions as
provided herein, to be paid or diverted to the Employer or to be used for any
purpose whatsoever other than for the exclusive benefit of the Participants.
8.2 Indemnification and Hold Harmless. The Employer shall indemnify and hold
harmless the Trustee (including its affiliates, employees, representatives and
agents) from and against any penalty, liability, reasonable cost or other
expense, including, but not limited to, the payment of attorneys' fees which the
Trustee may incur in connection with this Trust Agreement or the Plan, unless
such liability, cost or expense arises out of the Trustee's own willful
misconduct or negligence. The Trustee shall not be obligated or expected to
commence or defend any legal action or proceeding in connection with this Trust
Agreement unless agreed upon in writing by the Trustee and Employer and unless
the Trustee is fully indemnified for doing so to its satisfaction.
8.3 Trustee's Fees. The Trustee's fees for performing its duties hereunder
shall be $5,000 annually. The Trustee shall give 90 days advance written notice
to the Employer whenever its fees are changed or revised. Such fees, any taxes
of any kind whatsoever which may be levied or assessed upon the Trust, and any
reasonable expenses incurred by the Trustee in the performance of its duties,
including fees for legal services rendered to the Trustee, shall, unless paid by
the Employer, be paid from the Trust.
8.4 Conflict with the Plan Document. In the event of any conflict between the
provisions of the Plan document and this Trust Agreement, the provisions of this
Trust Agreement shall prevail.
8.5 Construction. Whenever used in this Trust Agreement, unless the context
indicates otherwise, the singular shall include the plural, the plural shall
include the singular, and the male gender shall include the female gender.
8.6 Headings. Headings in this Trust Agreement are inserted solely for
convenience of reference and shall neither constitute a part of this Trust
Agreement, nor affect its meaning, construction or intent.
8.7 Severability. If any provision of this Trust Agreement is held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision, and this Trust Agreement shall be construed and enforced as if such
provision had not been included.
8.8 Return of Contributions. The Trustee shall return amounts to the Employer
upon the Employer's written direction due to a "mistake of fact" as described in
Section 403(c) of ERISA. Contributions made by the Employer by a "mistake of
fact" shall revert and be paid to the Employer within one year after the payment
of such mistaken contributions, if the Employer so directs the Trustee in
writing. In making such a return of assets to the Employer, the Trustee shall
accept the Employer's written direction as its warranty that such return is
provided for in the Plan and complies with the Plan document and ERISA Section
403(c), and the Trustee need make no further investigation.
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<PAGE> 12
8.9 Nonalienation of Benefits. No rights or claims to any of the monies or
other assets of the Trust shall be assignable, nor shall such rights or claims
be subject to garnishment, attachment, execution or levy of any kind; and any
attempt to transfer, assign or pledge the same, except as specifically permitted
by law, shall not be recognized by the Trustee.
8.10 Amendments. The Employer and the Trustee may amend this Trust Agreement at
any time by a written agreement between them; provided, however, that no such
amendment shall make it possible for any part of the corpus or income of the
Fund to be used or diverted to purposes other than the exclusive benefit of
Participants and defraying reasonable expenses of administering the Plan and
Trust.
8.11 Surviving Sections. Notwithstanding any Sections of this Trust Agreement
to the contrary, Sections 4.7, 6.1, 6.2 and 8.2 shall survive the termination of
this Trust Agreement.
8.12 Inspection of Plan Records by Employer. The Trustee agrees to permit the
Employer to inspect the records of the Trust maintained by the Trustee during
regular business hours and to permit the Employer to audit the same upon the
giving of reasonable notice to the Trustee. The Trustee further agrees that it
will provide the Employer with information and records that the Employer may
reasonably require in order to perform audits of said records.
8.13 Law Governing. This Trust Agreement shall be administered, construed and
enforced according to the laws of the State of Maryland and applicable Federal
law.
8.14 Merger, Consolidation or Transfer. In the event of the merger,
consolidation or transfer of any portion of the Trust to a trust fund held under
any other plan, the Trustee shall dispose of all or part, as the case may be, of
the Trust, in accordance with the written directions of the Employer, subject to
the right of the Trustee to reserve funds as provided in Section 6.1 hereof.
8.15 Trustee as Successor Trustee. If the Trustee is acting as a successor
trustee with respect to the Trust, the Employer shall indemnify and hold
harmless the Trustee against all penalties, liabilities, taxes, claims, cost or
expense with respect to the Trust arising prior to the appointment of the
Trustee and its acceptance thereof.
8.16 Successors and Assigns. This Trust Agreement shall be binding upon the
successor and assigns of the parties hereto.
8.17 Effective Date. This Trust Agreement shall be effective as of the date of
September 1, 1998.
8.18 Signature Authority and Conformity with the Plan. The person executing
this Trust Agreement on behalf of the Employer certifies that he or she is duly
authorized by the Employer consistent with the terms of the Plan to do so. The
Employer represents that copies of all Plan documents as in effect on the date
of this Trust Agreement have been delivered to the Trustee.
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<PAGE> 13
IN WITNESS WHEREOF, the Employer and the Trustee have caused their duly
authorized officers to execute this Trust Agreement.
BECKMAN COULTER, INC.
ATTEST:
/s/ Claudia Ferguson By: /s/ Fidencio M. Mares
- --------------------------------- -----------------------------------
Vice President, Human Resources
---------------------------------------
Title
August 26, 1998
---------------------------------------
Date
T. ROWE PRICE TRUST COMPANY
ATTEST:
/s/ P.A. McCauley By: /s/ Nancy Maitland
- --------------------------------- -----------------------------------
Vice President
---------------------------------------
Title
8/28/98
---------------------------------------
Date
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<PAGE> 14
EXHIBIT A TO
THE TRUST AGREEMENT BETWEEN
THE T. ROWE PRICE TRUST COMPANY AND
BECKMAN COULTER, INC.
Payment of Plan Expenses by the Plan Trust
Excluding Plan recordkeeping and Trustee fees, the Employer shall submit
to the Trustee all expenses to be charged to the Trust. Each submission also
shall include the following certification executed by the appropriate Plan
fiduciary:
I hereby certify that these expenditures reflect administrative
expenses solely for the BECKMAN COULTER, INC. SAVINGS PLAN for the
time period of ____________________ and that such expenses are
proper and reasonable.
Each submission shall also include an explanation of the purpose of the
expenditure (e.g. copying costs for the Summary Plan Description) and an
invoice, if possible.
- 14 -
<PAGE> 15
EXHIBIT B TO
THE TRUST AGREEMENT BETWEEN
THE T. ROWE PRICE TRUST COMPANY AND
BECKMAN COULTER, INC.
Certification of Compliance with ERISA Section 404(c)
and Applicable Regulations
The Employer shall certify the following in writing within a reasonable
time prior to each shareholder meeting for Qualified Employer Securities:
I represent that I am a Plan fiduciary of the BECKMAN COULTER, INC.
SAVINGS PLAN ("Plan"). In such capacity, I hereby certify that the
Plan is in compliance with ERISA Section 404(c) and the Regulations
issued thereunder and that unvoted shares should not be voted as
described in Section ____ of the Plan.
- 15 -
<PAGE> 1
EXHIBIT 5.1
[BECKMAN COULTER LETTERHEAD]
February 4, 1999
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 2,000,000 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. Savings 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,
/s/ WILLIAM H. MAY
------------------------------
William H. May
Vice President, General
Counsel and Secretary
<PAGE> 1
EXHIBIT 5.2
[LOGO]
February 4, 1999
Beckman Coulter, Inc.
4300 North Harbor Boulevard
Fullerton, California 92834-3100
Re: Beckman Coulter, Inc. Savings Plan
Ladies and Gentlemen:
In connection with the preparation of the Registration Statement on Form
S-8 (the "Registration Statement') to be submitted by Beckman Coulter, Inc. (the
"Company") to the Securities and Exchange Commission with respect to the Beckman
Coulter, Inc. Savings Plan, as amended and restated as of September 1, 1998 (the
"Plan") (formerly known as the "Beckman Instruments, Inc. Savings and Investment
Plan"), you have requested our opinion as to whether the provisions of the
written documents constituting the Plan comply with the requirements of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"). We
consent to the use of this opinion as an exhibit to the Registration Statement.
We have been advised by you that the Plan, as adopted effective August 1,
1989, received a favorable determination letter, dated October 1, 1990, from the
Internal Revenue Service (the "Service") that the Plan satisfied the
requirements of the Internal Revenue Code of 1986, as amended (the "Code"), and
regulations thereunder, the Tax Reform Act of 1986, and subsequent legislation.
We have also been advised by you that the Plan, as amended and restated as of
September 1, 1998, will be submitted to the Service on an Application for
Determination for Employee Benefit Plan. You have advised us that the Plan will
be timely amended within the applicable remedial amendment period with respect
to any additional amendments required by the Service as a condition to granting
a favorable determination letter with respect to the Plan.
Based on the foregoing, and our examination of the Plan and accompanying
trust, it is our opinion that the form of the Plan satisfies the essential
substantive requirements of ERISA and the Code. Our opinion and any
determination letter issued by the Internal Revenue Service covers only the form
of the Plan and leaves open the question of whether in operation the Plan is
qualified.
Respectfully,
/s/ O'Melveny & Myers LLP
<PAGE> 1
EXHIBIT 15
[LOGO]
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 LLP
Orange County
February 8, 1999
<PAGE> 1
EXHIBIT 23.1
[LOGO]
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 LLP
Orange County, California
February 8, 1999
