-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WYxBLCs/DlP/nW1Ow4e0bogYV3PxvxM31mWwl+CHbcusw1vsQl/DKi2u88Hx4sif x9VatSna1MicJ1sZCsFMxQ== 0000902595-97-000107.txt : 19970410 0000902595-97-000107.hdr.sgml : 19970410 ACCESSION NUMBER: 0000902595-97-000107 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970409 EFFECTIVENESS DATE: 19970409 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BECKMAN INSTRUMENTS INC CENTRAL INDEX KEY: 0000840467 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 951040600 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-24851 FILM NUMBER: 97577363 BUSINESS ADDRESS: STREET 1: 2500 HARBOR BLVD CITY: FULLERTON STATE: CA ZIP: 92634 BUSINESS PHONE: 7148714848 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on April 9, 1997. Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ___________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ___________________ BECKMAN INSTRUMENTS, 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.) 2500 Harbor Boulevard, Fullerton, California 92634 (Address of principal executive offices) BECKMAN INSTRUMENTS, INC. INCENTIVE COMPENSATION PLAN OF 1990 (Full title of the plan) William H. May, Esq. Vice President, General Counsel and Corporate Secretary Beckman Instruments, Inc. 2500 Harbor Boulevard Fullerton, California 92634 (Name and address of agent for service) ___________________ Telephone number, including area code, of agent for service: (714) 871-4848 ___________________ CALCULATION OF REGISTRATION FEE
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 Common Stock, par value 2,000,000<1>,<2> $41.0625<3> $82,125,000<3> $24,887<3> $.10 per share shares <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, an additional indeterminate number of shares and rights which by reason of certain events specified in the Plan may become subject 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 April 2, 1997, 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.
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information specified in Part I of Form S-8 (plan information and registrant information) will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such documents need not be filed with the Securities and Exchange Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents, which include the statement of availability required by Item 2 of Form S-8, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents of Beckman Instruments, Inc. (the "Company") filed with the Securities and Exchange Commission are incorporated herein by reference: (a) Annual Report on Form 10-K for the Company's fiscal year ended December 31, 1996; (b) The description of the Company's Common Stock contained in its Registration Statement on Form 8-A, filed with the Securities and Exchange Commission on or about April 25, 1989, together with the amendment thereto filed on July 2, 1992. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into the prospectus and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the original issuance of the Common Stock registered hereby is passed on for the Company by William H. May, Vice President, General Counsel and Secretary of the Company. Mr. May is compensated by the Company, the holder of options to acquire shares of Common Stock, and a Plan participant. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED ITEM 8. EXHIBITS See the attached Exhibit Index. ITEM 9. UNDERTAKINGS The information and contents of Registration Statement No. 33-41519 and Registration Statement No. 33-66990, each on Form S-8, which were previously filed with the Securities and Exchange Commission by the Registrant are incorporated herein by reference. Except for required opinions, consents, signature pages and any information required in this Registration Statement that is not in the above mentioned Registration Statements, the information required by Part II to be contained in this Registration Statement is omitted in accordance with General Instruction E to Form S-8. SIGNATURES Pursuant to the requirements of the Securities Act, as amended, 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 6, 1997. BECKMAN INSTRUMENTS, INC. By: /s/ Louis T. Rosso Louis T. Rosso Its: President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Louis T. Rosso, Dennis K. Wilson, and James T. Glover, or each of them individually, his true and lawful attorney-in-fact and agent with full powers of substitution and resubstitution, for him and in his 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 Securities and Exchange Commission, granting unto said attorney-in-fact and agent, 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.
SIGNATURE TITLE DATE /s/ Louis T. Rosso Chairman of the Board, Chief February 6, 1997 Louis T. Rosso Executive Officer and Director (Principal Executive Officer) /s/ Dennis K. Wilson Vice President, Finance, Chief February 6, 1997 Dennis K. Wilson Financial Officer and Director (Principal Financial Officer) /s/ James T. Glover Vice President and Controller February 6, 1997 James T. Glover (Controller) /s/ Earnest H. Clark, Jr. Director<1> February 6, 1997 Earnest H. Clark, Jr. /s/ Dennis C. Fill Director<1> February 6, 1997 Dennis C. Fill /s/ Carolyne K. Davis Director February 6, 1997 Carolyne K. Davis, Ph.D /s/ Gavin S. Herbert Director February 6, 1997 Gavin S. Herbert /s/ Betty Woods Director<1> February 6, 1997 Betty Woods /s/ Francis P. Lucier Director February 6, 1997 Francis P. Lucier /s/ Hugh K. Coble Director February 6, 1997 Hugh K. Coble /s/ Charles A. Haggarty Director February 6, 1997 Charles A. Haggarty /s/ William N. Kelley Director February 6, 1997 Dr. William N. Kelley /s/ C. Rocerick O'Neil Director February 6, 1997 C. Roderick O'Neil /s/ John P. Wareham Director February 6, 1997 John P. Wareham ___________________________________________________ <1> Member of Organization and Compensation Committee
EXHIBIT INDEX<1> Exhibit Number Description 4. Beckman Instruments, Inc. Incentive Compensation Plan of 1990 (Amended and Restated April 4, 1997). 5. Opinion of Company Counsel (opinion re legality). 23.1 Consent of Independent Accountants. 23.2 Consent of Company Counsel (included in Exhibit 5). 24. Power of Attorney (included in this Registration Statement under "Signatures"). _________________________________________________ <1> Each exhibit index and exhibit of Registration Statement No. 33-41519 and Registration Statement No. 33-66990, each on Form S-8, which were previously filed with the Securities and Exchange Commission by the Registrant, are incorporated herein by reference. EX-4 2 EXHIBIT 4 BECKMAN INSTRUMENTS, INC. INCENTIVE COMPENSATION PLAN OF 1990 (Amended and Restated April 4, 1997) 1. PURPOSE OF PLAN. The purpose of this Plan is to enable Beckman Instruments, Inc. and certain of its Subsidiaries to continue to compete successfully in attracting and retaining Employees with outstanding abilities by making it possible for them to acquire Shares of the Company's Common Stock on terms which will give them a more direct and continuing incentive to make substantial contributions to the future success of the Company's business. 2. DEFINITIONS. "Board" means the Board of Directors of the Company. "Code" means the Internal Revenue Code of 1986, as amended, or any successor code thereto. "Company" means Beckman Instruments, Inc., a Delaware corporation. "Committee" means the Board or a committee appointed by the Board to administer this Plan, which committee shall be comprised only of two or more directors or such greater number of directors as may be required under applicable law, each of whom (i) in respect of any transaction at a time when the affected Participant may be subject to Section 162(m) of the Code, shall be an "outside director" within the meaning of Section 162(m) of the Code, and (ii) in respect of any transaction at a time when the affected Participant may be subject to Section 16 of the Securities and Exchange Act of 1934 as amended ("Exchange Act"), shall be a "Non- Employee Director" within the meaning of Rule 16b-3(b)(3) under the Exchange Act. The Organization and Compensation Committee may be this committee if it meets these requirements. "Common Stock" means common stock of the Company, par value $.10 per Share. "Employee" means a person regularly employed by the Company or by a Subsidiary. "Incentive" means any option, restricted stock or performance award granted or issued under the Plan. "Parent Corporation" means any corporation in an unbroken chain of corporations ending with the Company if each of the corporations other than the Company then owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. "Participant" means an Employee who receives an Incentive which, in whole or in part, remains outstanding. "Plan" means the Beckman Instruments, Inc. Incentive Compensation Plan of 1990, as amended. "Retirement" means termination of employment of a Participant pursuant to the Company's applicable retirement policy or plan as determined by the Committee in its discretion. "Shares" means shares of Common Stock of the Company. "Subsidiary" means any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations other than the last corporation in the unbroken chain then owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 3. STOCK AVAILABLE FOR INCENTIVES. (a) Stock Subject to the Plan. For each calendar year from and including the calendar year beginning January 1, 1993, a number of Shares equal to the amount of 1.5% of the total number of issued and outstanding Shares as of December 31 of the calendar year immediately preceding such year (the "1.5% Limit") shall become available for issuance under the Plan. In addition, (i) any unused portion of the Shares remaining from those reserved in 1990 for issuance under the Plan, (ii) any Shares relating to Incentives granted at any time under the Plan which have expired or have been surrendered, including but not limited to Shares covered by options which have expired or which have been surrendered without having been exercised and Shares of restricted stock forfeited to the Company, and (iii) any unused portion of the 1.5% Limit for any calendar year, shall be added to the aggregate number of Shares available for issuance in each calendar year under the Plan. In no event, except as subject to adjustment as provided in Section 3(b), shall more than 2,175,000 Shares be cumulatively available for issuance pursuant to the exercise of options awarded under the Plan which qualify as incentive stock options ("ISOs") under the Code. The maximum number of Shares subject to options that are granted during any calendar year to any individual shall be limited to 150,000 shares, subject to adjustments contemplated by Section 3(b). (b) Adjustments and Reorganizations. The number of Shares subject to this Plan shall be appropriately adjusted if the outstanding Shares are hereafter changed into or exchanged for a different number or kind of shares or other securities of the Company, or of another corporation, by reason of reorganization, merger, consolidation, recapitalization, reclassification, stock split-up, stock dividend or combination of shares. The number of shares covered by outstanding options and the exercise price therefor shall likewise be appropriately adjusted whenever the number or kind of shares shall be increased or reduced by any such procedure after the date or dates on which such options were granted; provided, however, that, in the case of ISOs, each such adjustment shall be made in such manner as not to constitute a "modification" within the meaning of Section 424(h)(3) of the Code. In the event that the Company is succeeded by another corporation in a reorganization, merger, consolidation, acquisition of property or stock, separation or liquidation, the Committee may, in its absolute discretion and on such terms and conditions as it deems appropriate, provide, either by terms of the Incentive or a resolution adopted prior to the occurrence of the reorganization, merger, consolidation, acquisition of property or stock, separation or liquidation, that for some period of time prior to such event: (i) for any option granted under this Plan, such option (A) shall be exercisable as to all Shares covered thereby, (B) shall be assumed by such successor corporation, (C) shall be canceled and be replaced by a substitute option of the successor corporation or (D) shall be canceled in consideration for a cash payment in an amount equal to the Fair Market Value of the Shares covered by such option less their aggregate exercise price; and (ii) for any such Shares of restricted stock that are still subject to restrictions, (A) all restrictions on such Shares of restricted stock shall terminate or expire, (B) obligations of the Company in relation to such Shares of restricted stock shall be assumed by such successor corporation, (C) such Shares of restricted stock shall be canceled and replaced by substitute shares of restricted stock of the successor corporation or (D) such Shares of restricted stock shall be forfeited to the Company in consideration for a cash payment in an amount to be determined by the Committee. (c) Reservation of Shares. Shares delivered in connection with any Incentive shall, in the discretion of the Committee, be either Shares heretofore or hereafter authorized and then unissued, or previously issued Shares heretofore or hereafter acquired through purchase in the open market or otherwise, or some of each. The Company shall be under no obligation to reserve or to retain in its treasury any particular number of Shares at any time, and no particular Shares, whether unissued or held as treasury shares, shall be identified as those related to this Plan. 4. GRANTING OF INCENTIVES. The Committee, is authorized to grant options to selected Employees pursuant to this Plan during the calendar years 1990 through 2001 but not thereafter, to issue restricted stock to selected Employees pursuant to this Plan during the calendar years 1991 through 2001 but not thereafter, and to issue performance awards to selected Employees pursuant to this Plan during the calendar years 1993 through 2001 but not thereafter. Incentives under the Plan may be granted in any one or a combination of (a) stock options, (b) restricted stock, and (c) performance awards. All Incentives shall be subject to the terms and conditions set forth herein and to such other terms and conditions as may be established by the Committee. The type of Incentive or combination thereof, the number of Shares, if any, covered by Incentives granted in each year; the Employees to whom Incentives are granted; and the number of Shares covered by Incentives granted to each Employee selected shall be wholly within the discretion of the Committee, subject only to the limitations prescribed in Sections 3, 5 and 7. 5. STOCK OPTIONS. The Committee may grant options qualifying as incentive stock options ("ISOs") under Section 422 of the Code and nonqualified stock options (collectively, "options"). Options granted under this Plan shall be subject to the following terms and conditions and such other terms and conditions as the Committee may determine: (a) Option Price. The option price shall be fixed by the Committee; provided, however, that the price per Share shall not be less than 100% of the fair market value of the Shares on the date such option is granted; provided further, that, in the case of ISOs, the price per Share shall not be less than 100% (110% in the case of a Participant then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of stock of the Company, any Subsidiary or any Parent Corporation) of the Fair Market Value of the Shares on the date such option is granted. For purposes of ISOs granted under this Plan, the "Fair Market Value" of the Company's Common Stock shall be determined by the Committee in accordance with Section 422 of the Code and the regulations promulgated thereunder. (b) Non-transferable. Options shall not be transferable otherwise than by will or by the laws of descent and distribution and shall be exercisable, during the Participant's lifetime, only by the Participant or the Participant's guardian or legal representative. No option shall be subject, in whole or in part, to attachment, execution or levy of any kind. (c) Option Period; Expiration. Each option shall expire and all rights thereunder shall end at the expiration of such period (which shall not be more than ten years) after the date on which it was granted as shall be fixed by the Committee, subject in all cases to earlier expiration as provided in paragraphs (d) and (e) of this Section 5 in the event of termination of employment or death. No ISO may be granted to any person who, at the time the option is granted, owns (or is deemed to own under Section 424(d) of the Code) Shares possessing more than 10% of the total combined voting power of all classes of stock of the Company, any Subsidiary or any Parent Corporation, unless such option by its terms is not exercisable after the expiration of five years from the date such option is granted. (d) Participant Only; Upon Termination of Employment by Reason Other Than Death; Expiration. During the lifetime of a Participant, his or her option shall be exercisable only by the Participant and, unless otherwise provided in the option agreement or by resolution adopted after the date of grant, only while employed by the Company or a Subsidiary or within (i) three years after Retirement or total disability if and to the extent exercisable by the Participant on the last day of employment prior to such event, or (ii) three months after the Participant otherwise ceases to be so employed if and to the extent the option was exercisable by the Participant on the last day of such employment; provided, that in the case of an option which is an ISO a Participant must exercise his or her option within (i) three months from the date the Participant ceases to be so employed other than by reason of death or total disability, or (ii) twelve months after the Participant ceases to be so employed by reason of his or her total disability. The option, to the extent not exercisable on the date of termination from employment, shall terminate. Notwithstanding the above, in no event shall options be exercisable later than the end of the period fixed by the Committee in accordance with the provisions of paragraph (c) of this Section 5. (e) Upon Death; Expiration. If a Participant dies within a period during which the option could have been exercised by the Participant, his or her option may be exercised within three years after such Participant's death (but not later than the end of the period fixed by the Committee in accordance with the provisions of paragraph (c) of this Section 5) by those entitled under the Participant's will or the laws of descent and distribution, but only if and to the extent the option was exercisable by the Participant immediately prior to death. The option, to the extent not exercisable on the date of death (or, if earlier, termination from employment), shall terminate. (f) Exercisable Pursuant to Terms of Grant; Acceleration. Options shall become exercisable and in such installments (which may be cumulative) as the Committee shall provide in the terms of each individual option; provided, however, by resolution adopted after an option is granted, the Committee may on such terms and conditions as it may determine to be appropriate, accelerate the time at which such option or any portion thereof may be exercised. (g) Full or Partial Exercise. As the Committee may fix at or after the time of grant, options may be exercised in whole at one time or in part from time to time. (h) Delivery of Shares; Payment. No Shares shall be delivered upon the exercise of an option until (i) the option price has been paid in full in cash or, at the discretion of the Committee, in whole or in part in Common Stock owned by the Participant valued at fair market value on the date of exercise; (ii) all amounts which the Company (or other employer corporation) is required to withhold under federal, state or local law in connection with the exercise of the option have been paid in full in cash; (iii) such Shares have been admitted to listing on all stock exchanges on which such class of stock is then listed; (iv) the registration or other qualification requirements for such Shares, which the Committee, in its absolute discretion, deem necessary or advisable, have been completed; and (v) the approval or clearances from any state or federal governmental agency, which the Committee shall, in its absolute discretion, determine to be necessary or advisable, have been obtained. Subject to the Committee's consent, the full payment required under subparagraph (i) above may be made by retention by the Company of Shares to be issued pursuant to such option exercise with an aggregate fair market value on the date of exercise equal to the total exercise price for the options being exercised. (i) ISO $100,000 Limit. To the extent that the aggregate Fair Market Value (within the meaning of Section 5(a)) of Shares with respect to which ISOs first become exercisable by a Participant in any calendar year exceeds $100,000, taking into account both Common Stock subject to ISOs under this Plan and stock subject to incentive stock options under all other plans of the Company or any Parent Corporation, such options shall be treated as nonqualified stock options. For this purpose, the "Fair Market Value" of the stock subject to options shall be determined as of the date the options were awarded. In reducing the number of options treated as ISOs to meet the $100,000 limit, the most recently granted options shall be reduced first. To the extent a reduction of simultaneously granted options is necessary to meet the $100,000 limit, the Committee may, in the manner and to the extent permitted by law, designate which shares of Common Stock are to be treated as shares acquired pursuant to the exercise of an ISO. 6. RESTRICTED STOCK. Shares of restricted stock granted under this Plan shall be subject to the following terms and conditions and such other terms and conditions as the Committee may determine: (a) Price; Legal Consideration. The price for issuance of the Shares of restricted stock shall be fixed by the Committee; provided that legal consideration shall be required for each issuance of Shares of restricted stock. (b) Non-transferable. Shares of restricted stock shall not be transferable until the expiration or termination of all restrictions on such Shares, and, prior to the expiration or termination of such restrictions, Shares of restricted stock shall not be subject, in whole or in part, to attachment, execution or levy of any kind. (c) Restrictions; Expiration. The Shares of restricted stock issued under this Plan shall be subject to such restrictions as the Committee shall provide and all such restrictions shall terminate or expire at the end of such period (which shall not be more than ten years) after the date on which such restricted shares were issued as shall be fixed by the Committee, subject in all cases to earlier expiration as provided in paragraph (d) of this Section 6. (d) Vesting; Acceleration. Restricted stock shall vest as the Committee shall provide in the terms of each individual grant; provided, however, by resolution adopted after restricted stock is granted, the Committee may, on such terms and conditions as it may determine to be appropriate, accelerate the time at which such restricted stock or any portion thereof shall vest. 7. PERFORMANCE AWARDS. The Committee may, in its discretion, grant performance-based awards to eligible Employees based upon such factors as the Committee shall deem relevant in light of the specific type and terms of the award. In addition, and without limiting the generality of the foregoing, the Committee may grant performance- based awards within the meaning of Section 162(m) of the Code ("Performance Awards"), whether in the form of Shares, restricted stock, performance stock, phantom stock, cash awards or other rights, whether or not related to stock values or appreciation, the grant, vesting, exercisability or payment of which depends on the degree of achievement of the Performance Criteria (within the meaning of Section 7(b) below) relative to preestablished targeted levels for (i) the Company on a consolidated, segment, subsidiary or division basis, or (ii) an individual. An award that is intended to satisfy the requirements of Section 7 applicable to Performance Awards shall be designated as such at the time of grant. Such Performance Awards shall be subject to the following terms and conditions and such other terms and conditions as the Committee may prescribe: (a) Eligible Class. The eligible class of persons for Performance Awards under this Section 7 shall be executive officers of the Company and, in the discretion of the Committee, other key employees of the Company. (b) Award Period; Performance Criteria. The Committee shall determine and include in a Performance Award grant the period of time for which a Performance Award is made ("Award Period"). The applicable Award Period may not be less than one year nor more than 10 years. The Committee shall also establish the criteria by which the performance shall be measured ("Performance Criteria") during the Award Period as a basis for determination of the amount payable under the Performance Award. The Performance Criteria may include: earnings per share, sales growth, pre-tax margin, net earnings (before or after taxes, interest depreciation and/or amortization), cash flow, economic value added, return on equity or on assets or on net investment, or cost containment or reduction, or any combination thereof. The Performance Criteria may include minimum and optimum objectives or a single set of objectives. The applicable Performance Criteria and specific performance target or targets ("targets") must be approved by the Committee in advance of applicable deadlines under the Code and while the performance relating to such targets remains substantially uncertain. Performance targets may be adjusted to mitigate the unbudgeted impact of material, unusual or nonrecurring gains or losses, accounting changes or other extraordinary events not foreseen at the time the targets were set, to the extent permitted by Section 162(m) and applicable regulations and interpretations thereunder. (c) Payment; Maximum Award. The Committee shall establish the method of calculating the amount of payment to be made under a Performance Award based on the extent to which the Performance Criteria are met. After the completion of an Award Period, the performance shall be measured against the Performance Criteria, and the Committee shall determine the amount to be paid under the Performance Award. The Committee, in its discretion, may elect to make payment in Shares, restricted stock, cash or any combination of Shares, restricted stock or cash, and such payment form shall be specified in the applicable Performance Award agreement. In no event shall grants of Performance Awards in any calendar year to a Participant, whether payment in cash, Shares, restricted stock or combination of cash, Shares, or restricted stock relate to a cash amount of more than $2 million. For purposes of this limit, each Performance Award which is payable in Shares or restricted stock shall be deemed to be converted as of the date of grant to an equivalent cash amount, determined by multiplying the number of Shares or restricted stock subject to such Performance Award by the closing price of a Share of the Company's Common Stock on the New York Stock Exchange as of the date of grant of the Performance Award. Performance Awards that are canceled during the year shall be counted against this limit to the extent required by Code Section 162(m). Stock options satisfying the requirements of Code 162(m) are subject to the individual limit as set forth in Section 3(a) and not the preceding individual limit. (d) Committee Certification. Before any Performance Award is paid, the Committee must certify in writing that the Performance Criteria and any other material terms of the Performance Award were satisfied; provided, however, that a Performance Award may be paid without regard to the satisfaction of the applicable Performance Criteria in the event of a change in control event, death or total disability, to the extent permitted under Section 162(m) of the Code and Section 3(b). (e) Terms and Conditions of Awards. The Committee will have the discretion to determine the restrictions or other limitations of the individual awards granted under this Section 7 including the authority to reduce awards, payouts or vesting or to pay no awards, in its sole discretion, if the Committee preserves such authority at the time of grant by language to this effect in its authorizing resolutions or otherwise. (f) Non-Transferable. Performance Awards are not transferable, and are not subject in whole or in part, to attachment, execution or levy of any kind. 8. CONTINUATION OF EMPLOYMENT. Neither this Plan nor any Incentive issued hereunder shall confer upon any Employee any right to continue in the employ of the Company or any Subsidiary or limit in any respect the right of the Company or any Subsidiary to terminate his or her employment at any time for any reason, with or without cause. 9. ADMINISTRATION. The Committee may make such rules and regulations and establish such procedures as it deems appropriate for the administration of this Plan. The Committee's authority to administer this Plan shall include, but not be limited to, the ability to accelerate or to extend the exercisability or post-termination exercise period of any or all outstanding Incentives within the maximum terms of Incentives permitted hereunder. In the event of a disagreement as to the interpretation of this Plan or any amendment thereto or any rule, regulation or procedure thereunder or as to any right or obligation arising from or related to this Plan, the decision of the Committee shall be final and binding upon all persons in interest, including the Company and its stockholders. 10. TERMINATION OR AMENDMENT OF THE PLAN. The Board without further action by the stockholders may terminate this Plan at any time prior to December 31, 2001 and may from time to time amend this Plan as permitted by applicable statutes as it deems desirable. Any amendment that would (i) materially increase the benefits accruing to Participants under this Plan, (ii) materially increase the aggregate number of securities that may be issued under this Plan, or (iii) materially modify the requirements as to eligibility for participation in this Plan, shall be subject to stockholder approval only to the extent then required by Section 422 of the Code or applicable law, or deemed necessary or advisable by the Board. Without limiting any other express authority of the Committee under but subject to the express limits of this Plan, the Committee by agreement or resolution may waive conditions of or limitations on Incentives that the Committee in the prior exercise of its discretion has imposed, without the consent of a Participant, and may make other changes to the terms and conditions of Incentives that do not affect in any manner materially adverse to the Participant, his or her rights and benefits under an Incentive. No amendment, suspension or termination of this Plan or change of or affecting any outstanding Incentive shall, without written consent of the Participant, affect in any manner materially adverse to the Participant any rights or benefits of the Participant or obligations of the Company under any Incentive granted under this Plan prior to the effective date of such change. Changes contemplated by Section 3(b) shall not be deemed to constitute changes or amendments for purposes of this Section 10. No Incentive shall be granted or issued under the Plan after December 31, 2001, but Incentives granted or issued prior thereto may extend beyond that date. 11. TAXES. Prior to any distribution of cash or stock to any Participant, appropriate arrangements shall be made for the payment of any taxes required to be withheld by federal, state or local law. The Company shall be entitled to require cash payment, to withhold the amount or to retain Shares with a fair market value equal to the amount of any tax attributable to any amount payable or Shares deliverable under the Plan after giving the person entitled to receive such amount or Shares notice as far in advance as practicable. 12. STOCKHOLDER APPROVAL OF PLAN. This Plan will be submitted for the approval of the Company's stockholders within twelve months after the date of the Board's initial adoption of this Plan or adoption of any amendments requiring stockholder approval. Options may be granted and Shares of restricted stock may be issued prior to such stockholder approval; provided, however, that such options shall not be exercisable and the restrictions on such Shares of restricted stock shall not expire or terminate prior to the time when this Plan is approved by the stockholders; provided, further, that if such approval has not been obtained at the end of said twelve-month period, all options previously granted and all Shares of restricted stock issued under this Plan shall thereupon be canceled and become null and void. No Shares may be granted or issued with respect to Performance Awards prior to stockholder approval of the amendment making such awards available as Incentives under this Plan. 13. PLAN CONSTRUCTION. (a) Rule 16b-3. It is the intent of the Company that transactions in and affecting Incentives in the case of Participants who are or may be subject to Section 16 of the Exchange Act satisfy any then applicable requirements of Rule 16b-3 so that such persons (unless they otherwise agree) will be entitled to the benefits of Rule 16b-3 or other exemptive rules under Section 16 of the Exchange Act in respect of those transactions and will not be subjected to avoidable liability thereunder. If any provision of this Plan or of any Incentive would otherwise frustrate or conflict with the intent expressed above, that provision to the extent possible shall be interpreted as to avoid such conflict. If the conflict remains irreconcilable, the Committee may disregard the provision if it concludes that to do so furthers the interest of the Company and is consistent with the purposes of this Plan as to such persons in the circumstances. (b) Rule 162(m). It is the further intent of the Company that options with an exercise price not less than fair market value on the date of grant and Performance Awards under Section 7 of this Plan that are granted to or held by a covered employee (within the meaning of Code Section 162(m) and regulations thereunder) shall qualify as performance-based compensation under Section 162(m) of the Code, and this Plan shall be interpreted consistent with such intent. EX-5 3 EXHIBIT 5 2500 Harbor Boulevard, P.O. Box 3100, Fullerton, CA 92634-3100 BECKMAN WILLIAM H. MAY Vice President, General Counsel and Secretary (714) 773-6973 April 3, 1997 Beckman Instruments, Inc. 2500 Harbor Boulevard Fullerton, CA 92834 Re: Registration Statement on Form S-8 of Beckman Instruments, Inc. (the "Company") Ladies and Gentlemen: At your request, I have examined the Registration Statement on Form S-8 (the "Registration Statement") 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 (the "Shares") of Common Stock, par value $0.10 per share, of the Company (the "Common Stock"), to be issued pursuant to the Beckman Instruments, Inc. Incentive Compensation Plan of 1990 (the "Plan"). I have examined the proceedings heretofore taken and to be taken in connection with the authorization of the Plan and the Common Stock 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, will be validly issued, fully paid and non-assessable shares of Common Stock. I consent to the use of this opinion as an exhibit to the Registration Statement. Respectfully submitted, /s/ William H. May William H. May, Esq. Vice President, General Counsel and Secretary EX-23.1 4 EXHIBIT 23.1 The Board of Directors Beckman Instruments, Inc.: We consent to the use of our report incorporated herein by reference. Our report refers to a change in accounting to adopt the provisions of Financial Standards Board's Statement of Financial Accounting Standards No. 112, "Employers' Accounting for Postemployment Benefits," in 1994. /s/ KPMG Peat Marwick LLP KPMG Peat Marwick LLP Orange County, California April 8, 1997 -----END PRIVACY-ENHANCED MESSAGE-----