-----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, AbcGuii0PBJbxPx+RxV5tA/QJfHrWpM8ZeTUMysgrCMdZqARJ9YO8azuWVM5yBhs ZmWFQByjv/1/dy9+P6AQVg== 0000902595-02-000065.txt : 20020731 0000902595-02-000065.hdr.sgml : 20020731 20020730174151 ACCESSION NUMBER: 0000902595-02-000065 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20020731 EFFECTIVENESS DATE: 20020731 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BECKMAN COULTER 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: 333-97383 FILM NUMBER: 02715164 BUSINESS ADDRESS: STREET 1: 4300 N HARBOR BLVD STREET 2: PO BOX 3100 CITY: FULLERTON STATE: CA ZIP: 92834-3100 BUSINESS PHONE: 7147736907 MAIL ADDRESS: STREET 1: 4300 N HARBOR BLVD STREET 2: PO BOX 3100 CITY: FULLERTON STATE: CA ZIP: 92834-3100 FORMER COMPANY: FORMER CONFORMED NAME: BECKMAN INSTRUMENTS INC DATE OF NAME CHANGE: 19920703 S-8 1 forms8_557256.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on July 30, 2002 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, Including Zip Code, of Principal Executive Offices) ------------------- BECKMAN COULTER, INC. EXECUTIVE DEFERRED COMPENSATION PLAN BECKMAN COULTER, INC. EXECUTIVE RESTORATION PLAN BECKMAN COULTER, INC. DEFERRED DIRECTORS' FEE PROGRAM (Full Title of the Plan) ------------------- William H. May, Esq. Vice President, General Counsel and Secretary Beckman Coulter, Inc. 4300 North Harbor Boulevard, Fullerton, California 92834-3100 (714) 871-4848 (Name, Address and Telephone Number, Including Area Code, of Agent For Service) ------------------- CALCULATION OF REGISTRATION FEE ------------------------------------------------------------------------ Proposed Proposed Title Of Maximum Maximum Securities Amount Offering Aggregate Amount Of To Be To Be Price Offering Registration Registered Registered Per Unit Price Fee ------------------------------------------------------------------------ Common Stock, 500,000 $39.47(3) $19,735,000(3) $1,816(3) par value shares(1)(2) $0.10 per share ------------------------------------------------------------------------ (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(c) under the Securities Act of 1933, as amended (the "Securities Act"), an additional indeterminate number of shares and rights which by reason of certain events specified in the Beckman Coulter, Inc. Executive Deferred Compensation Plan, in the Beckman Coulter, Inc. Executive Restoration Plan, and in the Beckman Coulter, Inc. Deferred Directors' Fee Program (together, the "Plans"), may become subject to the Plans. (2)Each share is accompanied by a preferred stock purchase right pursuant to a Stockholder Protection Rights Agreement between Beckman Coulter, Inc. and First Chicago Trust Company of New York, as Rights Agent, dated as of February 4, 1999. (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 July 24, 2002. The Exhibit Index for this Registration Statement is at page 8. ========================================================================= PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The document(s) 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 Securities Act Rule 428(b)(1). 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 Securities Act Rule 424. 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 Coulter, Inc. (the "Company") filed with the Commission are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for its fiscal year ended December 31, 2001, filed with the Commission on February 22, 2002; (b) The Company's Quarterly Report on Form 10-Q for its quarterly period ended March 31, 2002, filed with the Commission on May 10, 2002; (c) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on or about April 25, 1989, together with an amendment thereto filed on July 2, 1992, and any other amendment or report filed for the purpose of updating such description; and (d) The description of the Company's Common Share Purchase Rights contained in the Company's Registration Statement on Form 8-A filed with the Commission on February 9, 1999 (which incorporates such description from the Current Report on Form 8-K filed by the Company with the Commission on February 8, 1999), and any amendment or report filed for the purpose of updating such description. 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 this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES The Company's Common Stock, par value $0.10 per share (the "Common Stock"), is registered pursuant to Section 12 of the Exchange Act, and, therefore, the description of securities is omitted. 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 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 one or more of the Plans. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the General Corporation Law of Delaware (the "DGCL") empowers the Company to indemnify, subject to the standards set forth therein, any person who is a party to any action in connection with any action, suit or proceeding brought or threatened by reason of the fact that the person was a director, officer, employee or agent of the Company, or is or was serving as such with respect to another entity at the request of the Company. The DGCL also provides that the Company may purchase insurance on behalf of any such director, officer, employee or agent. Section 14 of the Company's Fifth Restated Certificate of Incorporation provides that the Company will indemnify any person to whom, and to the fullest extent, indemnification may be required or permitted under Section 145 of the DGCL. Section 102(b)(7) of the DGCL enables a Delaware corporation to provide in its certificate of incorporation for the elimination or limitation of the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Any such provision cannot eliminate or limit a director's liability (1) for any breach of the director's duty of loyalty to the corporation or its stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the DGCL (which imposes liability on directors for unlawful payment of dividends or unlawful stock purchase or redemption); or (4) for any transaction from which the director derived an improper personal benefit. Section 13 of the Company's Fifth Restated Certificate of Incorporation eliminates the liability of a director of the Company to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL. The Company carries policies of insurance which cover the individual directors and officers of the registrant for legal liability and which would pay on behalf of the registrant for expenses of indemnification of directors and officers. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS SEE the attached Exhibit Index at page 8. ITEM 9. UNDERTAKINGS (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. (h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, executive officers and controlling persons of the registrant pursuant to the provisions described in Item 6 above, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 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 July 11, 2002. BECKMAN COULTER, INC. By: /S/ JOHN P. WAREHAM John P. Wareham Its: Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints John P. Wareham, Amin I. Khalifa, and Fidencio M. Mares, 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. SIGNATURE TITLE DATE /S/ JOHN P. WAREHAM Chairman of the Board, President July 11, 2002 - ------------------- and Chief Executive Officer John P. Wareham (Principal Executive Officer) /S/ AMIN I. KHALIFA Vice President, Finance and July 11, 2002 - ------------------- Chief Financial Officer Amin I. Khalifa (Principal Financial Officer) /S/ DAVID M. WAMBOLD Director/Controller July 23, 2002 - -------------------- (Principal Accounting Officer) David M. Wambold /S/ HUGH K. COBLE Director July 11, 2002 - ----------------- Hugh K. Coble /S/ PETER B. DERVAN Director July 11, 2002 - ------------------- Peter B. Dervan , Ph.D. _______________________ Director Ronald W. Dollens /S/ CHARLES A. HAGGERTY Director July 11, 2002 - ----------------------- Charles A. Haggerty /S/ GAVIN S. HERBERT Director July 11, 2002 - -------------------- Gavin S. Herbert /S/ VAN B. HONEYCUTT Director July 11, 2002 - -------------------- Van B. Honeycutt /S/ WILLIAM N. KELLEY Director July 11, 2002 - --------------------- William N. Kelley, M.D. /S/ RISA J. LAVIZZO-MOUREY Director July 11, 2002 - -------------------------- Risa J. Lavizzo-Mourey, M.D. /S/ C. RODERICK O'NEIL Director July 11, 2002 - ---------------------- C. Roderick O'Neil /S/ GLENN S. SCHAFER Director July 11, 2002 - -------------------- Glenn S. Schafer /S/ BETTY WOODS Director July 11, 2002 - --------------- Betty Woods EXHIBIT INDEX Exhibit NUMBER DESCRIPTION 4.1 Beckman Coulter, Inc. Executive Deferred Compensation Plan (Amended and Restated Effective as of May 1, 2002). 4.2 Beckman Coulter, Inc. Executive Restoration Plan (Amended and Restated Effective as of May 1, 2002). 4.3 Beckman Coulter, Inc. Deferred Directors' Fee Program (Amended and Restated Effective as of May 1, 2002). 4.4 Master Trust Agreement for Beckman Coulter, Inc.'s Executive Plans. 4.5 Stockholder Protection Rights Agreement between Beckman Coulter, Inc. and First Chicago Trust Company of New York, as Rights Agent, dated as of February 4, 1999 (incorporated by reference to Exhibit 4 of Beckman Coulter, Inc.'s Current Report on Form 8-K filed with the Securities and Exchange Commission on February 8, 1999, File No. 995-23266). 5. Opinion of Company Counsel (opinion re legality). 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 Exhibit 5). 24. Power of Attorney (included in this Registration Statement under "Signatures"). EX-5 3 ex5_opinion.txt OPINION OF COMPANY COUNSEL EXHIBIT 5 [Beckman Coulter, Inc. Logo] July 22, 2002 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 500,000 shares of Common Stock, par value $0.10 per share, of Beckman Coulter, Inc. (the "Common Stock"), and additional rights pursuant to the Company's Stockholder Protection 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 or delivered pursuant to the Beckman Coulter, Inc. Executive Deferred Compensation Plan, the Beckman Coulter, Inc. Executive Restoration Plan, and/or the Beckman Coulter, Inc. Deferred Directors' Fee Program (together, the "Plans"). I have examined the proceedings heretofore taken and to be taken in connection with the authorization of the Plans and the Shares to be issued or delivered pursuant to and in accordance with the Plans. 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 Plans and relevant agreements duly authorized by and in accordance with the terms of the Plans, the Rights will be validly issued and the Common Stock will be validly issued, fully paid and nonassessable. 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-15 4 ex15_kpmgltr.txt KMPG LETTER EXHIBIT 15 [KPMG LLP Letterhead] Beckman Coulter, Inc. Fullerton, California Ladies and Gentlemen: Re: Registration Statement on Form S-8 relating to the Beckman Coulter, Inc. Executive Deferred Compensation Plan, Executive Restoration Plan, and Deferred Directors' Fee Program With respect to the subject registration statement, we acknowledge our awareness of the use therein of our report dated April 26, 2002, related to our review of interim financial information. Pursuant to Rule 436(c) under the Securities Act of 1933, such report is 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 Costa Mesa, California July 26, 2002 EX-23 5 ex231_consent.txt EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS The Board of Directors Beckman Coulter, Inc.: We consent to incorporation herein by reference of our audit report dated January 25, 2002, relating to the consolidated balance sheets of Beckman Coulter, Inc. and subsidiaries as of December 31, 2001 and 2000, 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, 2001, which report is incorporated by reference in the December 31, 2001, annual report on Form 10-K of Beckman Coulter, Inc. /s/ KPMG LLP Costa Mesa, California July 26, 2002 EX-4 6 ex41_execdefercomp.txt EXHIBIT 4.1 EXECUTIVE DEFERRED COMPENSATION PLAN BECKMAN COULTER, INC. ===================== EXECUTIVE DEFERRED COMPENSATION PLAN ==================================== (AMENDED AND RESTATED EFFECTED AS OF MAY 1, 2002) ================================================= BECKMAN COULTER, INC. ===================== EXECUTIVE DEFERRED COMPENSATION PLAN ==================================== (AMENDED AND RESTATED EFFECTIVE AS OF MAY 1, 2002) ================================================== WHEREAS, Beckman Coulter, Inc. (the "Company"), originally established a deferred compensation plan to provide supplemental retirement income benefits for a select group of management and highly compensated employees through deferrals of salary and bonuses effective as of January 1, 1998; and WHEREAS, the Company has the right to amend the Plan, and the Company now wishes to amend and restate the Plan to (i) provide that distributions of benefits valued by reference to Company Common Stock be distributed in the form of stock instead of cash; (ii) add provisions consistent with the establishment of a grantor trust for the purpose of satisfying some or all of the Company's obligations under this plan; and (iii) make certain other miscellaneous changes. NOW, THEREFORE, the Plan is amended and restated effective as of May 1, 2002; provided, however, that the officers of the Company shall implement the provisions regarding stock distributions as soon thereafter as reasonably feasible, and the officers may phase in the provisions regarding stock distributions over a period of time if the officers determine that such a phase-in would be in the interests of the Company. 1 ARTICLE I TITLE AND DEFINITIONS ===================== 1.1 TITLE. This Plan shall be known as the "Beckman Coulter, Inc. Executive Deferred Compensation Plan." 1.2 DEFINITIONS. Whenever the following words and phrases are used in this Plan, with the first letter capitalized, they shall have the meanings specified below. "Account" or "Accounts" shall mean a Participant's Cash Deferral Account and/or Stock Unit Account. The Committee may establish such additional accounts or subaccounts as it deems necessary for the proper administration of the Plan. "Administrator" shall mean the person selected as provided in the Trust Agreement to administer the Plan upon and after a Change in Control Event. "Beneficiary" or "Beneficiaries" shall mean the person or persons, including a trustee, personal representative or other fiduciary, who have been designated as or who are deemed to be the Participant's "Beneficiary" or "Beneficiaries" under the 401(k) Plan and who shall receive the benefits specified hereunder in the event of the Participant's death. Notwithstanding the above, a Participant may designate or change such designation of his or her Beneficiary or Beneficiaries for purposes of this Plan by filing, on a form provided by the Committee and on such terms and conditions as the Committee may prescribe, a Beneficiary designation. No such Beneficiary designation shall become effective until it is filed with the Committee. Such Beneficiary designation shall thereafter remain in effect with respect to this Plan until a new Beneficiary designation is filed with the Committee pursuant to the terms hereof. In the event any amount is payable under this Plan to a minor, payment shall not be made to the minor, but instead shall be paid (i) to that person's living parent(s) to act as custodian, (ii) if that person's parents are then divorced, and one parent is the sole custodial parent, to such custodial parent, or (iii) if no parent of that person is then living, to a custodian selected by the Committee to hold the funds for the minor under the Uniform Transfers or Gifts to Minors Act in effect in the jurisdiction in which the minor resides. If no parent is living and the Committee decides not to select another custodian to hold the funds for the minor, then payment shall be made to the duly appointed and currently acting guardian of the estate for the minor or, if no guardian of the estate for the minor is duly appointed and currently acting within 60 days after the date the amount becomes payable, payment shall be deposited or made with the court having jurisdiction over the estate of the minor. 2 "Board of Directors" or "Board" shall mean the Board of Directors of Beckman Coulter, Inc. "Bonus" shall mean any annual incentive compensation payable to a Participant in accordance with the Executive or Management Incentive Plans (or their successors) that is in addition to the Participant's Salary. "Cash Deferral Account" shall mean the bookkeeping account maintained by the Company on behalf of a Participant who elects to defer his or her Salary and/or Bonus in cash pursuant to Section 3.1. In addition, the Cash Deferral Account of each Participant eligible to receive a Sign-On Credit may be credited with an additional amount in accordance with such Participant's election under Section 3.2. "Change in Control Event" shall mean the following for purposes of this Plan and shall be deemed to occur if any of the following events occur: (i) any "person," as such term is used in Sections 13(d) and 14(d) of the Exchange Act, other than an employee benefit plan of Beckman Coulter, Inc. ("Beckman Coulter"), or a trustee or other fiduciary holding securities under an employee benefit plan of Beckman Coulter, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Beckman Coulter representing 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities, provided that, no Change in Control Event shall be deemed to occur solely because a corporation (the "seller") owns 15% or more of Beckman Coulter voting securities if such ownership is only a transitory step in a reorganization whereby Beckman Coulter purchases the assets of the seller for Beckman Coulter voting securities and the seller liquidates shortly thereafter; 3 (ii) individuals who, as of the date hereof, constitute the Board of Beckman Coulter (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Beckman Coulter stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of Beckman Coulter, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall be considered as though such person were a member of the Incumbent Board of Beckman Coulter; (iii) the stockholders of Beckman Coulter approve a merger or consolidation with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of Beckman Coulter outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of another entity) more than 85% of the combined voting power of the voting securities of Beckman Coulter or such other entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of Beckman Coulter (or similar transaction) in which no person acquires 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities; or (iv) the stockholders of Beckman Coulter approve a plan of complete liquidation of Beckman Coulter or an agreement for the sale or disposition by Beckman Coulter of all or substantially all of Beckman Coulter's assets. Notwithstanding the preceding sentence, a Change in Control Event shall not be deemed to have occurred if the "person" described in the preceding sentence is an underwriting syndicate which has acquired the ownership of 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities solely in connection with a public offering of Beckman Coulter's securities. If, after any of the events deemed to constitute a Change in Control Event occurs, the transaction approved by the stockholders does not actually transpire, the Change in Control Event will be retroactively deemed not to have occurred. 4 "Code" shall mean the Internal Revenue Code of 1986, as amended. "Committee" shall mean the Organization and Compensation Committee of the Board or its delegate(s) which administers this Plan in accordance with Article VIII. "Common Stock" shall mean the Common Stock of the Company (or such other publicly traded common stock with respect to which Stock Units are designated after a corporate transaction as set forth in Section 9.3). "Company" shall mean Beckman Coulter, Inc., any successor corporation and each corporation which is a member of a controlled group of corporations (within the meaning of Section 414(b) of the Code) of which Beckman Coulter, Inc. is a component member. Upon and after a Change in Control Event, Company shall include any successor to Beckman Coulter, Inc. or a substantial portion of its assets. "Disability" shall mean that the Participant (1) has terminated employment with the Company, and (2) at the date of such termination, is disabled within the meaning of Section 22(e)(3) of the Code. The Participant must furnish proof of disability in such form and manner, and at such times, as the Company may require. A consideration of disability hereunder does not mean or imply that the Participant qualifies for any disability-related benefits under any other plan or program of the Company, and each such other plan or program is or may be governed by separate requirements which differ from those applied herein. "Distribution Amount" shall mean the amount of a Participant's Cash Deferral Account and Stock Unit Account (together with earnings and Dividend Equivalents credited pursuant to Sections 4.1(c) and 4.2(f) respectively) associated with a particular Plan Year's deferral and distribution election. 5 "Dividend Equivalent" shall mean the amount of cash dividends or other cash distributions paid by the Company on that number of shares of Common Stock which is equal to the number of Stock Units then credited to a Participant's Stock Unit Account, which amount shall be allocated as additional Stock Units to such Participant's Stock Unit Account, as provided in Section 4.2. "Eligible Employee" shall mean an officer or other highly compensated employee of the Company who has been selected by the Committee to participate in this Plan. The Committee shall limit Eligible Employee status to a select group of management or highly compensated employees, as set forth in Sections 201, 301 and 401 of ERISA. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. "Fair Market Value" shall mean: (1) If the Common Stock is being valued in connection with a transaction (such as the crediting of amounts to an Account or a distribution) for which the Committee determines there is a corresponding transaction by the Trust, the net price per share of Common Stock purchased or the net proceeds per share of Common Stock sold in the transaction by the Trust, in each case including all expenses of such transaction by the Trust. (2) If paragraph (1) does not apply, (a) the closing price of the Common Stock on the New York Stock Exchange on the date for which the fair market value is determined, or, if there is no trading of the Common Stock on such date, then the closing price of the Common Stock on the New York Stock Exchange on the next preceding date on which there was trading in such shares; or (b) if the Common Stock is not listed, admitted or quoted, the Committee may designate such other source of data as it deems appropriate for determining such value for purposes of this Plan. 6 "401(k) Plan" means the Beckman Coulter, Inc. Savings Plan, as it may be amended from time to time. "Interest Rate" shall mean, for each Plan Year, the prime rate of interest established by Bank of America, NT&SA in effect as of the July 31 preceding the relevant Plan Year. "Layoff" shall mean that a Participant has terminated from employment with the Company as a result of a layoff and such termination is classified as such in the Company's payroll records. "Participant" shall mean any Eligible Employee who elects to defer a portion of his or her Salary and/or Bonus in accordance with Section 3.1 and who satisfies the participation requirements of Article II. "Plan" shall mean the Beckman Coulter, Inc. Executive Deferred Compensation Plan set forth herein, now in effect, or as amended from time to time. This Plan constitutes an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, as set forth in Sections 201, 301 and 401 of ERISA. "Plan Year" shall mean each 12 consecutive month period beginning on January 1. "Premium Percentage" shall mean the percentage used for the crediting of Premium Units determined pursuant to Section 4.2(c)(ii) of the Plan. "Premium Units" shall mean the Stock Units credited to a Participant's Stock Unit Account resulting from the premium associated with the Participant's deferral of a particular percentage of Bonus and/or Sign-On Credit in the form of Stock Units pursuant to Sections 4.2(c)(ii) and/or Section 4.2(g), as the case may be. 7 "Retirement" shall mean the Participant's termination of employment on or following the date the Participant has completed (1) five or more years of service, and the Participant's whole years of age plus whole years of service total 65 or more, or (2) one or more years of service, and the Participant is age 65 or greater. For a Participant who is eligible to participate in either the Beckman Coulter, Inc. Pension Plan or the Retirement Plus program under the 401(k) Plan, "years of service" in the preceding sentence shall mean years of service as calculated for vesting purposes in the applicable plan. For a Participant who is not eligible to participate in either the Beckman Coulter, Inc. Pension Plan or the Retirement Plus program under the 401(k) Plan, years of service shall mean complete years of service with the Company determined according to the Participant's anniversary date maintained by the Company; provided that for a Participant whose employment with the Company began as a result of an acquisition by the Company, service is determined using the acquisition date. "Salary" shall mean the Participant's "Plan Compensation" (as such term is defined in the 401(k) Plan, but without regard to the limit Section 401(a)(17) of the Code) prior to any deferrals under this Plan or any other deferred compensation plan of the Company, except for Bonus. "Sign-On Credit" shall mean an amount set forth in the Participant's offer of employment letter from the Company to be credited to a newly hired Participant's Accounts(s) as an incentive to the Participant to become an employee of the Company. The Sign-On Credit shall be offered only to Eligible Employees who are classified by the Company as Vice President/Director or above. "Stock Unit" or "Unit" shall mean a non-voting unit of measurement which is deemed for bookkeeping purposes to be equivalent to one outstanding share of Common Stock of the Company solely for purposes of this Plan. The Units credited to a Participant's Stock Unit Account shall be used solely as a device for the determination of the value of the Participant's Stock Unit Account, to be eventually distributed in Common Stock held by the Trust to such Participant in accordance with this Plan. The value of a Unit will vary on any given date due to market fluctuations in the price of Common Stock. The Units shall not be treated as property or as a trust fund of any kind. No Participant shall be entitled to any voting or other stockholder rights with respect to Units granted or credited under this Plan. The number of Units credited shall be subject to adjustment in accordance with Section 9.3. 8 "Stock Unit Account" shall mean the bookkeeping account maintained by the Company on behalf of each Participant who elects to defer his or her Salary and/or Bonus in Stock Units pursuant to Section 3.1. In addition, each Participant's Stock Unit Account shall be credited with Company matching contributions in the form of additional Stock Units in accordance with Section 4.2(d), and, in the case of Participants eligible for contributions to the 401(k) Plan under the Retirement Plus provisions of the 401(k) Plan, Company Retirement Plus contributions in the form of additional Stock Units in accordance with Section 4.2(e). In addition, the Stock Unit Account of each Participant eligible to receive a Sign-On Credit may be credited with an additional amount in the form of Stock Units pursuant to the Participant's election under Section 4.2(g). "Trust" shall mean a grantor trust established and funded by the Company for the purpose of satisfying some or all of the Company's obligations under the Plan. "Trust Agreement" shall mean the agreement by and between the Company and the Trustee establishing the Trust. "Valuation Date" shall mean, as applicable, such date(s) that the Distribution Amount(s) are valued pursuant to Section 6.1(b) or that Account balances are determined for purposes of early or hardship withdrawals pursuant to Section 6.3(c). ARTICLE II PARTICIPATION ============= 2.1 PARTICIPATION. Participation in the Plan is voluntary. An Eligible Employee shall become a Participant in this Plan by electing to defer a portion of his or her Salary and/or Bonus in accordance with Article III. 9 ARTICLE III DEFERRAL ELECTIONS ================== 3.1 ELECTIONS TO DEFER SALARY AND/OR BONUS. (a) DEFERRAL ELECTIONS. The Committee shall notify each Eligible Employee of his or her eligibility to participate in the Plan; provided, however, that an Eligible Employee's deferral of Salary and/or Bonus under this Plan for any Plan Year may only commence after the Eligible Employee has satisfied the participation requirement of Article II. An Eligible Employee's elections to participate may be made by telephonic means in accordance with rules and procedures established by the Committee. In addition, notwithstanding anything else contained herein to the contrary, no Eligible Employee shall be allowed to defer Salary and/or Bonus to the extent the Committee determines in its discretion that such compensation should be withheld to pay the Eligible Employee's portion of taxes under the Federal Insurance Contributions Act, any state, federal or local income taxes, payments required to maintain coverage for the Eligible Employee or the Eligible Employee's dependents under any welfare plan or program of the Company, or any similar payment. (b) ANNUAL ELECTION TO DEFER SALARY. To participate through the deferral of Salary for any Plan Year, an Eligible Employee must file an election with the Committee no later than the date established by the Committee. Such date shall precede the first day of the Plan Year during which the deferral election shall be effective. (c) ANNUAL ELECTION TO DEFER BONUS. To participate through the deferral of a Bonus for any Plan Year, an Eligible Employee must file a separate election with the Committee no later than the date established by the Committee. Such date shall be no later than November 30 of the Plan Year to which it applies. (d) ELECTION FOR NEWLY HIRED EMPLOYEE. An Eligible Employee whose employment with the Company commences during a Plan Year may elect to participate in the Plan during such Plan Year by filing a Salary deferral election with the Committee prior to the date in which he or she first becomes eligible to participate in the 401(k) Plan. With respect to Salary earned on or after this eligibility date, such deferral election shall become effective with the next pay period following such eligibility date for which it is administratively practical for participation to begin. An Eligible Employee whose initial employment with the Company commences on or prior to the published deadline for the deferral of a Bonus may make a separate written election with respect to the deferral of his or her Bonus for that Plan Year, which separate election must be filed with the Committee no later than the published deadline for that Plan Year. 10 (e) METHOD OF DEFERRAL. Each participation election shall signify the portion of the Eligible Employee's Salary and/or Bonus that he or she elects to defer. The Participant also will make a single election for the time and form of payment of each Plan Year's deferred compensation (Salary and/or Bonus, Company matching contributions, Company Retirement Plus contributions, Premium Units, and allocable earnings) to be distributed to him or her as set forth herein. An election to defer Salary for a Plan Year shall apply to all Salary earned during each pay period beginning in such Plan Year. An election to defer Bonuses for a Plan Year shall apply to any Bonus paid with respect to services performed during such Plan Year, even if payment would otherwise be made after the close of such Plan Year, provided that such deferral election is made by the applicable deadline described in the preceding subsections of this Section 3.1. (i) A Participant's election to defer his or her Salary and/or Bonus under the Plan shall specify whether such amount is to be deferred in 1% increments in the form of (1) cash, in accordance with Section 4.1, and/or (2) Stock Units, in accordance with Section 4.2. (f) AMOUNT OF DEFERRALS. Subject to the withholding requirements of Section 3.1 (a) above, the amount of Salary and/or Bonus which an Eligible Employee may elect to defer is as follows: (i) Any percentage of Salary (in 1 % increments) from 10% up to 70%; and (ii) Any percentage of Bonus (in 1% increments) from 20% up to 80%. 11 (g) DURATION OF DEFERRAL ELECTION. Any deferral election made under paragraphs (b), (c) or (d) of this Section 3.1 shall remain in effect and, except as provided in Subsection 3.1(h), be irrevocable, notwithstanding any change in the Participant's Salary or Bonus, for the entire Plan Year for which it is effective. (h) EMERGENCY CESSATION OF DEFERRALS. Notwithstanding anything contained herein to the contrary, a Participant may discontinue his or her Salary and Bonus deferrals under the Plan at any time, provided that the Participant also ceases at the same time to make any before-tax deferrals, after-tax contributions, and if applicable, catch-up contributions under the 401(k) Plan and the Beckman Coulter, Inc. Executive Restoration Plan. Such discontinuance of deferrals, after-tax contributions and catch-up contributions will remain in effect for the remainder of the current Plan Year and the following Plan Year. 3.2 SIGN-ON CREDIT ELECTIONS. An Eligible Employee whose employment with the Company commences on or after July 1, 2000 and who is notified in an offer of employment letter of his or her eligibility to receive a Sign-On Credit under the Plan, shall make a single election with respect to the time and form of payment of his or her Sign-On Credit to be distributed to him or her as set forth in Section 6.1 below. In addition, such election shall specify whether the Eligible Employee's Sign-On Credit is to be deferred in 1% increments in the form of (i) cash, in accordance with Section 4.1 and/or (ii) Stock Units, in accordance with Section 4.2(g). Any election made under this Section 3.2 shall be made according to the rules prescribed by the Committee and shall be irrevocable. Such an Eligible Employee shall become a Participant as of the date the Sign-On Credit is credited under the Plan. 12 ARTICLE IV ACCOUNTS ======== 4.1 CASH DEFERRAL ACCOUNT. The Committee shall establish and maintain a Cash Deferral Account for each Participant under the Plan. A Participant's Cash Deferral Account shall be credited as follows: (a) INITIAL CREDITING OF SALARY TO CASH DEFERRAL ACCOUNT. As soon as administratively practical after submission of each pay period report, the Plan's recordkeeper shall credit the Participant's Cash Deferral Account with an amount equal to the portion of Salary deferred by the Participant during that pay period in accordance with the Participant's election under Section 3.1(e); that is, the portion of the Participant's Salary that the Participant has elected to be deferred under his or her Cash Deferral Account. (b) INITIAL CREDITING OF BONUS TO CASH DEFERRAL ACCOUNT. As soon as administratively practical after submission of each pay period report for the period in which the Bonus is paid, the Plan's recordkeeper shall credit the Participant's Cash Deferral Account with an amount equal to the portion of the Bonus deferred in accordance with the Participant's election under Section 3.1(e); that is, the portion of the Participant's Bonus that the Participant has elected to be deferred under his or her Cash Deferral Account. (c) CREDITING OF EARNINGS. Interest is accrued daily at the applicable Interest Rate based on the daily Account balance and credited monthly to the Participant's Cash Deferral Account. For purposes of crediting earnings to such Account, the Interest Rate used may fluctuate from Plan Year to Plan Year and the Interest Rate in effect in a particular Plan Year shall apply to the Participant's entire Account balance without regard to the Plan Year in which any portion of the Account balance was deferred. 13 (d) CREDITING OF SIGN-ON CREDIT TO CASH DEFERRAL ACCOUNT. On or as soon as administratively practical following the last day of the initial pay period in which a Participant's employment with the Company commences (or, if later, the date or dates set forth in the Participant's offer of employment letter), the Committee shall credit the Participant's Cash Deferral Account with an amount equal to the portion of the Sign-On Credit (if any) that the Participant has elected to be deferred under his or her Cash Deferral Account pursuant to Section 3.2. 4.2 STOCK UNIT ACCOUNT; DIVIDEND EQUIVALENTS. (a) STOCK UNIT ACCOUNT. The Committee shall establish and maintain a Stock Unit Account for each Participant under the Plan. A Participant's Stock Unit Account shall be credited with the portion of his or her Salary and/or Bonus he or she has elected pursuant to Section 3.1 to defer in the form of Stock Units. In addition, the Participant's Stock Unit Account shall be credited with Company matching contributions in the form of additional Stock Units in accordance with Section 4.2(d), and, in the case of Participants eligible for contributions to the 401(k) Plan under the Retirement Plus provisions of the 401(k) Plan, Company Retirement Plus contributions in the form of additional Stock Units in accordance with Section 4.2(e). Effective January 1, 2001, no additional credits under Sections 4.2(d) and 4.2(e) shall be made. (b) CREDITING OF SALARY TO STOCK UNIT ACCOUNT. As soon as administratively practical after submission of each pay period report, the Plan's recordkeeper shall credit the Participant's Stock Unit Account with a number of Units determined by dividing the applicable portion of the Participant's deferred Salary by the Fair Market Value of a share of Common Stock. 14 (c) CREDITING OF BONUS TO STOCK UNIT ACCOUNT. As soon as administratively practical after submission of each pay period report for the period in which the deferred Bonus is paid, the Plan's recordkeeper shall credit the Participant's Stock Unit Account with a number of Units which is equal to the amount of the Participant's Bonus deferred in Stock Units, divided by the Fair Market Value of a share of Common Stock. Such Account shall also be credited with the number of Premium Units which is equal to the product of the number of Stock Units determined in the preceding sentence, multiplied by the applicable Premium Percentage determined under the following table with respect to the percentage of Bonus that the Participant has elected to defer in the form of Stock Units for that Plan Year: PERCENTAGE OF BONUS DEFERRED PREMIUM IN THE FORM OF STOCK UNITS PERCENTAGE ========================== ========== 0 to 34% 0% 35% to 49% 15% 50% to 69% 20% 70% to 80% 30% (d) COMPANY MATCHING CONTRIBUTIONS. As soon as administratively practical after submission of each pay period report, the Plan's recordkeeper shall credit the Participant's Stock Unit Account with a number of additional Units determined by dividing the product of (i) and (ii) by (iii), where (i) is an amount equal to the sum of Salary and Bonus deferred by the Participant during such pay period under Sections 4.1(a), 4.1(b), 4.2(b) and 4.2(c) (but without regard to any Premium Units), and (ii) is 3.5%, and (iii) is the Fair Market Value of a share of Common Stock based on the price used to credit Company matching contributions under the 401(k) Plan for that pay period. Effective January 1, 2001, no additional credits under this Section 4.2(d) shall be made. 15 (e) RETIREMENT PLUS CONTRIBUTIONS. As soon as administratively practical following each quarter, the Plan's recordkeeper shall credit the Stock Unit Account of each Participant who is eligible for a contribution to the 401(k) Plan under the Retirement Plus provisions of the 401(k) Plan with a number of additional Units determined by dividing (i) by (ii), where (i) is the additional amount that the Company would have contributed to the Participant's Retirement Plus Contributions Account under the 401(k) for that quarter if the Participant had not deferred the amount of Compensation deferred under this Plan for that quarter and (ii) is the Fair Market Value of a share of Common Stock based on the price used to credit Retirement Plus contributions under the 401(k) Plan for that quarter. Quarterly contributions shall cease effective with the quarter commencing January 1, 2001. Effective for the contributions made on account of Plan Years commencing January 1, 2001 and thereafter, the contributions under this sub-paragraph (e) shall be credited on an annual basis corresponding to the timing of the contributions under the Retirement Plus provisions of the 401(k) Plan. Effective January 1, 2001, no additional credits under this Section 4.2(e) shall be made. (f) DIVIDEND EQUIVALENTS. As soon as administratively practical following any date on which dividends are paid on Common Stock, a Participant's Stock Unit Account shall be credited with additional Units in an amount equal to the amount of the Dividend Equivalents representing cash dividends paid on that number of shares which is equal to the aggregate Stock Units in the Participant's Stock Unit Account as of the record date established for the dividend payment, divided by the Fair Market Value of a share of Common Stock. (g) CREDITING OF SIGN-ON CREDIT TO STOCK UNIT ACCOUNT. On or as soon as administratively practical following the last day of the initial pay period in which a Participant's employment with the Company commences (or, if later, the date or dates set forth in the Participant's offer of employment letter), a Participant's Stock Unit Account shall be credited with a number of Units equal to the sum of (i) and (ii), where (i) is the number of Stock Units which is equal to the applicable portion of the Participant's Sign-On Credit divided by the Fair Market Value of a share of Common Stock, and (ii) is the number of Premium Units which is equal to the product of the number of Stock Units determined in (i) above, multiplied by the applicable percentage (not to exceed thirty percent) determined in accordance with the table set forth in the Participant's offer letter with respect to the percentage of Sign-On Credit that the Participant has elected to defer in the form of Stock Units. 16 (h) CREDITING OF EARNINGS. In the event that benefits cease to be denominated in Stock Units (as determined under Section 9.3), interest will be accrued daily at the applicable Interest Rate based on the daily Stock Unit Account balance and credited monthly to the Participant's Stock Unit Account. For purposes of crediting earnings to such Account, the Interest Rate used may fluctuate from Plan Year to Plan Year and the Interest Rate in effect in a particular Plan Year shall apply to the Participant's entire Stock Unit Account balance without regard to the Plan Year in which any portion of the Stock Unit Account balance was deferred. ARTICLE V VESTING ======= 5.1 VESTING. (a) CASH DEFERRAL ACCOUNT. A Participant's Cash Deferral Account shall be 100% vested at all times. (b) STOCK UNIT ACCOUNT. The interest of each Participant in the Units credited to his or her Stock Unit Account shall be 100% vested; provided, however, that Units representing Premium Units shall not vest until two years after the November 30 of the Plan Year in which such Units are credited. Stock Units attributable to Dividend Equivalents shall be vested to the same extent as the underlying Units to which they relate. In the event that a Participant's employment with the Company terminates for reasons other than death, Retirement, Disability or layoff prior to the date any Units representing Premium Units (including Units representing Dividend Equivalents thereon) have become vested, the Participant shall forfeit the number of Units credited to his or her Stock Unit Account representing such non-vested Premium Units (including Units representing Dividend Equivalents thereon). In the event that a Participant's employment with the Company terminates by reason of death, Retirement, Disability or layoff, the Participant's Account shall be fully vested and distributed to the Participant (or, in the event of his or her death, Beneficiary). Notwithstanding the foregoing, upon the occurrence of a Change in Control Event, each Participant's entire Stock Unit Account (including any Units representing Premium Units, and Dividend Equivalents thereon) shall be immediately 100% vested. 17 ARTICLE VI DISTRIBUTIONS ============= 6.1 DISTRIBUTION OF ACCOUNTS. (a) TIME AND FORM OF DISTRIBUTION. A Participant shall elect to receive a Distribution Amount in accordance with the following options: (i) SINGLE LUMP SUM ON TERMINATION. A lump sum payable as soon as administratively practical following the Participant's termination from employment for any reason. (ii) 50/50 LUMP SUM ON TERMINATION. A lump sum of an amount equal to 50% of the balance of the Participant's Distribution Amount payable as soon as administratively practical following the Participant's termination of employment for any reason, with the remaining balance of the Participant's Distribution Amount distributed in a lump sum payable as soon as administratively practical after the January 1 which follows the calendar year during which the initial 50% of the Participant's Distribution Amount was distributed. Until the final distribution is made, earnings and Dividend Equivalents shall continue to be credited to the undistributed balances in the Participant's Accounts. (iii) SINGLE LUMP SUM - DATE CERTAIN. A lump sum payable on or as soon as administratively practical following some specified date (which is the last day of a month and which is at least two years after the date of the Participant's deferral election). If a Participant's employment terminates for any reason prior to such specified date, the Distribution Amount shall be paid as a Single Lump Sum on Termination in accordance with Section 6.1(a)(i). 18 (iv) 50/50 LUMP SUM - DATE CERTAIN. A lump sum of an amount equal to 50% of the balance of the Participant's Distribution Amount payable on or as soon as administratively practical following some specified date (which is the last day of a month and which is at least two years after the date of the Participant's deferral election), with the remaining balance distributed in a lump sum payable in January of the year which follows the calendar year during which the initial 50% of the Participant's Distribution Amount was distributed. Until the final distribution is made, earnings and Dividend Equivalents shall continue to be credited to the undistributed balances in the Participant's Accounts. If a Participant terminates employment prior to such specified date, the Distribution Amount shall be paid as a Single Lump Sum on Termination in accordance with Section 6.1(a)(i). (v) INSTALLMENTS. Subject to the requirements described in this SECTION 6.1(A)(V), substantially equal annual installments over five (5) to fifteen (15) years commencing upon or as soon as administratively practical following the Participant's Retirement. The amount of the first annual payment shall be determined by dividing the Distribution Amount by the appropriate number of years in the installment period. Each subsequent payment is determined by dividing the remaining balance by the remaining number of years in the installment period. Each subsequent annual installment shall be payable during each January which follows the Participant's Retirement and which occurs during the installment period. Until the Valuation Date for the final distribution, earnings and Dividend Equivalents shall continue to be credited to the undistributed balances in the Participant's Accounts in the manner described in Sections 4.1(c), 4.2(f) and 6.1(b). Notwithstanding anything else contained herein to the contrary, the distribution option described in this Section 6.1(a)(v) shall only be available to a Participant if the total value of his or her vested Distribution Amounts which are to be distributed pursuant to this Section 6.1(a)(v) is at least $100,000 as of the date of his or her Retirement. In the event that a Participant has elected an installment form of distribution and the value of his or her vested Distribution Amounts which are to be distributed in the form of installments is less than $100,000 as of his or her Retirement date, or the Participant is not eligible for Retirement, the Distribution Amount shall be paid as a 50/50 Lump Sum on Termination in accordance with Section 6.1(a)(ii). 19 (b) MANNER OF DISTRIBUTION. The amount to be paid to the Participant shall be the vested portion of the Participant's Accounts. (i) Amounts not denominated as Stock Units as of the date of distribution shall be paid in cash and valued as of the date the amount of the distribution is determined. (ii) If, as of the date of distribution, benefits continue to be denominated as Stock Units, then the benefit attributable to the Stock Units credited to a Participant's Accounts shall be distributed in shares of Common Stock. The Fair Market Value of any fractional Stock Units shall be distributed in cash; such Fair Market value shall be determined as of the date used by the trustee of the Trust to determine the taxable income reportable with respect to the shares of Common Stock distributed. (c) DISTRIBUTION ELECTIONS. For deferrals prior to January 1, 2003, Participants made separate distribution elections for the portion of their Accounts attributable to each year of participation under the Plan ("Pre-2003 Class-Year Election"), and distributions prior to January 1, 2003 were made according to the Pre-2003 Class-Year Elections. Effective for distributions after January 1, 2003, distribution of a Participant's Distribution Amount under this Section 6.1 shall be made as follows: (i) Class-year elections remain valid with respect to the Single Lump Sum-Date Certain option set forth in Section 6.1(a)(iii) and the 50/50 Lump Sum-Date Certain option set forth in Section 6.1(a)(iv). Thus, Pre-2003 Class Year Elections specifying these forms of benefit will continue to be honored. After 2002, Participants may continue to elect these forms of benefit on a class-year basis, and elections concerning these forms of benefit may be changed as specified in clause (iii) of this subsection (c). 20 (ii) No form of distribution other than those specified in clause (i) of this subsection (c) may be elected on a class-year basis and any other class-year election shall be disregarded. Thus, Pre-2003 Class Year Elections are not valid after January 1, 2003 with respect to the Single Lump Sum on Termination option set forth in Section 6.1(a)(i), the 50/50 Lump Sum on Termination option set forth in Section 6.1(a)(ii), and the Installments option set forth in Section 6.1(a)(v). The portion of the Participant's Accounts not subject to class-year elections that are valid under clause (i) of this subsection (c) shall be distributed according to the Participant's "Global Election," as follows: (1) The first distribution election form received by the Committee for a Participant with respect to the 2003 Plan Year (or if later, the first Plan Year the Participant is a Participant) shall be the Participant's initial Global Election. (2) A Participant may change his or her Global Election as set forth in clause (iii) of this subsection (c). (iii) Participants shall be allowed to change their distribution elections by filing a new distribution election form as follows: (1) A Global Election may be replaced with a new Global Election if the new Global Election is made at least one year prior to the earlier of (x) the date benefit payments would otherwise have commenced under the Participant's immediately preceding valid Global Election, or (y) the date benefit payments would commence under the new Global Election. Furthermore, if the new Global Election changes the date of distribution under the Single Lump Sum-Date Certain option set forth in Section 6.1(a)(iii) or the 50/50 Lump Sum-Date Certain option set forth in Section 6.1(a)(iv), the new date of distribution must be at least two years from the date of the original election of such option(s). Subject to the foregoing rules concerning the validity of a new Global Election, a Participant may make a Global Election applicable to amounts that had been subject to a class-year election, but if an amount is ever subject to a Global Election, the Participant may not subsequently make such amount subject to a class-year election. 21 (2) A Participant may replace an existing class-year election with respect to the Single Lump Sum-Date Certain option set forth in Section 6.1(a)(iii) or the 50/50 Lump Sum-Date Certain option set forth in Section 6.1(a)(iv) with a new class-year distribution election with respect to such options if the new class-year election is made at least one year prior to the earlier of (x) the date benefit payments would otherwise have commenced under the Participant's immediately preceding valid class-year election with respect to such distribution, or (y) the date benefit payments would commence under the new class-year election. Furthermore, the new date of distribution must be at least two years from the date of the original election of such option(s). Subject to the rules set forth in paragraph (1) of this clause (iii) concerning the validity of a new Global Election, a Participant may make a Global Election applicable to amounts that had been subject to a class-year election, but if an amount has ever been subject to a Global Election, the Participant may not subsequently make such amount subject to a class-year election. (3) Distribution election forms that are not valid under paragraphs (1) and (2) of this clause (iii) shall be void and shall be disregarded. 22 6.2 INABILITY TO LOCATE PARTICIPANT. In the event that the Committee is unable to locate a Participant or Beneficiary within two years following the date the Participant was to commence receiving payment or delivery pursuant to Section 6.1, the entire amount allocated to the Participant's Accounts shall be forfeited. If, after such forfeiture, the Participant or Beneficiary later claims such benefit, such benefit shall be reinstated without interest, earnings or further crediting of Dividend Equivalents, from the date of the forfeiture. The distribution of such benefits shall thereafter be made in the manner determined by the Committee. 6.3 EARLY AND HARDSHIP DISTRIBUTIONS. Notwithstanding anything in this Article VI, the Plan shall permit an in-service early or hardship distribution as follows: (a) EARLY DISTRIBUTION. At any time, a Participant, at his or her sole discretion, may withdraw up to 100% of the vested balance of his or her Accounts subject to a 10% penalty of the amount withdrawn. The 10% penalty shall be permanently and irrevocably forfeited. The Company shall thereafter have no obligation to pay the forfeited amount. (b) HARDSHIP DISTRIBUTION. A Participant may receive a hardship distribution, from the vested portion of his or her Accounts, subject to the approval of the Committee, if the Participant has a financial hardship. A financial hardship exists if the Participant demonstrates to the satisfaction of the Committee that he or she has suffered (i) a severe financial hardship which is unforeseeable or (ii) a financial hardship as defined in the 401(k) Plan, and that he or she does not have other assets (excluding those assets which might be available from the 401(k) Plan, Beckman Coulter, Inc. Employees' Stock Purchase Plan and Beckman Coulter, Inc. Executive Restoration Plan) sufficient to satisfy the financial need created by the hardship. The determination of whether a Participant has suffered a hardship shall be made by the Committee in its sole discretion. A hardship distribution, if made, shall be in an amount no greater than the amount needed to satisfy the hardship (including amounts required to satisfy applicable Federal and state income tax withholding), as determined by the Committee. 23 (c) WITHDRAWAL ELECTION FORM. For distributions under this Section 6.3, the Participant shall designate on a withdrawal form provided by the Company the Accounts, the Plan Year of the contribution, and the contribution source (e.g., Participant, Company or both) from which the distribution is to be made. Such distribution will be made as soon as administratively practical following the Participant's submission of a completed withdrawal form. Distributions under this Section 6.3 do not result in suspension from participation in the Plan. (i) The portion of the withdrawal not denominated as Stock Units as of the date of distribution shall be paid in cash and valued as of the date the amount of the distribution is determined. (ii) If, as of the date of distribution, benefits continue to be denominated as Stock Units, then the portion of the withdrawal attributable to the Stock Units credited to a Participant's Accounts shall be distributed in shares of Common Stock. The Fair Market Value of any fractional Stock Units shall be distributed in cash; such Fair Market value shall be determined as of the date used by the trustee of the Trust to determine the taxable income reportable with respect to the shares of Common Stock distributed. 6.4 DISTRIBUTIONS ON DEATH. In the event of the death of a Participant prior to the commencement of payment of benefits hereunder, the Participant's Accounts shall be paid to the Participant's Beneficiary as a Single Lump Sum on Termination in accordance with Section 6.1 (a)(i) as soon as administratively practical following the date of death. Furthermore, in the event of the death of a Participant who has commenced to receive a distribution of benefits in the form of annual installments under Section 6.1(a)(v), the remaining vested balances in his or her Accounts shall be paid to the Participant's Beneficiary in the form of a lump sum as soon as administratively practical following the date of death. 24 6.5 CHANGE OF TRUST STATUS Notwithstanding anything contained in this Plan to the contrary, if at any time the Trust is finally determined by the Internal Revenue Service ("IRS") not to be a "grantor trust" with the result that the income of the Trust is not treated as income of the Company pursuant to Sections 671 through 679 of the Code, or if a tax is finally determined by the IRS to be payable by one or more Participants or Beneficiaries with respect to any interest in the Plans or the Trust prior to payment of such interest to any such Participant or Beneficiary, the Committee shall immediately determine each Participant's share of the Trust in accordance with this Plan and such other Plans with respect to which assets are held in the Trust (together with this Plan, the "Nonqualified Plans"), and the Trustee shall immediately distribute such share in a lump sum to each Participant or Beneficiary entitled thereto, regardless of whether such Participant's employment has terminated and regardless of form and time of payments specified in or pursuant to the Plan in such amounts and in the manner instructed by the Committee. If the value of the Trust is less than the benefit obligations under the Nonqualified Plans, the foregoing described distributions will be limited to a Participant's share of the Trust, determined by allocating assets to the Participant based on the ratio of the Participant's benefit obligations under the Nonqualified Plans to the total benefit obligations under the Nonqualified Plans. ARTICLE VII CLAIMS PROCEDURE AND ARBITRATION ================================ 7.1 CLAIMS PROCEDURE AND ARBITRATION. (a) The Committee (or, upon and after a Change in Control Event, the Administrator) shall establish a reasonable claims procedure consistent with the requirements of ERISA. In the event of a claim for payment under this Plan or any dispute regarding the interpretation of this Plan, the Participant, or following the Participant's death, his or her Beneficiary (collectively referred to in this section as "Claimant") shall be required to submit such matter for review in accordance with the claims procedure established by the Committee (or Administrator). 25 (b) If a Claimant has exhausted the claims procedure referred to in subsection (a) and he or she is dissatisfied with the outcome, the Claimant may, if he or she desires, submit any claim for payment under this Plan or any dispute regarding the interpretation of this Plan to arbitration. This right to select arbitration shall be solely that of the Claimant, and the Claimant may decide whether or not to arbitrate in his or her discretion. The "right to select arbitration" does not impose on the Claimant a requirement to submit a dispute for arbitration. The Claimant may, in lieu of arbitration, bring an action in appropriate civil court. The Claimant retains the right to select arbitration, even if a civil action (including, without limitation, an action for declaratory relief) is brought by the Company or any other fiduciary of this Plan prior to the commencement of arbitration. If arbitration is selected by the Claimant after a civil action concerning the Claimant's dispute has been brought by a person other than the Claimant, the Company, and the Claimant shall take such actions as are necessary or appropriate, including dismissal of the civil action, so that the arbitration can be timely heard. Once arbitration is commenced, it may not be discontinued without the unanimous consent of all parties to the arbitration. During the lifetime of the Participant only he or she can use the arbitration procedure set forth in this section. (c) Any claim for arbitration may be submitted as follows: if the Claimant disagrees with an interpretation of this Plan by the Company or any fiduciary of this Plan, or disagrees with the calculation of his or her benefit under this Plan, such claim may be filed in writing with an arbitrator of the Claimant's choice who is selected by the method described in the next four sentences. The first step of the selection shall consist of the Claimant submitting in writing a list of five potential arbitrators to the Company. Each of the five arbitrators must be either (i) a member of the National Academy of Arbitrators located in the state of California or (ii) a retired California Superior Court or Appellate Court judge. Within one week after receipt of the list, the Company shall select one of the five arbitrators as the arbitrator of the dispute in question. If the Company fails to select an arbitrator in a timely manner, the Claimant then shall designate one of the five arbitrators as the arbitrator of the dispute in question. 26 (d) The arbitration hearing shall be held within seven days (or as soon thereafter as possible) after the selection of the arbitrator. No continuance of said hearing shall be allowed without the mutual consent of the Claimant and the Company. Absence from or non-participation at the hearing by any party shall not prevent the issuance of an award. Hearing procedures that will expedite the hearing may be ordered at the arbitrator's discretion, and the arbitrator may close the hearing in his sole discretion when he or she decides he or she has heard sufficient evidence to justify issuance of an award. The arbitrator shall apply the same procedure referred to in Section 7.1(a) as would be applied by a court of proper jurisdiction. Accordingly, prior to a Change in Control Event, the arbitrator shall not apply a de novo standard of review in reviewing the decision rendered through the claims procedure but rather shall apply an arbitrary and capricious standard of review, and upon and after a Change in Control Event, the arbitrator shall apply a de novo standard of review. (e) The arbitrator's award shall be rendered as expeditiously as possible and in no event later than one week after the close of the hearing. In the event the arbitrator finds that the Claimant is entitled to the benefits he or she claimed, the arbitrator shall order the Company to pay or deliver such benefits (which may be paid from the Trust), in the amounts and at such time as the arbitrator determines. The award of the arbitrator shall be final and binding on the parties. The Company shall thereupon pay or deliver (or the trustee of the Trust shall pay or deliver) to the Claimant immediately the amount that the arbitrator orders to be paid or delivered in the manner described in the award. The award may be enforced in any appropriate court as soon as possible after its rendition. If any action is brought to confirm the award, no appeal shall be taken by any party from any decision rendered in such action. (f) This subsection (f) shall apply only after the occurrence of a Change in Control Event. If the arbitrator determines that the Claimant is entitled to the claimed benefits, the arbitrator shall direct the Company to pay to the Claimant, and the Company shall pay to the Claimant in accordance with such order, an amount equal to the Claimant's expenses in pursuing the claim, including attorneys' fees. Such payment shall not be made from the Trust. 27 ARTICLE VIII ADMINISTRATION ============== 8.1 COMMITTEE. (a) The Committee shall be appointed by, and serve at the pleasure of, the Board of Directors. The number of members comprising the Committee shall be determined by the Board which may from time to time vary the number of members. A member of the Committee may resign by delivering a written notice of resignation to the Board. The Board may remove any member by delivering a certified copy of its resolution of removal to such member. Vacancies in the membership of the Committee shall be filled promptly by the Board. (b) Upon and after a Change in Control Event, the Committee shall cease to have authority concerning the administration of this Plan and such authority shall be assumed by the Administrator. 8.2 COMMITTEE ACTION. The Committee shall act at meetings by affirmative vote of a majority of the members of the Committee. Any action permitted to be taken at a meeting may be taken without a meeting if, prior to such action, a written consent to the action is signed by all members of the Committee and such written consent is filed with the minutes of the proceedings of the Committee. A member of the Committee shall not vote or act upon any matter which relates solely to himself or herself as a Participant. The chairman of the Committee (the "Chairman") or any other member or members of the Committee designated by the Chairman may execute any certificate or other written direction on behalf of the Committee. 8.3 POWERS AND DUTIES OF THE COMMITTEE OR ADMINISTRATOR. Subject to Section 8.4, the Committee or Administrator (as applicable), on behalf of the Participants and their Beneficiaries, shall enforce this Plan in accordance with its terms, shall be charged with the general administration of this Plan, and shall have all powers necessary to accomplish its purposes, including, but not by way of limitation, the following: 28 (a) Prior to a Change in Control Event, to construe and interpret the terms and provisions of the Plan, provided that upon and after a Change in Control Event, the Administrator's interpretation or construction (and any previous interpretation or construction of the Committee) shall be reviewed on a de novo basis. (b) To compute and certify to the amount and kind of benefits payable or deliverable to Participants and their Beneficiaries; (c) To maintain all records that may be necessary for the administration of this Plan; (d) To provide for the disclosure of all information and the filing or provision of all reports and statements to Participants, Beneficiaries or governmental agencies as shall be required by law; (e) To make and publish such rules for the regulation of this Plan and procedures for the administration of this Plan as are not inconsistent with the terms hereof; and (f) To appoint a plan administrator or any other agent, and to delegate to them such powers and duties in connection with the administration of this Plan as the Committee may from time to time prescribe. (g) To direct the Trustee concerning the performance of various duties and responsibilities under the trust including exercising all voting rights connected with the stock, including voting rights 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 of Directors. 29 8.4 INTERPRETATION OF PLAN. Prior to the occurrence of a Change in Control Event, the Committee shall have full discretion to construe and interpret the terms and provisions of this Plan, which interpretation or construction shall be final and binding on all parties, including but not limited to the Company and any Participant or Beneficiary. The Committee shall administer such terms and provisions in a uniform and nondiscriminatory manner and in full accordance with any and all laws applicable to this Plan. Notwithstanding the foregoing, following the occurrence of a Change in Control Event, the Administrator, rather than the Committee, shall construe and interpret the Plan, no deference shall be given to the Administrator's construction or interpretation (or the Committee's prior interpretation or construction) of the Plan and any such construction or interpretation shall be reviewed under a de novo standard of review. In making any determination or in taking or not taking any action under this Plan, the Committee, the Administrator or the Board, as the case may be, may obtain and may rely upon the advice of experts, including professional advisors to the Company. No director, officer or agent of the Company shall be liable for any such action or determination taken or made or omitted in good faith. 8.5 PLAN CONSTRUCTION. It is the intent of the Company that transactions in and affecting securities issued hereunder in the case of Participants who are or may be subject to Section 16 of the Exchange Act satisfy any then applicable requirements of Rule 16b-3 so that such persons (unless they otherwise agree) will be entitled to the benefits of Rule 16b-3 or other exemptive rules under Section 16 of the Exchange Act in respect of those transactions and will not be subjected to avoidable liability thereunder. If any provision of this Plan would otherwise frustrate or conflict with the intent expressed above, that provision to the extent possible shall be interpreted as to avoid such conflict. 30 8.6 INFORMATION. To enable the Committee or Administrator to perform its functions, the Company shall, upon request of the Committee or Administrator, supply full and timely information to the Committee or Administrator on all matters relating to the Salary and/or Bonus of all Participants, their death, or other cause of termination, and such other pertinent facts as the Committee or Administrator may require. 8.7 COMPENSATION, EXPENSES AND INDEMNITY. (a) The Committee or Administrator is authorized at the expense of the Company to employ such legal counsel and administrative services as it may deem advisable to assist in the performance of its duties hereunder. Expenses and fees in connection with the administration of this Plan shall be paid by the Company. (b) To the extent permitted by applicable state law, the Company shall indemnify and save harmless the Committee and each member thereof, the Administrator, the Board of Directors and any delegate of the Committee or Administrator who is an employee of the Company against any and all expenses, liabilities and claims, including legal fees to defend against such liabilities and claims arising out of their discharge in good faith of responsibilities under or incident to this Plan, other than expenses and liabilities arising out of willful misconduct. This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Company or provided by the Company under any bylaw, agreement or otherwise, as such indemnities are permitted under state law. (c) When the Committee becomes aware that a Change in Control Event is expected to occur, and prior to such Change in Control Event, an amount estimated by the Committee equal to the costs of administrating the Plan for two years after the Change in Control Event shall be irrevocably deposited by the Company in the Trust. Such amount may be used to pay the expenses of administering the Plan, and if such amount is exhausted, the Company shall resume payment of the expenses. 31 ARTICLE IX MISCELLANEOUS ============= 9.1 UNSECURED GENERAL CREDITOR. Participants and their Beneficiaries, heirs, successors, and assigns shall have no legal or equitable rights, claims, or interest in any specific property or assets of the Company. No assets of the Company shall be held under any trust (other than a grantor trust within the meaning of Section 671, et. seq. of the Code), or held in any way as collateral security for the fulfilling of the obligations of the Company under this Plan. Any and all of the Company's assets shall be, and remain, the general unpledged, unrestricted assets of the Company. The Company's obligation under this Plan shall be merely that of an unfunded and unsecured promise of the Company to pay money in the future, and the rights of the Participants and Beneficiaries shall be no greater than those of unsecured general creditors. 9.2 NO EMPLOYMENT CONTRACT. Nothing contained in this Plan (or in any other documents related to this Plan) shall confer upon any Eligible Employee or other Participant any right to continue in the employ or other service of the Company or constitute any contract or agreement of employment or other service, nor shall interfere in any way with the right of the Company to change such person's compensation or other benefits or to terminate the employment of such person, with or without cause. 9.3 ADJUSTMENTS IN CASE OF CHANGES IN COMMON STOCK. If any stock dividend, stock split, recapitalization, merger, consolidation, combination or other reorganization, exchange of shares, sale of all or substantially all of the assets of the Company, split-up, split-off, spin-off, extraordinary redemption, liquidation or similar change in capitalization or any distribution to holders of the Common Stock (other than cash dividends and cash distributions) shall occur, proportionate and equitable adjustments consistent with the effect of such event on stockholders generally (but without duplication of benefits if Dividend Equivalents are credited) shall be made in respect of Units and Accounts credited under this Plan so as to preserve the benefits intended. To the extent the consideration paid to holders of Common Stock is readily tradable common stock of another company, then the common stock of such other company shall be considered Common Stock hereunder. To the extent the consideration paid to holders of Common Stock is other than readily tradable common stock of another company, then the fair market value of such consideration shall be credited to the Participants' respective Accounts, and shall thereafter be credited with earnings and shall be distributed according to the provisions of this Plan. 32 9.4 RESTRICTION AGAINST ASSIGNMENT. The Company shall pay all amounts payable hereunder only to the person or persons designated by this Plan and not to any other person or corporation. No part of a Participant's Accounts shall be liable for the debts, contracts, or engagements of any Participant, his or her Beneficiary, or successors in interest, nor shall a Participant's Accounts be subject to execution by levy, attachment, or garnishment or by any other legal or equitable proceeding, nor shall any such person have any right to alienate, anticipate, commute, pledge, encumber, or assign any benefits or payments hereunder in any manner whatsoever. If any Participant, Beneficiary or successor in interest is adjudicated bankrupt or purports to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge any distribution or payment from this Plan, voluntarily or involuntarily, the Committee, in its discretion, may cancel such distribution or payment (or any part thereof) to or for the benefit of such Participant, Beneficiary or successor in interest in such manner as the Committee shall direct. 9.5 WITHHOLDING. The Company shall satisfy any state or federal income or other tax withholding obligation arising upon distribution of a Participant's Accounts. The Participant shall pay or provide for payment in cash of the amount of any taxes which the Company may be required to withhold with respect to the benefits hereunder, and shares of Common Stock held for the benefit of the Participant in the Trust may be sold to raise cash to satisfy any withholding requirement. 9.6 AMENDMENT, MODIFICATION, SUSPENSION OR TERMINATION. The Company may amend, modify, suspend or terminate this Plan in whole or in part and the Committee may amend or modify this Plan in whole or in part, except that (i) no amendment, modification, suspension or termination shall have any retroactive effect to reduce any amounts allocated to Participants' Accounts, (ii) Sections 4.1(c) and 4.2(d) may not be amended, modified or suspended so as to, with respect to any amounts credited to the Accounts as of the date of such amendment, reduce the amount of earnings or Dividend Equivalents to be credited to Participants' Accounts in accordance with Sections 4.1 (c) and 4.2(d), respectively, and (iii) Section 7.1 may not be amended with respect to any Participant or Beneficiary following the date the Participant or Beneficiary makes a claim for benefits under this Plan. In the event that this Plan is terminated, the amounts credited to a Participant's Accounts shall be distributed to the Participant or, in the event of his or her death, his or her Beneficiary in a lump sum within ninety (90) days following the date of Plan termination. 33 9.7 GOVERNING LAW. Except to the extent preempted by ERISA or other applicable federal law, this Plan shall be construed, governed and administered in accordance with the laws of the State of California. 9.8 RECEIPT OR RELEASE. Any payment to a Participant or the Participant's Beneficiary in accordance with the provisions of this Plan shall, to the extent thereof, be in full satisfaction of all claims against the Committee and the Company. The Committee may require such Participant or Beneficiary, as a condition precedent to such payment or delivery, to execute a receipt and release to such effect. 9.9 PAYMENTS ON BEHALF OF PERSONS UNDER INCAPACITY. In the event that any amount becomes payable to a person who, in the sole judgment of the Committee, is considered by reason of physical or mental condition to be unable to give a valid receipt therefore, the Committee may direct that such payment be made to any person found by the Committee, in its sole judgment, to have assumed the care of such person. Any payment or delivery made pursuant to such determination shall constitute a full release and discharge of the Committee and the Company. 9.10 HEADINGS, ETC. NOT PART OF AGREEMENT. Headings and subheadings in this Plan are inserted for convenience of reference only and are not to be considered in the construction of the provisions hereof. 34 This restated Plan is hereby adopted by Beckman Coulter, Inc. effective May 1, 2002. BECKMAN COULTER, INC. By: /S/ FIDENCIO M. MARES --------------------------------------- Fidencio M. Mares Its: VICE PRESIDENT, HUMAN RESOURCES -------------------------------------- 35 EX-4 7 ex42_execrestorplan.txt EXHIBIT 4.2 EXECUTIVE RESTORATION PLAN BECKMAN COULTER, INC. ==================== EXECUTIVE RESTORATION PLAN ========================== (AMENDED AND RESTATED EFFECTIVE AS OF MAY 1, 2002) ================================================== BECKMAN COULTER, INC EXECUTIVE RESTORATION PLAN (AMENDED AND RESTATED EFFECTIVE AS OF MAY 1, 2002) WHEREAS, Beckman Coulter, Inc. (the "Company") maintains a tax-qualified profit-sharing plan which includes a pre-tax 401(k) plan feature ("401(k) Plan"); and WHEREAS, under the 401(k) Plan certain highly compensated employees are prevented by the tax laws from making the full amount of contribution they desire to make; and WHEREAS, the Company originally established a deferred compensation plan (the "Restoration Plan") to permit eligible employees to defer amounts they cannot now defer under the 401(k) Plan; and WHEREAS, the Company has the right to amend the Plan, and the Company now wishes to amend and restate the Plan to (i) provide that distributions of benefits valued by reference to Company Common Stock be distributed in the form of stock instead of cash; (ii) add provisions consistent with the establishment of a grantor trust for the purpose of satisfying some or all of the Company's obligations under this plan; and (iii) make certain other miscellaneous changes. NOW, THEREFORE, the Restoration Plan is amended and restated effective as of May 1, 2002; provided, however, that the officers of the Company shall implement the provisions regarding stock distributions as soon thereafter as reasonably feasible, and the officers may phase in the provisions regarding stock distributions over a period of time if the officers determine that such a phase-in would be in the interests of the Company. 1 ARTICLE I TITLE AND DEFINITIONS ===================== 1.1 TITLE. ----- This Plan shall be known as the "Beckman Coulter, Inc. Executive Restoration Plan." 1.2 DEFINITIONS. ----------- Whenever the following words and phrases are used in this Plan, with the first letter capitalized, they shall have the meanings specified below. "Account" or "Accounts" shall mean a Participant's Restoration Deferral Account, Restoration Matching Account and/or, if applicable, Retirement Plus Account. The Committee may establish such additional accounts or subaccounts as it deems necessary for the proper administration of the Plan. "Administrator" shall mean the person selected as provided in the Trust Agreement to administer the Plan upon and after a Change in Control Event. "Beneficiary" or "Beneficiaries" shall mean the person or persons, including a trustee, personal representative or other fiduciary, who have been designated as or who are deemed to be the Participant's "Beneficiary" or "Beneficiaries" under the 401(k) Plan and who shall receive the benefits specified hereunder in the event of the Participant's death. Notwithstanding the above, a Participant may designate or change such designation of his or her Beneficiary or Beneficiaries for purposes of this Plan by filing, on a form provided by the Committee and on such terms and conditions as the Committee may prescribe, a Beneficiary designation. No such Beneficiary designation shall become effective until it is filed with the Committee. Such Beneficiary designation shall thereafter remain in effect with respect to this Plan until a 2 new Beneficiary designation is filed with the Committee pursuant to the terms hereof. In the event any amount is payable under this Plan to a minor, payment shall not be made to the minor, but instead shall be paid (i) to that person's living parent(s) to act as custodian, (ii) if that person's parents are then divorced, and one parent is the sole custodial parent, to such custodial parent, or (iii) if no parent of that person is then living, to a custodian selected by the Committee to hold the funds for the minor under the Uniform Transfers of Gifts to Minors Act in effect in the jurisdiction in which the minor resides. If no parent is living and the Committee decides not to select another custodian to hold the funds for the minor, then payment shall be made to the duly appointed and currently acting guardian of the estate for the minor or, if no guardian of the estate for the minor is duly appointed and currently acting within 60 days after the date the amount becomes payable, payment shall be deposited or made with the court having jurisdiction over the estate of the minor. "Board of Directors" or "Board" shall mean the Board of Directors of Beckman Coulter, Inc. "Bonus" shall mean any annual incentive compensation payable to a Participant in accordance with the Executive or Management Incentive Plans (or their successors) that is in addition to the Participant's Salary. "Change in Control Event" shall mean the following for purposes of this Plan and shall be deemed to occur if any of the following events occur: (i) any "person," as such term is used in Sections 13(d) and 14(d) of the Exchange Act, other than an employee benefit plan of Beckman Coulter, Inc. ("Beckman Coulter"), or a trustee or other fiduciary holding securities under an employee benefit plan of Beckman Coulter, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Beckman Coulter representing 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities, provided that, no Change in Control Event shall be deemed to occur solely because a corporation (the "seller") owns 15% or more of Beckman Coulter voting securities if such ownership is only a transitory step in a reorganization whereby Beckman Coulter purchases the assets of the seller for Beckman Coulter voting securities and the seller liquidates shortly thereafter; 3 (ii) individuals who, as of the date hereof, constitute the Board of Beckman Coulter (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by Beckman Coulter's stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of Beckman Coulter, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall be considered as though such person were a member of the Incumbent Board of Beckman Coulter; (iii) the stockholders of Beckman Coulter approve a merger or consolidation with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of Beckman Coulter outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of another entity) more than 85% of the combined voting power of the voting securities of Beckman Coulter or such other entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of Beckman Coulter (or similar transaction) in which no person acquires 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities; or (iv) the stockholders of Beckman Coulter approve a plan of complete liquidation of Beckman Coulter or an agreement for the sale or disposition by Beckman Coulter of all or substantially all of Beckman Coulter's assets. 4 Notwithstanding the preceding sentence, a Change in Control Event shall not be deemed to have occurred if the "person" described in the preceding sentence is an underwriting syndicate which has acquired the ownership of 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities solely in connection with a public offering of Beckman Coulter's securities. If, after any of the events deemed to constitute a Change in Control Event occurs, the transaction approved by the stockholders does not actually transpire, the Change in Control Event will be retroactively deemed not to have occurred. "Code" shall mean the Internal Revenue Code of 1986, as amended. "Committee" shall mean the Organization and Compensation Committee of the Board or its delegate(s) which administers this Plan in accordance with Article VIII. "Common Stock" shall mean the Common Stock of the Company (or such other publicly traded common stock with respect to which Stock Units are designated following a corporate transaction as set forth in Section 9.3). "Company" shall mean Beckman Coulter, Inc., any successor corporation and each corporation which is a member of a controlled group of corporations (within the meaning of Section 414(b) of the Code) of which Beckman Coulter, Inc. is a component member. Upon and after a Change in Control Event, Company shall include any successor to Beckman Coulter, Inc. or a substantial portion of its assets. "Dividend Equivalent" shall mean the amount of cash dividends or other cash distributions paid by the Company on that number of shares of Common Stock which is equal to the number of Stock Units then credited to a Participant's Restoration Matching Account and, if applicable, a Participant's Retirement Plus Account, which amount shall be allocated as additional Stock Units to such Participant's Restoration Matching Account, as provided in Section 4.2(b) and, if applicable, to such Participant's Retirement Plus Account, as provided in Section 4.3. 5 "Eligible Employee" shall mean an officer or other highly compensated employee of the Company who has been selected by the Committee to participate in this Plan. The Committee shall limit Eligible Employee status to a select group of management or highly compensated employees, as set forth in Sections 201, 301 and 401 of ERISA. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. "Fair Market Value" shall mean: (1) If the Common Stock is being valued in connection with a transaction (such as the crediting of amounts to an Account or a distribution) for which the Committee determines there is a corresponding transaction by the Trust, the net price per share of Common Stock purchased or the net proceeds per share of Common Stock sold in the transaction by the Trust, in each case including all expenses of such transaction by the Trust. (2) If paragraph (1) does not apply, (a) the closing price of the Common Stock on the New York Stock Exchange on the date for which the fair market value is determined, or, if there is no trading of the Common Stock on such date, then the closing price of the Common Stock on the New York Stock Exchange on the next preceding date on which there was trading in such shares; or (b) if the Common Stock is not listed, admitted or quoted, the Committee may designate such other source of data as it deems appropriate for determining such value for purposes of this Plan. "401(k) Plan" means the Beckman Coulter, Inc. Savings Plan as it may be amended from time to time. 6 "Interest Rate" shall mean, for each Plan Year, the prime rate of interest established by Bank of America, NT&SA in effect as of the July 31 preceding the relevant Plan Year. "Participant" shall mean any Eligible Employee who elects to defer a portion of his or her Salary and Bonus in accordance with Section 3.1 and who satisfies the participation requirements of Article II. "Plan" shall mean the Beckman Coulter, Inc. Executive Restoration Plan set forth herein, now in effect, or as amended from time to time. This Plan constitutes an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, as set forth in Sections 201, 301 and 401 of ERISA. "Plan Year" shall mean each 12 consecutive month period beginning on January 1. "Restoration Deferral Account" shall mean the bookkeeping account maintained by the Company on behalf of a Participant who elects to defer his or her Salary and Bonus in cash under this Plan pursuant to Section 3.1. "Restoration Matching Account" shall mean the bookkeeping account maintained by the Company on behalf of each Participant pursuant to Section 4.2 to reflect the Participant's interest in the Plan attributable to the Company's matching credits. 7 "Retirement Plus Account" shall mean the bookkeeping account maintained by the Company pursuant to Section 4.3 on behalf of each Participant who is eligible for contributions to the 401(k) Plan under the Retirement Plus provisions of the 401(k) Plan. "Salary" shall mean the Participant's "Plan Compensation" (as such term is defined in the 401(k) Plan, but without regard to the limit under Section 401(a)(17) of the Code) prior to any deferrals under this Plan or any other deferred compensation plan of the Company, except for any Bonus. "Stock Unit" or "Unit" shall mean a non-voting unit of measurement which is deemed for bookkeeping purposes to be equivalent to one outstanding share of Common Stock of the Company solely for purposes of this Plan. The Units credited to a Participant's Restoration Matching Account or Retirement Plus Account shall be used solely as a device for the determination of the value of the Participant's Restoration Matching Account or Retirement Plus Account, as the case may be, to be eventually distributed in Common Stock held by the Trust to such Participant in accordance with this Plan. The value of a Unit will vary on any given date due to the fluctuations in price of Common Stock. The Units shall not be treated as property or as a trust fund of any kind. No Participant shall be entitled to any voting or other stockholder rights with respect to Units granted or credited under this Plan. The number of Units credited shall be subject to adjustment in accordance with Section 9.3. "Trust" shall mean a grantor trust established and funded by the Company for the purpose of satisfying some or all of the Company's obligations under the Plan. "Trust Agreement" shall mean the agreement by and between the Company and the Trustee establishing the Trust. 8 ARTICLE II PARTICIPATION ============= 2.1 PARTICIPATION. ------------- Participation in the Plan is voluntary. An Eligible Employee shall become a Participant in this Plan by electing to defer a portion of his or her Salary and Bonus in accordance with Article III. Notwithstanding anything else contained herein to the contrary, an Eligible Employee shall be permitted to defer a portion of his or her Salary and Bonus and to receive Company matching credits and, if applicable, credits to a Retirement Plus Account under this Plan during a particular Plan Year only after the Eligible Employee is prohibited from making any additional elective deferrals to the 401(k) Plan during such Plan Year because the elective deferrals (i) would exceed the amount specified in Section 402(g) of the Code, (ii) would cause the 401(k) Plan to fail to satisfy the limitation of Code Section 401(k)(3), or would increase the margin by which the 401(k) Plan fails to satisfy the limitation of Code Section 401(k)(3), or (iii) would otherwise exceed the maximum elective deferrals permitted under the terms of the 401(k) Plan. Effective for Plan Years commencing on or after January 1, 2000, a credit to the Retirement Plus Account shall be made to any Eligible Employee described below, regardless of whether the Eligible Employee elected to defer a portion of his or her Salary and Bonus. An Eligible Employee shall receive such credit if and only if the Eligible Employee (1) is a participant in the Retirement Plus provisions of the 401(k) Plan, and (2) the contributions made to the Retirement Plus provisions of the 401(k) Plan for such Eligible Employee are limited on account of Section 401(a)(17) of the Code. If an eligible Employee described in the preceding sentence had not already become a Participant, then the Eligible Employee shall become a Participant upon the crediting of an amount to his or her Retirement Plus Account. Effective January 1, 2002, an Eligible Employee who is eligible to make catch-up contributions (as described in Code Section 414(v)) under the 401(k) Plan shall commence the deferrals under this Plan only if the Eligible Employee satisfies the requirements of the preceding sentence and has made all such catch-up contributions. 9 ARTICLE III DEFERRAL ELECTIONS ================== 3.1 ELECTIONS TO DEFER SALARY AND BONUS. ----------------------------------- (a) DEFERRAL ELECTIONS. The Committee shall notify each Eligible Employee of his or her eligibility to participate in the Plan; provided, however, that an Eligible Employee's deferral of Salary and Bonus under this Plan for any Plan Year may only commence after the Eligible Employee has satisfied the participation requirement of Article II. An Eligible Employee's elections to participate may be made by telephonic means in accordance with rules and procedures established by the Committee. In addition, notwithstanding anything else contained herein to the contrary, no Eligible Employee shall be allowed to defer Salary and Bonus to the extent the Committee determines in its discretion that such compensation should be withheld to pay the Eligible Employee's portion of taxes under the Federal Insurance Contributions Act, any state, federal or local income taxes, payments required to maintain coverage for the Eligible Employee or the Eligible Employee's dependents under any welfare plan or program of the Company, or any similar payment. (b) ANNUAL ELECTION TO DEFER SALARY AND BONUS. To participate through the deferral of Salary and Bonus for any Plan Year, an Eligible Employee must file an election with the Committee no later than the date in the preceding Plan Year determined by the Committee. Such date shall precede the first day of the Plan Year during which the deferral election shall be effective for the deferral of Salary. With respect to the deferral of any Bonus, such election shall apply to the Eligible Employee's Bonus paid during the Plan Year after such election is filed. Effective for any elections which are applicable to deferrals during Plan Years beginning on or after January 1, 2002, such elections shall stay in force for subsequent Plan Years, unless the Eligible Employee changes or revokes the election as provided herein. (c) ELECTION FOR NEWLY HIRED EMPLOYEE. An Eligible Employee whose employment with the Company commences during a Plan Year may elect to participate in the Plan during such Plan Year by filing a Salary and Bonus deferral election with the Committee prior to the date in which he or she first becomes eligible to participate in the 401(k) Plan. With respect to Salary earned and any Bonus paid on or after this eligibility date, such deferral election shall become effective with the next pay period following such eligibility date for which it is administratively practical for participation to begin. 10 (d) METHOD OF DEFERRAL. Each participation election shall specify the portion of the Eligible Employee's Salary and Bonus that he or she elects to defer. An election to defer Salary and Bonus for a Plan Year shall apply to all Salary earned and Bonuses paid during each pay period beginning in such Plan Year. (e) AMOUNT OF DEFERRALS. For each Plan Year, an Eligible Employee shall make a single election to defer his or her Salary and Bonus under the Plan. Subject to the withholding requirements of Section 3.1(a) above, the amount of Salary and Bonus that an Eligible Employee may elect to defer is any percentage (in 1% increments) up to 15%. (f) DURATION OF DEFERRAL ELECTION. Any deferral election made under paragraphs (b) or (c) shall remain in effect and, except as provided in Subsection 3.1(g), be irrevocable, notwithstanding any change in the Participant's Salary or Bonus, for the entire Plan Year for which it is effective. Any deferral election made with respect to deferrals for Plan Years beginning on or after January 1, 2002, shall remain in effect and, except as provided in Subsection 3.1(g), be irrevocable, notwithstanding any change in the Participant's Salary or Bonus, for (i) the entire Plan Year for which it is effective, and (ii) each entire subsequent Plan Year, unless, prior to the commencement of such subsequent Plan Year, the Participant makes a new election pursuant to Section 3.1(b). (g) EMERGENCY CESSATION OF DEFERRALS. Notwithstanding anything else contained herein to the contrary, a Participant may discontinue his or her Salary and Bonus deferrals under the Plan at any time, provided that the Participant also ceases to make any before-tax deferrals, after-tax contributions, and if applicable, catch-up contributions under the 401(k) Plan and the Beckman Coulter, Inc. Executive Deferred Compensation Plan. Such discontinuance of deferrals, after-tax contributions and catch-up contributions will remain in effect for the remainder of the current Plan Year and the following Plan Year. 11 3.2 COORDINATION WITH 401(K) PLAN ELECTION. -------------------------------------- A Participant's election under Section 3.1 shall specify the combined total percentage of Salary and Bonus that the Participant elects to defer for the relevant Plan Year on a pre-tax basis under this Plan and the 401(k) Plan. Except as provided in Section 3.1(g), such election shall be irrevocable for the Plan Year to which it relates. In addition, such election shall specify that the amount deferred by the Participant shall first be contributed to the 401(k) Plan and may be deferred under this Plan only to the extent that additional elective deferrals by the Participant to the 401(k) Plan would exceed the limits applicable to the 401(k) Plan described in Section 2.1 of the Plan. Effective for Plan Years commencing on or after January 1, 2002, Participants shall make separate elections of the percentage deferrals under this Plan and the 401(k) Plan. ARTICLE IV ACCOUNTS ======== 4.1 RESTORATION DEFERRAL ACCOUNT. ---------------------------- The Committee shall establish and maintain a Restoration Deferral Account for each Participant under the Plan. Notwithstanding anything else contained herein to the contrary, the Committee and the administrator of the 401(k) Plan shall have full power and authority to determine whether amounts of the Participant's Salary and Bonus that the Participant elected to be deferred to the 401(k) Plan for a Plan Year will instead be deferred under this Plan or not deferred under either this Plan or the 401(k) Plan. Subject to the requirements of Article II, a Participant's Restoration Deferral Account shall be credited as follows: 12 (a) INITIAL CREDITING OF SALARY TO RESTORATION DEFERRAL ACCOUNT. As soon as administratively practical after submission of each pay period report, the Plan's recordkeeper shall credit the Participant's Restoration Deferral Account with an amount equal to the portion of Salary deferred by the Participant during the pay period in accordance with the Participant's election under Sections 3.1 and 3.2; that is, the portion of the Participant's Salary that the Participant has elected to be deferred and has been determined by the Committee to be deferred under his or her Restoration Deferral Account. (b) INITIAL CREDITING OF BONUS TO RESTORATION DEFERRAL ACCOUNT. As soon as administratively practical after submission of each pay period report for the period in which the deferred Bonus is paid, the Plan's recordkeeper shall credit the Participant's Restoration Deferral Account with an amount equal to the portion of the Bonus deferred under Sections 3.1 and 3.2; that is, the portion of the Participant's Bonus that the Participant has elected to be deferred and has been determined by the Committee to be deferred under his or her Restoration Deferral Account. (c) CREDITING OF EARNINGS. Interest is accrued daily at the applicable Interest Rate based on the daily Account balance and credited monthly to the Participant's Restoration Deferral Account. For purposes of crediting earnings to such Account, the Interest Rate used may fluctuate from Plan Year to Plan Year and the Interest Rate in effect in a particular Plan Year shall apply to the Participant's entire Account balance without regard to the Plan Year in which any portion of the Account balance was deferred. 4.2 RESTORATION MATCHING ACCOUNT. ---------------------------- The Committee shall establish and maintain a Restoration Matching Account for each Participant under the Plan. Subject to the requirements of Article II, a Participant's Restoration Matching Account shall be credited as follows: 13 (a) INITIAL CREDITING OF RESTORATION MATCHING ACCOUNT. As soon as administratively practical after submission of each pay period report, the Plan's recordkeeper shall credit each Participant's Restoration Matching Account with the number of Units determined by dividing (i) by (ii), where (i) is the additional amount that the Company would have contributed to the Participant's Company Matching Account under the 401(k) Plan for that pay period if the limitations referred to in Section 2.1 of this Plan did not apply to the 401(k) Plan, and (ii) is the Fair Market Value of a share of Common Stock. (b) DIVIDEND EQUIVALENTS RELATED TO RESTORATION MATCHING ACCOUNT. As soon as administratively practical following any date on which dividends are paid on Common Stock, a Participant's Restoration Matching Account shall be credited with additional Units in an amount equal to the amount of the Dividend Equivalents representing cash dividends paid on that number of shares which is equal to the number of Stock Units credited to the Participant's Restoration Matching Account as of the record date established for the dividend payment, divided by the Fair Market Value of a share of Common Stock. (c) CREDITING OF EARNINGS. In the event that benefits cease to be denominated in Stock Units (as determined under Section 9.3), interest will be accrued daily at the applicable Interest Rate based on the daily Account balance and credited monthly to the Participant's Restoration Matching Account. For purposes of crediting earnings to such Account, the Interest Rate used may fluctuate from Plan Year to Plan Year and the Interest Rate in effect in a particular Plan Year shall apply to the Participant's entire Account balance without regard to the Plan Year in which any portion of the Account balance was deferred. 4.3 RETIREMENT PLUS ACCOUNT. ----------------------- The Committee shall establish and maintain a Retirement Plus Account for each Participant under the Plan who is eligible for a contribution to the 401(k) Plan under the Retirement Plus provisions of the 401(k) Plan. Subject to the requirements of Article II, a Participant's Retirement Plus Account shall be credited as follows: 14 (a) INITIAL CREDITING OF RETIREMENT PLUS ACCOUNT. -------------------------------------------- (1) ALLOCATIONS BEFORE 2000. Allocations to Retirement Plus Accounts with respect to Plan Years commencing before January 1, 2000 shall be made as set forth in the provisions of this Section as they existed before Amendment 2000-1. (2) ALLOCATIONS FOR 2000. As soon as administratively practical following each quarter ending during 2000, the Plan's recordkeeper shall credit each Participant's Retirement Plus Account with a number of Units determined by dividing (i) by (ii), where (i) is the additional amount that the Company would have contributed to the Participant's Retirement Plus Contributions Account under the 401(k) Plan for the quarter if the Participant had not deferred the amount of compensation deferred under this Plan for the quarter, and (ii) is the Fair Market Value of a share of Common Stock based on the price used to credit Retirement Plus contributions under the 401(k) Plan for that quarter. Furthermore, effective for the quarters commencing July 1, 2000 and October 1, 2000, the Plan's recordkeeper shall credit each Participant's Retirement Plus Account with a number of Units determined by dividing (x) by (y), where (x) is the additional amount that the Company would have contributed to the Participant's Retirement Plus Contributions Account under the 401(k) Plan if the limitation on compensation set forth in Code Section 401(a)(17) had not applied, and (y) is the Fair Market Value of a share of Common Stock based on the price used to credit Retirement Plus contributions under the 401(k) Plan for that quarter. (3) ALLOCATIONS AFTER 2000. As soon as administratively practical following each Plan Year commencing on or after January 1, 2001, the Plan's recordkeeper shall credit each Participant's Retirement Plus Account with a number of Units determined by dividing (i) by (ii), where (i) is the additional amount that the Company would have contributed to the Participant's Retirement Plus Contributions Account under the 401(k) Plan for the Plan Year if the limitation on compensation set forth in Code Section 401(a)(17) had not applied, and (ii) is the Fair Market Value of a share of Common Stock. 15 (b) DIVIDEND EQUIVALENTS RELATED TO RETIREMENT PLUS ACCOUNT. Dividend equivalents related to Units in a Participant's Retirement Plus Account shall be credited to such Account in the same manner as under Section 4.2(b) above. (c) CREDITING OF EARNINGS. In the event that benefits cease to be denominated in Stock Units (as determined under Section 9.3), interest will be accrued daily at the applicable Interest Rate based on the daily Account balance and credited monthly to the Participant's Retirement Plus Account. For purposes of crediting earnings to such Account, the Interest Rate used may fluctuate from Plan Year to Plan Year and the Interest Rate in effect in a particular Plan Year shall apply to the Participant's entire Account balance without regard to the Plan Year in which any portion of the Account balance was deferred. ARTICLE V VESTING ======= 5.1 VESTING. ------- (a) RESTORATION DEFERRAL ACCOUNT. A Participant's Restoration Deferral Account shall be 100% vested at all times. (b) RESTORATION MATCHING ACCOUNT. A Participant's Restoration Matching Account shall be 100% vested at all times. (c) RETIREMENT PLUS ACCOUNT. A Participant's Retirement Plus Account shall be 100% vested at all times. 17 ARTICLE VI DISTRIBUTIONS ============= 6.1 DISTRIBUTION OF ACCOUNTS. ------------------------ (a) TIME OF DISTRIBUTION. Distribution of a Participant's Accounts under the Plan shall be made as soon as administratively practical following his or her termination from employment for any reason. (b) MANNER OF DISTRIBUTION. The amount to be paid to the Participant shall be the entire amount credited to the Participant's Accounts. (i) Amounts not denominated as Stock Units as of the date of distribution shall be paid in cash and valued as of the date the amount of the distribution is determined. (ii) If, as of the date of distribution, benefits continue to be denominated as Stock Units, then the benefit attributable to the Stock Units credited to a Participant's Accounts shall be distributed in shares of Common Stock. The Fair Market Value of any fractional Stock Units shall be distributed in cash; such Fair Market Value shall be determined as of the date used by the trustee of the Trust to determine the taxable income reportable with respect to the shares of Common Stock distributed. 6.2 INABILITY TO LOCATE PARTICIPANT. ------------------------------- In the event that the Committee is unable to locate a Participant or Beneficiary within two years following the date the Participant was to commence receiving payment or delivery pursuant to Section 6.1, the entire amount allocated to the Participant's Accounts shall be forfeited. If, after such forfeiture, the Participant or Beneficiary later claims such benefit, such benefit shall be reinstated without interest, earnings or further crediting of Dividend Equivalents, from the date of the forfeiture. The distribution of such benefits shall thereafter be made in the manner determined by the Committee. 18 6.3 EARLY AND HARDSHIP DISTRIBUTIONS. -------------------------------- Notwithstanding anything in this Article VI, the Plan shall permit an in-service early or hardship distribution as follows: (a) EARLY DISTRIBUTION. At any time, a Participant, at his or her sole discretion, may withdraw up to 100% of the balance of his or her Accounts subject to a 10% penalty of the amount withdrawn. The 10% penalty shall be permanently and irrevocably forfeited. The Company shall thereafter have no obligation to pay the forfeited amount. (b) HARDSHIP DISTRIBUTION. A Participant may receive a hardship distribution, from his or her Accounts, subject to the approval of the Committee, if the Participant has a financial hardship. A financial hardship exists if the Participant demonstrates to the satisfaction of the Committee that he or she has suffered (i) a severe financial hardship which is unforeseeable or (ii) a financial hardship as defined in the 401(k) Plan, and that he or she does not have other assets (excluding those assets which may be available under the 401(k) Plan and the Beckman Coulter, Inc. Employees' Stock Purchase Plan), sufficient to satisfy the financial need created by the hardship. The determination of whether a Participant has suffered a hardship shall be made by the Committee in its sole discretion. A hardship distribution, if made, shall be in an amount no greater than the amount needed to satisfy the hardship (including amounts required to satisfy applicable Federal and state tax withholding), as determined by the Committee. (c) WITHDRAWAL ELECTION FORM. For distributions under this Section 6.3, the Participant shall designate on a withdrawal form provided by the Company from which Account the distribution is to be made. Such distributions will be made as soon as administratively practical following the Participant's submission of a completed withdrawal form. Distributions under this Section 6.3 do not result in suspension from participation in the Plan. 19 (i) The portion of the withdrawal not denominated as Stock Units as of the date of distribution shall be paid in cash and valued as of the date the amount of the distribution is determined. (ii) If, as of the date of distribution, benefits continue to be denominated as Stock Units, then the portion of the withdrawal attributable to the Stock Units credited to a Participant's Accounts shall be distributed in shares of Common Stock. The Fair Market Value of any fractional Stock Units shall be distributed in cash; such Fair Market Value shall be determined as of the date used by the trustee of the Trust to determine the taxable income reportable with respect to the shares of Common Stock distributed. 6.4 DISTRIBUTIONS ON DEATH. ---------------------- In the event of the death of a Participant, the Participant's Accounts shall be paid to the Participant's Beneficiary as soon as administratively practical following the Participant's death. 6.5 CHANGE OF TRUST STATUS. Notwithstanding anything contained in this Plan to the contrary, if at any time the Trust is finally determined by the Internal Revenue Service ("IRS") not to be a "grantor trust" with the result that the income of the Trust is not treated as income of the Company pursuant to Sections 671 through 679 of the Code, or if a tax is finally determined by the IRS to be payable by one or more Participants or Beneficiaries with respect to any interest in the Plans or the Trust prior to payment of such interest to any such Participant or Beneficiary, the Committee shall immediately determine each Participant's share of the Trust in accordance with this Plan, and such other plans with respect to which assets are held in the Trust (together with the Plan, the "Nonqualified Plans"), and the Trustee shall immediately distribute such share in a lump sum to each Participant or Beneficiary entitled thereto, regardless of whether such Participant's employment has terminated and regardless of form and time of payments specified in or pursuant to the Plan in such amounts and in the manner instructed by the Committee. If the value of the Trust is less than the benefit obligations under the Nonqualified Plans, the foregoing described distributions will be limited to a Participant's share of the Trust, determined by allocating assets to the Participant based on the ratio of the Participant's benefit obligations under the Nonqualified Plans to the total benefit obligations under the Nonqualified Plans. 20 ARTICLE VII CLAIMS PROCEDURE AND ARBITRATION ================================ 7.1 CLAIMS PROCEDURE AND ARBITRATION. -------------------------------- (a) The Committee (or, upon and after a Change in Control Event, the Administrator) shall establish a reasonable claims procedure consistent with the requirements of ERISA. In the event of a claim for payment under this Plan or any dispute regarding the interpretation of this Plan, the Participant, or following the Participant's death, his or her Beneficiary (collectively referred to in this section as "Claimant") shall be required to submit such matter for review in accordance with the claims procedure established by the Committee (or Administrator). (b) If a Claimant has exhausted the claims procedure referred to in subsection (a) and he or she is dissatisfied with the outcome, the Claimant may, if he or she desires, submit any claim for payment under this Plan or any dispute regarding the interpretation of this Plan to arbitration. This right to select arbitration shall be solely that of the Claimant, and the Claimant may decide whether or not to arbitrate in his or her discretion. The "right to select arbitration" does not impose on the Claimant a requirement to submit a dispute for arbitration. The Claimant may, in lieu of arbitration, bring an action in appropriate civil court. The Claimant retains the right to select arbitration, even if a civil action (including, without limitation, an action for declaratory relief) is brought by the Company or any other fiduciary of this Plan prior to the commencement of arbitration. If arbitration is selected by the Claimant after a civil action concerning the Claimant's dispute has been brought by a person other than the Claimant, the Company, and the Claimant shall take such actions as are necessary or appropriate, including dismissal of the civil action, so that the arbitration can be timely heard. Once arbitration is commenced, it may not be discontinued without the unanimous consent of all parties to the arbitration. During the lifetime of the Participant only he or she can use the arbitration procedure set forth in this section. 21 (c) Any claim for arbitration may be submitted as follows: if the Claimant disagrees with an interpretation of this Plan by the Company or any fiduciary of this Plan, or disagrees with the calculation of his or her benefit under this Plan, such claim may be filed in writing with an arbitrator of the Claimant's choice who is selected by the method described in the next four sentences. The first step of the selection shall consist of the Claimant submitting in writing a list of five potential arbitrators to the Company. Each of the five arbitrators must be either (i) a member of the National Academy of Arbitrators located in the state of California or (ii) a retired California Superior Court or Appellate Court judge. Within one week after receipt of the list, the Company shall select one of the five arbitrators as the arbitrator of the dispute in question. If the Company fails to select an arbitrator in a timely manner, the Claimant then shall designate one of the five arbitrators as the arbitrator of the dispute in question. (d) The arbitration hearing shall be held within seven days (or as soon thereafter as possible) after the selection of the arbitrator. No continuance of said hearing shall be allowed without the mutual consent of the Claimant and the Company. Absence from or nonparticipation at the hearing by any party shall not prevent the issuance of an award. Hearing procedures that will expedite the hearing may be ordered at the arbitrator's discretion, and the arbitrator may close the hearing in his sole discretion when he or she decides he or she has heard sufficient evidence to justify issuance of an award. The arbitrator shall apply the same procedure referred to in Section 7.1(a) as would be applied by a court of proper jurisdiction. Accordingly, prior to a Change in Control Event, the arbitrator shall not apply a de novo standard of review in reviewing the decision rendered through the claims procedure but rather shall apply an arbitrary and capricious standard of review, and upon and after a Change in Control Event, the arbitrator shall apply a de novo standard of review. (e) The arbitrator's award shall be rendered as expeditiously as possible and in no event later than one week after the close of the hearing. In the event the arbitrator finds that the Claimant is entitled to the benefits he or she claimed, the arbitrator shall order the Company to pay or deliver such benefits (which may be paid from the Trust), in the amounts and at such time as the arbitrator determines. The award of the arbitrator shall be final and binding on the parties. The Company shall thereupon pay or deliver (or the trustee of the Trust shall pay or deliver) to the Claimant immediately the amount that the arbitrator orders to be paid or delivered in the manner described in the award. The award may be enforced in any appropriate court as soon as possible after its rendition. If any action is brought to confirm the award, no appeal shall be taken by any party from any decision rendered in such action. 22 (f) This subsection (f) shall apply only following the occurrence of a Change in Control Event. If the arbitrator determines that the Claimant is entitled to the claimed benefits, the arbitrator shall direct the Company to pay to the Claimant, and Company shall pay to the Claimant in accordance with such order, an amount equal to the Claimant's expenses in pursuing the claim, including attorneys' fees. Such payment shall not be made from the Trust. ARTICLE VIII ADMINISTRATION ============== 8.1 COMMITTEE; ADMINISTRATOR. ------------------------ (a) The Committee shall be appointed by, and serve at the pleasure of, the Board of Directors. The number of members comprising the Committee shall be determined by the Board which may from time to time vary the number of members. A member of the Committee may resign by delivering a written notice of resignation to the Board. The Board may remove any member by delivering a certified copy of its resolution of removal to such member. Vacancies in the membership of the Committee shall be filled promptly by the Board. (b) Upon and after a Change in Control Event, the Committee shall cease to have authority concerning the administration of this Plan and such authority shall be assumed by the Administrator. 8.2 COMMITTEE ACTION. ---------------- The Committee shall act at meetings by affirmative vote of a majority of the members of the Committee. Any action permitted to be taken at a meeting may be taken without a meeting if, prior to such action, a written consent to the action is signed by all members of the Committee and such written consent is filed with the minutes of the proceedings of the Committee. A member of the Committee shall not vote or act upon any matter which relates solely to himself or herself as a Participant. The chairman of the Committee (the "Chairman") or any other member or members of the Committee designated by the Chairman may execute any certificate or other written direction on behalf of the Committee. 24 8.3 POWERS AND DUTIES OF THE COMMITTEE OR ADMINISTRATOR. --------------------------------------------------- Subject to Section 8.4, the Committee or Administrator (as applicable), on behalf of the Participants and their Beneficiaries, shall enforce this Plan in accordance with its terms, shall be charged with the general administration of this Plan, and shall have all powers necessary to accomplish its purposes, including, but not by way of limitation, the following: (a) Prior to a Change in Control Event, to construe and interpret the terms and provisions of the Plan; provided that upon and after a Change in Control Event, the Administrator's interpretation or construction (and any previous interpretation or construction of the Committee) shall be reviewed on a de novo basis. (b) To compute and certify to the amount and kind of benefits payable or deliverable to Participants and their Beneficiaries. (c) To maintain all records that may be necessary for the administration of this Plan; (d) To provide for the disclosure of all information and the filing or provision of all reports and statements to Participants, Beneficiaries or governmental agencies as shall be required by law; (e) To make and publish such rules for the regulation of this Plan and procedures for the administration of this Plan as are not inconsistent with the terms hereof; and (f) To appoint a plan administrator or any other agent, and to delegate to them such powers and duties in connection with the administration of this Plan as the Committee may from time to time prescribe. 25 (g) To direct the Trustee concerning the performance of various duties and responsibilities under the trust including exercising all voting rights connected with the stock, including voting rights 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 of Directors. 8.4 INTERPRETATION OF PLAN. ---------------------- Prior to the occurrence of a Change in Control Event, the Committee shall have full discretion to construe and interpret the terms and provisions of this Plan, which interpretation or construction shall be final and binding on all parties, including but not limited to the Company and any Participant or Beneficiary. The Committee shall administer such terms and provisions in a uniform and nondiscriminatory manner and in full accordance with any and all laws applicable to this Plan. Notwithstanding the foregoing, after the occurrence of a Change in Control Event, the Administrator, rather than the Committee, shall construe and interpret the Plan, no deference shall be given to the Administrator's construction or interpretation (or the Committee's prior interpretation or construction) of the Plan and any such construction or interpretation shall be reviewed under a de novo standard of review. In making any determination or in taking or not taking any action under this Plan, the Committee, the Administrator or the Board, as the case may be, may obtain and may rely upon the advice of experts, including professional advisors to the Company. No director, officer or agent of the Company shall be liable for any such action or determination taken or made or omitted in good faith. 8.5 PLAN CONSTRUCTION. ----------------- (a) RULE 16B-3. It is the intent of the Company that transactions in and affecting securities issued hereunder in the case of Participants who are or may be subject to Section 16 of the Exchange Act satisfy any then applicable requirements of Rule 16b-3 so that such persons (unless they otherwise agree) will be entitled to the benefits of Rule 16b-3 or other exemptive rules under Section 16 of the Exchange Act in respect of those transactions and will not be subjected to avoidable liability thereunder. If any provision of this Plan would otherwise frustrate or conflict with the intent expressed above, that provision to the extent possible shall be interpreted as to avoid such conflict. 26 (b) TREASURY REGULATION SECTION 1.401(K)-L(E)(6). It is further the intent of the Company that a Participant's deferrals of Salary, Bonus and matching contributions under the Plan shall not be considered conditioned on the Participant's participation in the 401(k) Plan in accordance with Treasury Regulation Section 1.401(k)-1(e)(6)(iv), and this Plan shall be interpreted consistent with such intent. 8.6 INFORMATION. ----------- To enable the Committee or Administrator to perform its functions, the Company shall, upon request of the Committee or Administrator, supply full and timely information to the Committee or Administrator on all matters relating to the Salary and Bonus of all Participants, their death, or other cause of termination, and such other pertinent facts as the Committee or Administrator may require. 8.7 COMPENSATION, EXPENSES AND INDEMNITY. ------------------------------------ (a) The Committee or Administrator is authorized at the expense of the Company to employ such legal counsel and administrative services as it may deem advisable to assist in the performance of its duties hereunder. Expenses and fees in connection with the administration of this Plan shall be paid by the Company. (b) To the extent permitted by applicable state law, the Company shall indemnify and save harmless the Committee and each member thereof, the Administrator, the Board of Directors and any delegate of the Committee or Administrator who is an employee of the Company against any and all expenses, liabilities and claims, including legal fees to defend against such liabilities and claims arising out of their discharge in good faith of responsibilities under or incident to this Plan, other than expenses and liabilities arising out of willful misconduct. This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Company or provided by the Company under any bylaw, agreement or otherwise, as such indemnities are permitted under state law. 27 (c) When the Committee becomes aware that a Change in Control Event is expected to occur, and prior to such Change in Control Event, an amount estimated by the Committee to equal the costs of administrating the Plan for two years after the Change in Control Event shall be irrevocably deposited by the Company in the Trust. Such amount may be used to pay the expenses of administering the Plan, and if such amount is exhausted, the Company shall resume payment of the expenses. ARTICLE IX MISCELLANEOUS ============= 9.1 UNSECURED GENERAL CREDITOR. -------------------------- Participants and their Beneficiaries, heirs, successors, and assigns shall have no legal or equitable rights, claims, or interest in any specific property or assets of the Company. No assets of the Company shall be held under any trust (other than a grantor trust within the meaning of Section 671, ET. SEQ. of the Code), or held in any way as collateral security for the fulfilling of the obligations of the Company under this Plan. Any and all of the Company's assets shall be, and remain, the general unpledged, unrestricted assets of the Company. The Company's obligation under this Plan shall be merely that of an unfunded and unsecured promise of the Company to pay money in the future, and the rights of the Participants and Beneficiaries shall be no greater than those of unsecured general creditors. 9.2 NO EMPLOYMENT CONTRACT. ---------------------- Nothing contained in this Plan (or in any other documents related to this Plan) shall confer upon any Eligible Employee or other Participant any right to continue in the employ or other service of the Company or constitute any contract or agreement of employment or other service, nor shall interfere in any way with the right of the Company to change such person's compensation or other benefits or to terminate the employment of such person, with or without cause. 28 9.3 ADJUSTMENTS IN CASE OF CHANGES IN COMMON STOCK. ---------------------------------------------- If any stock dividend, stock split, recapitalization, merger, consolidation, combination or other reorganization, exchange of shares, sale of all or substantially all of the assets of the Company, split-up, split-off, spin-off, extraordinary redemption, liquidation or similar change in capitalization or any distribution to holders of the Common Stock (other than cash dividends and cash distributions) shall occur, proportionate and equitable adjustments consistent with the effect of such event on stockholders generally (but without duplication of benefits if Dividend Equivalents are credited) shall be made in respect of Units and Accounts credited under this Plan so as to preserve the benefits intended. To the extent the consideration paid to holders of Common Stock is readily tradable common stock of another company, then the common stock of such other company shall be considered Common Stock hereunder. To the extent the consideration paid to holders of Common Stock is other than readily tradable common stock of another company, then the fair market value of the such consideration shall be credited to the Participants' respective Accounts, and shall thereafter be credited with earnings and shall be distributed according to the provisions of this Plan. 9.4 RESTRICTION AGAINST ASSIGNMENT. ------------------------------ The Company shall pay all amounts payable hereunder only to the person or persons designated by this Plan and not to any other person or corporation. No part of a Participant's Accounts shall be liable for the debts, contracts, or engagements of any Participant, his or her Beneficiary, or successors in interest, nor shall a Participant's Accounts be subject to execution by levy, attachment, or garnishment or by any other legal or equitable proceeding, nor shall any such person have any right to alienate, anticipate, commute, pledge, encumber, or assign any benefits or payments hereunder in any manner whatsoever. If any Participant, Beneficiary or successor in interest is adjudicated bankrupt or purports to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge any distribution or payment from this Plan, voluntarily or involuntarily, the Committee, in its discretion, may cancel such distribution or payment (or any part thereof) to or for the benefit of such Participant, Beneficiary or successor in interest in such manner as the Committee shall direct. 29 9.5 WITHHOLDING. ----------- The Company shall satisfy any state or federal income or other tax withholding obligation arising upon distribution of a Participant's Accounts. The Participant shall pay or provide for payment in cash of the amount of any taxes which the Company may be required to withhold with respect to the benefits hereunder, and shares of Common Stock held for the benefit of the Participant in the Trust may be sold to raise cash to satisfy any withholding requirement. 9.6 AMENDMENT, MODIFICATION, SUSPENSION OR TERMINATION. -------------------------------------------------- The Company may amend, modify, suspend or terminate this Plan in whole or in part and the Committee may amend or modify this Plan in whole or in part, except that (i) no amendment, modification, suspension or termination shall have any retroactive effect to reduce any amounts allocated to Participants' Accounts, (ii) Sections 4.1(c), 4.2(b) and 4.3(b) may not be amended, modified or suspended so as to, with respect to any amounts credited to the Accounts as of the date of such amendment, reduce the amount of earnings or Dividend Equivalents to be credited to Participants' Accounts in accordance with Sections 4.1(c), 4.2(b) and 4.3(b), respectively, and (iii) Section 7.1 may not be amended with respect to any Participant or Beneficiary following the date the Participant or Beneficiary makes a claim for benefits under this Plan. In the event that this Plan is terminated, the amounts credited to a Participant's Accounts shall be distributed to the Participant or, in the event of his or her death, his or her Beneficiary in a lump sum within ninety (90) days following the date of Plan termination. 9.7 GOVERNING LAW. ------------- Except to the extent preempted by ERISA or other applicable federal law, this Plan shall be construed, governed and administered in accordance with the laws of the State of California. 30 9.8 RECEIPT OR RELEASE. ------------------ Any payment to a Participant or the Participant's Beneficiary in accordance with the provisions of this Plan shall, to the extent thereof, be in full satisfaction of all claims against the Committee and the Company. The Committee may require such Participant or Beneficiary, as a condition precedent to such payment or delivery, to execute a receipt and release to such effect. 9.9 PAYMENTS ON BEHALF OF PERSONS UNDER INCAPACITY. ---------------------------------------------- In the event that any amount becomes payable to a person who, in the sole judgment of the Committee, is considered by reason of physical or mental condition to be unable to give a valid receipt therefore, the Committee may direct that such payment be made to any person found by the Committee, in its sole judgment, to have assumed the care of such person. Any payment or delivery made pursuant to such determination shall constitute a full release and discharge of the Committee and the Company. 9.10 HEADINGS, ETC. NOT PART OF AGREEMENT. ------------------------------------ Headings and subheadings in this Plan are inserted for convenience of reference only and are not to be considered in the construction of the provisions hereof. 31 This restated Plan is hereby adopted by Beckman Coulter, Inc. effective May 1, 2002. BECKMAN COULTER, INC. By: /S/ FIDENCIO M. MARES -------------------------------------- Fidencio M. Mares Its: VICE PRESIDENT, HUMAN RESOURCES ------------------------------------- 32 EX-4 8 ex43_deferdirectfeeprog.txt EXHIBIT 4.3 DEFERRED DIRECTORS FEE PROGRAM BECKMAN COULTER, INC. ===================== DEFERRED DIRECTORS' FEE PROGRAM =============================== (AMENDED AND RESTATED EFFECTIVE AS OF MAY 1, 2002) ================================================== BECKMAN COULTER, INC. DEFERRED DIRECTORS' FEE PROGRAM ------------------------------- (AMENDED AND RESTATED EFFECTIVE AS OF MAY 1, 2002) 1. PURPOSE The Deferred Directors' Fee Program (the "Plan") is intended to provide non-employee directors of Beckman Coulter, Inc. ("Beckman Coulter") with a means to promote stock ownership and to defer income until their termination of status as a director. Effective May 1, 2002, Beckman Coulter has amended and restated the Plan as set forth herein to (i) provide that directors may elect to defer fees in the form of cash or in the form of Stock Units (as defined in Section 5.1); (ii) provide that distributions of benefits valued by reference to Stock Units be distributed in the form of Beckman Coulter Common Stock, and benefits not so valued be distributed in the form of cash, (iii) add provisions consistent with the establishment of a grantor trust for the purpose of satisfying some or all of Beckman Coulter's obligations under this plan; and (iii) make certain other miscellaneous changes. The Plan is amended and restated effective as of May 1, 2002; provided, however, that the officers of Beckman Coulter shall implement the provisions regarding the cash or Stock Unit elections and distributions as soon thereafter as reasonably feasible, and the officers may phase in the provisions regarding stock distributions over a period of time if the officers determine that such a phase-in would be in the interests of Beckman Coulter. 2. ELIGIBLE Non-employee directors of Beckman Coulter entitled to directors' fees. 1 3. DEFERRAL ELECTIONS 3.1 A percentage of a director's fees (including annual retainer, meeting, chair and any other fees paid, but not including reimbursement of expenses) to be deferred must be specified by the director in writing to Beckman Coulter no later than December 31 of the calendar year immediately preceding the calendar year in which the fees shall be payable. 3.2 A participant's election to defer his or her director's fees under the Plan shall specify whether such amount is to be deferred in the form of (1) cash, in accordance with Section 4, and/or (2) Stock Units in accordance with Section 5. The fee amount deferred, together with any applicable premium multiplier, shall be known as the "Deferred Amount." 3.3 The election to defer and the amount or percentage elected are irrevocable. For subsequent years, no additional deferral of fees will take place unless a new election is made by the director. The portion of fees deferred is an offset against and cannot exceed the amount of the director's fees otherwise payable to the participant for that calendar year. 4. CASH DEFERRAL ACCOUNT 4.1 Beckman Coulter shall establish and maintain a Cash Deferral Account for each participant under the Plan. "Cash Deferral Account" shall mean the bookkeeping account maintained by Beckman Coulter on behalf of a participant who elects to defer his or her director's fees in cash pursuant to Section 3.2. 2 4.2 As soon as administratively practical after the date on which the Deferred Amount would otherwise have been paid as director's fees absent the election to defer, the Plan's recordkeeper shall credit the participant's Cash Deferral Account with an amount equal to the portion of director's fees deferred that the participant has elected to be deferred under his or her Cash Deferral Account. 4.3 Interest is accrued daily at the applicable Interest Rate based on the daily Cash Deferral Account balance and credited monthly to the participant's Cash Deferral Account. "Interest Rate" shall mean, for each year, the prime rate of interest established by Bank of America, NT&SA in effect as of the July 31 preceding the relevant year. For purposes of crediting earnings to such account, the Interest Rate used may fluctuate from year to year and the Interest Rate in effect in a particular year shall apply to the participant's entire Cash Deferral Account balance without regard to the year in which any portion of the account balance was deferred. 5. STOCK UNIT ACCOUNT 5.1 Beckman Coulter shall establish and maintain a Stock Unit Account for each participant under the Plan. (a) "Stock Unit Account" shall mean the bookkeeping account maintained by Beckman Coulter on behalf of each participant who elects to defer his or her director's fees in Stock Units pursuant to Section 3.2. A participant's Stock Unit Account shall be credited with the portion of his or her director's fees he or she has elected to defer in the form of Stock Units. 3 (b) "Stock Units" shall be deemed, for bookkeeping purposes, to be equivalent to the corresponding amount of outstanding shares of Common Stock (as defined in Section 5.3) solely for purposes of this Plan. The Stock Units credited to a participant's Stock Unit Account shall be used solely as a device for the determination of the value of the participant's account, to be eventually distributed in Common Stock held by the Trust (defined in Section 5.4 below) to such participant in accordance with this Plan. The value of a participant's Stock Units will vary on any given date due to market fluctuations in the price of Common Stock. The Stock Units shall not be treated as property or as a trust fund of any kind. No participant shall be entitled to any voting or other stockholder rights with respect to Stock Units credited under this Plan. The amount of Stock Units credited shall be subject to adjustment in accordance with Section 7. (c) "Fair Market Value" shall mean: (1) If the Common Stock is being valued in connection with a transaction (such as the crediting of amounts to an account or a distribution) for which Beckman Coulter (or the Administrator) determines there is a corresponding transaction by the Trust, the net price per share of Common Stock purchased or the net proceeds per share of Common Stock sold in the transaction by the Trust, in each case including all expenses of such transaction by the Trust. (2) If paragraph (1) does not apply, (a) the closing price of the Common Stock on the New York Stock Exchange on the date for which the fair market value is determined, or, if there is no trading of the Common Stock on such date, then the closing price of the Common Stock on the New York Stock Exchange on the next preceding date on which there was trading in such shares; or (b) if the Common Stock is not listed, admitted or quoted, Beckman Coulter (or the Administrator) may designate such other source of data as it deems appropriate for determining such value for purposes of this Plan. 4 5.2 DEFERRAL INCENTIVE PREMIUM MULTIPLIER: The amount credited to the participant's Stock Unit Account shall be increased by a multiplier applied to each payment deferred based on the percentage of fees the director has elected to defer in Stock Units, as shown below: ------------------------------------------------- % of Fee Deferred Premium Multiplier in Stock Units ------------------------------------------------- Less than 40% 0% ------------------------------------------------- At least 40%, but less 15% than 60% ------------------------------------------------- At least 60%, but less 20% than 80% ------------------------------------------------- 80% to 100% 30% ------------------------------------------------- 5.3 "Common Stock" shall mean the Common Stock of Beckman Coulter (or such other publicly traded common stock as replaces Common Stock of Beckman Coulter after a corporate transaction as set forth in Section 8.1 below). The calculation of the number of Stock Units from the initial Deferred Amount and adjustments thereafter are made in the following manner: (a) The number of Stock units from the Deferred Amount is calculated by dividing the Deferred Amount by the Fair Market Value of a share of Common Stock. (b) Beckman Coulter Common Stock dividends or other distributions will be credited to each participant's Stock Unit Account on the payment date for stockholders of record. Stock Units will be credited with respect to these dividends/distributions in the same manner as set forth in Section 5.3(a) above. 5 5.4 PAYMENTS FROM TRUST: Payments shall be made from Common Stock held by a grantor trust established and funded by Beckman Coulter for the purpose of satisfying some or all of Beckman Coulter's obligations under the Plan (the "Trust") under an agreement by and between Beckman Coulter and the Trustee establishing the Trust (the "Trust Agreement"). Notwithstanding anything contained in this Plan to the contrary, if at any time the Trust is finally determined by the Internal Revenue Service ("IRS") not to be a "grantor trust" with the result that the income of the Trust is not treated as income of the Company pursuant to Sections 671 through 679 of the Code, or if a tax is finally determined by the IRS to be payable by one or more participants or beneficiaries with respect to any interest in the Plans or the Trust prior to payment of such interest to any such participant or beneficiary, Beckman Coulter (or the Administrator) shall immediately determine each participant's share of the Trust in accordance with this Plan and such other plans with respect to which assets are held in the Trust (together with the Plan, the "Nonqualified Plans"), and the Trustee shall immediately distribute such share in a lump sum to each participant or beneficiary entitled thereto, regardless of whether such Participant's service as a director has terminated and regardless of form and time of payments specified in or pursuant to the Plan in such amounts and in the manner instructed by Beckman Coulter (or the Administrator). If the value of the Trust is less than the benefit obligations under the Nonqualified Plans, the foregoing described distributions will be limited to a participant's share of the Trust, determined by allocating assets to the participant based on the ratio of the participant's benefit obligations under the Nonqualified Plans to the total benefit obligations under the Nonqualified Plans. 5.5 CREDITING OF EARNINGS: In the event that benefits cease to be denominated in Stock Units (as determined under Section 8.1), interest will be accrued daily at the applicable Interest Rate based on the participant's daily account balance and credited monthly to the participant's Stock Unit Account. For purposes of crediting earnings to such account, the Interest Rate used may fluctuate from year to year and the Interest Rate in effect in a particular year shall apply to the participants entire account balance without regard to the year in which any portion of the account balance was deferred. 6 6. DISTRIBUTION OF ACCOUNTS 6.1 TIME AND FORM OF DISTRIBUTION. A participant shall, on the election filed pursuant to Section 3.2, elect to receive distribution of the participant's accounts in accordance with one of the following options: (a) SINGLE LUMP SUM ON TERMINATION. A lump sum payable on or as soon as administratively practical following the date the participant's service as a director terminates. (b) 50/50 LUMP SUM ON TERMINATION. A lump sum of an amount equal to 50% of the balance of the participant's account payable upon or as soon as administratively practical following the participant's termination of service as a director, with the remaining balance of the participant's account distributed in a lump sum as soon as administratively practical after the January 1 which follows the calendar year during which the initial 50% of the participant's account was distributed. Until the final distribution is made, earnings and dividends shall continue to be credited to the undistributed balances in the participant's accounts. (c) INSTALLMENTS. Subject to the requirements described in this Section 6.1(e), substantially equal annual installments over five (5) to fifteen (15) years commencing upon or as soon as administratively practical following the date the participant terminated services as a director. The amount of the first annual payment shall be determined by dividing the balance of the participant's accounts by the appropriate number of years in the installment period. Each subsequent payment is determined by dividing the remaining balance by the remaining number of years in the installment period. Each subsequent annual installment shall be payable during each January which follows the participant's termination 7 of services as a director and which occurs during the installment period. Until the valuation date for the final distribution, earnings and dividends shall continue to be credited to the undistributed balances in the participant's accounts in the manner described in Sections 4.3 and 5.3(b). Notwithstanding anything else contained herein to the contrary, the distribution option described in this Section 6.1(c) shall only be available to a participant if the total value of his or her accounts which are to be distributed pursuant to this Section 6.1(c) is at least $100,000 as of the date of his or her termination of services as a director. In the event that a participant has elected an installment form of distribution and the value of his or her vested accounts which are to be distributed in the form of installments is less than $100,000 as of his or her termination of services as a director, the accounts shall be paid as a 50/50 Lump Sum on Termination in accordance with Section 6.1(b). 6.2 MANNER OF DISTRIBUTION. (a) Amounts not denominated as Stock Units as of the date of distribution shall be paid in cash and valued as of the date the amount of the distribution is determined. (b) If, as of the date of distribution, benefits continue to be denominated as Stock Units, then the benefit attributable to the Stock Units credited to a participant's Stock Unit Account shall be distributed in shares of Common Stock. The Fair Market Value of any fractional Stock Units shall be distributed in cash; such Fair Market value shall be determined as of the date used by the trustee of the Trust to determine the taxable income reportable with respect to the shares of Common Stock distributed. 8 (d) A participant's distribution election form shall be valid if it is made at least one year prior to the date benefit payments would otherwise have commenced under the participant's immediately preceding valid distribution election form. If no election has been made prior to one year before the date of the termination of the participant's services as a director, then the distribution shall be made in a lump sum. (e) Distribution election forms that are not valid under the preceding sentence (i.e., election forms received within twelve (12) months of the date benefit payments would otherwise have commenced under the participant's immediately preceding valid distribution election form) shall be void and shall be disregarded. 6.3 DEATH OF PARTICIPANT: In the event of the participant's death, payments will be made in a lump sum to the designated beneficiary. 7. ADJUSTMENTS IN CASE OF CHANGES IN COMMON STOCK If any stock dividend, stock split, recapitalization, merger, consolidation, combination or other reorganization, exchange of shares, sale of all or substantially all of the assets of Beckman Coulter, split-up, split-off, spin-off, extraordinary redemption, liquidation or similar change in capitalization or any distribution to holders of the Common Stock (other than cash dividends or distributions) shall occur, proportionate and equitable adjustments consistent with the effect of such event on stockholders generally (but without duplication of benefits if dividends and distributions have been credited according to Section 6.2 above) shall be made in respect of Stock Units credited under this Plan so as to preserve the benefits intended. To the extent the consideration paid to holders of Common Stock is readily tradable common stock of another company, then the common stock of such other company shall be considered Common Stock hereunder. To the extent the consideration paid to holders of Common Stock is other than readily tradable common stock of another company, then the fair market value of such consideration shall be credited to the participant's Cash Deferral Account, and shall thereafter be credited with earnings and shall be distributed according to the provisions of this Plan. 9 8. ADMINISTRATION FOLLOWING A CHANGE IN CONTROL EVENT 8.1 "Change in Control Event" for purposes of this Plan shall mean the following and shall be deemed to occur if any of the following events occur: (a) any "person," as such term is used in Sections 13(d) and 14(d) of the Exchange Act, other than an employee benefit plan of Beckman Coulter, Inc. ("Beckman Coulter"), or a trustee or other fiduciary holding securities under an employee benefit plan of Beckman Coulter, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Beckman Coulter representing 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities, provided that, no Change in Control Event shall be deemed to occur solely because a corporation (the "seller") owns 15% or more of Beckman Coulter voting securities if such ownership is only a transitory step in a reorganization whereby Beckman Coulter purchases the assets of the seller for Beckman Coulter voting securities and the seller liquidates shortly thereafter; (b) individuals who, as of the date hereof, constitute the Board of Beckman Coulter (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by Beckman Coulter stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of Beckman Coulter, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall be considered as though such person were a member of the Incumbent Board of Beckman Coulter; 10 (c) the stockholders of Beckman Coulter approve a merger or consolidation with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of Beckman Coulter outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of another entity) more than 85% of the combined voting power of the voting securities of Beckman Coulter or such other entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of Beckman Coulter (or similar transaction) in which no person acquires 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities; or (d) the stockholders of Beckman Coulter approve a plan of complete liquidation of Beckman Coulter or an agreement for the sale or disposition by Beckman Coulter of all or substantially all of Beckman Coulter's assets. Notwithstanding the preceding sentence, a Change in Control Event shall not be deemed to have occurred if the "person" described in the preceding sentence is an underwriting syndicate which has acquired the ownership of 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities solely in connection with a public offering of Beckman Coulter's securities. If, after any of the events deemed to constitute a Change in Control Event occurs, the transaction approved by the stockholders does not actually transpire, the Change in Control Event will be retroactively deemed not to have occurred. 8.2 Upon and after a Change in Control Event, authority concerning the administration of this Plan shall be assumed by the Administrator. "Administrator" shall mean the person selected as provided in the Trust Agreement to administer the Plan upon and after a Change in Control Event. 11 8.3 After a Change in Control Event, the Administrator shall enforce this Plan in accordance with its terms, shall be charged with the general administration of this Plan, and shall have all powers necessary to accomplish its purposes, including, but not by way of limitation, the following: (a) To compute and certify to the amount and kind of benefits payable or deliverable to participants and their Beneficiaries; (b) To maintain all records that may be necessary for the administration of this Plan; (c) To provide for the disclosure of all information and the filing or provision of all reports and statements to participants, Beneficiaries or governmental agencies as shall be required by law; and (d) To direct the Trustee concerning the performance of various duties and responsibilities under the trust including exercising all voting rights connected with the stock, including voting rights 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 of Directors. 9. COMPENSATION, EXPENSES AND INDEMNITY OF THE ADMINISTRATOR 9.1 The Administrator is authorized at the expense of Beckman Coulter to employ such legal counsel and administrative services as it may deem advisable to assist in the performance of its duties hereunder. Expenses and fees in connection with the administration of this Plan shall be paid by Beckman Coulter. 12 9.2 To the extent permitted by applicable state law, Beckman Coulter shall indemnify and save harmless the Administrator and any delegate of the Administrator who is an employee of Beckman Coulter against any and all expenses, liabilities and claims, including legal fees to defend against such liabilities and claims arising out of their discharge in good faith of responsibilities under or incident to this Plan, other than expenses and liabilities arising out of willful misconduct. This indemnity shall not preclude such further indemnities as may be available under insurance purchased by Beckman Coulter or provided by Beckman Coulter under any bylaw, agreement or otherwise, as such indemnities are permitted under state law. 9.3 When the Board becomes aware that a Change in Control Event is expected to occur, and prior to such Change in Control Event, an amount estimated by Beckman Coulter equal to the costs of administrating the Plan for two years following the Change in Control Event shall be irrevocably deposited by Beckman Coulter in the Trust. Such amount may be used to pay the expenses of administering the Plan, and if such amount is exhausted, Beckman Coulter shall resume payment of the expenses. 10. ARBITRATION 10.1 In the event of any dispute regarding this Plan, the participant, or following the participant's death, his or her beneficiary (collectively referred to in this section as "Claimant") shall have the right to select arbitration. This right shall be solely that of the Claimant, and the Claimant may decide whether or not to arbitrate in his or her discretion. The "right to select arbitration" does not impose on the Claimant a requirement to submit a dispute for arbitration. The Claimant may, in lieu of arbitration, bring an action in appropriate civil court. The Claimant retains the right to select arbitration, even if a civil action (including, without limitation, an action for declaratory relief) is brought by Beckman Coulter prior to the commencement of arbitration. If arbitration is selected by the Claimant after a civil action concerning the Claimant's dispute has been brought by a person other than the Claimant, Beckman Coulter and the Claimant shall take such actions as are necessary or appropriate, including dismissal of the civil action, so that the arbitration can be timely heard. Once arbitration is commenced, it may not be discontinued without the unanimous consent of all parties to the arbitration. During the lifetime of the participant only he or she can use the arbitration procedure set forth in this section. 13 10.2 Any claim for arbitration may be submitted as follows: any claim under this Plan may be filed in writing with an arbitrator of the Claimant's choice who is selected by the method described in the next four sentences. The first step of the selection shall consist of the Claimant submitting in writing a list of five potential arbitrators to Beckman Coulter. Each of the five arbitrators must be either (i) a member of the National Academy of Arbitrators located in the state of California or (ii) a retired California Superior Court or Appellate Court judge. Within one week after receipt of the list, Beckman Coulter shall select one of the five arbitrators as the arbitrator of the dispute in question. If Beckman Coulter fails to select an arbitrator in a timely manner, the Claimant then shall designate one of the five arbitrators as the arbitrator of the dispute in question. 10.3 The arbitration hearing shall be held within seven days (or as soon thereafter as possible) after the selection of the arbitrator. No continuance of said hearing shall be allowed without the mutual consent of the Claimant and Beckman Coulter. Absence from or non-participation at the hearing by any party shall not prevent the issuance of an award. Hearing procedures that will expedite the hearing may be ordered at the arbitrator's discretion, and the arbitrator may close the hearing in his sole discretion when he or she decides he or she has heard sufficient evidence to justify issuance of an award. 10.4 The arbitrator's award shall be rendered as expeditiously as possible and in no event later than one week after the close of the hearing. In the event the arbitrator finds that the Claimant is entitled to the benefits he or she claimed, the arbitrator shall order Beckman Coulter to pay or deliver such benefits (which may be paid from the Trust), in the amounts and at such time as the arbitrator determines. The award of the arbitrator shall be final and binding on the parties. Beckman Coulter shall thereupon pay or deliver (or the trustee of the Trust shall pay or deliver) to the Claimant immediately the amount that the arbitrator orders to be paid or delivered in the manner described in the award. The award may be enforced in any appropriate court as soon as possible after its rendition. If any action is brought to confirm the award, no appeal shall be taken by any party from any decision rendered in such action. 14 10.5 This Section 10.5 shall apply only after the occurrence of a Change in Control Event. If the arbitrator determines that the Claimant is entitled to the claimed benefits, the arbitrator shall direct Beckman Coulter to pay to the Claimant, and Beckman Coulter agrees to pay to the Claimant in accordance with such order, an amount equal to the Claimant's expenses in pursuing the claim, including attorneys' fees. Such payment shall not be made from the Trust. 11. TAXES Beckman Coulter shall be entitled to withhold applicable federal and/or state and local income taxes from payments made to participants or beneficiaries at the then prevailing withholding tax rates, and shares of Common Stock held for the benefit of the Participant in the Trust may be sold to raise cash to satisfy any withholding requirement. Beckman Coulter is entitled to an income tax deduction in the year deferred amounts, including the adjustment factor, are paid. Directors should consult with their personal tax advisors concerning tax (including any applicable income tax and self-employment tax) consequences of participation in the program. 12. ANNUAL STATEMENTS Each participant will receive an annual statement on the value of their account by February 28 of the following year (statements may be provided more frequently). 13. PLAN AMENDMENT, TERMINATION AND CONSTRUCTION 13.1 Beckman Coulter may amend, modify, suspend or terminate this Plan in whole or in part, except that (i) no amendment, modification, suspension or termination shall have any retroactive effect to reduce any amounts deferred by a director, (ii) Section 5.5 may not be amended, modified or suspended so as to, with respect to any amounts credited to the director as of the date of such amendment, reduce the amount of earnings to be credited, (iii) Sections 8, 9 and 10 may not be amended following a Change in Control Event, and (iii) Section 10 may not be amended with respect to any director or beneficiary following the date the director or beneficiary makes a written demand for arbitration with respect to benefits under this Plan. In the event that this Plan is terminated, the amounts credited to the director's account(s) shall be distributed to the director or, in the event of his or her death, his or her beneficiary in a lump sum within ninety (90) days following the date of Plan termination. 15 13.2 It is the intent of Beckman Coulter that this Plan satisfy and be interpreted in a manner that satisfies the applicable requirements of Rule 16b-3 promulgated under the Securities Exchange Act of 1934 ("Exchange Act") so that elective deferrals will be entitled to the benefits of Rule 16b-3 or other exemptive rules under Section 16 of the Exchange Act and will not be subjected to avoidable liability thereunder. Any contrary interpretation shall be avoided. This restated Plan is hereby adopted by Beckman Coulter, Inc. effective May 1, 2002. BECKMAN COULTER, INC. By: /S/ FIDENCIO M. MARES --------------------------------------------- Fidencio M. Mares Its: VICE PRESIDENT, HUMAN RESOURCES -------------------------------------------- EX-4 9 ex44_mastertrustagmt.txt EXHIBIT 4.4 MASTER TRUST AGREEMENT MASTER TRUST AGREEMENT FOR BECKMAN COULTER, INC.'S EXECUTIVE PLANS THIS MASTER TRUST AGREEMENT ("Master Trust Agreement") is made and entered into as of _MAY 9 __, 2002, between Beckman Coulter, Inc., a Delaware corporation (the "Company"), and T. Rowe Price Trust Company, a Maryland limited purpose trust company (the "Trustee"), to evidence the master trust (the "Trust") to be established, pursuant to those executive deferral plans or other arrangements of the Company listed in Exhibit A (the "Plans") now or hereafter existing that require the establishment of a trust, for the benefit of a select group of management, highly compensated employees and/or Directors who contribute materially to the continued growth, development and business success of the Company. ARTICLE 1NAME, INTENTIONS, IRREVOCABILITY, DEPOSIT AND DEFINITIONS 1.1 NAME. The name of the Trust created by this Agreement (the "Trust") shall be: MASTER TRUST AGREEMENT FOR BECKMAN COULTER, INC.'S EXECUTIVE PLANS 1.2 INTENTIONS. The Company wishes to establish the Trust and to contribute to the Trust assets that shall be held therein, subject to the claims of the Company's creditors in the event of its Insolvency (as defined below) until paid to Participants and their Beneficiaries in such manner and at such times as specified in the Plans. It is the intention of the parties that this Trust shall constitute an unfunded arrangement and shall not affect the status of the Plans as unfunded plans maintained for the purpose of providing supplemental compensation for a select group of management, highly compensated employees and/or Directors for purposes of Title I of ERISA (as defined below). In addition, it is the intention of the Company to make contributions to the Trust to provide it and its Subsidiaries with a source of funds to assist them in the meeting of their liabilities under the Plans. 1.3 IRREVOCABILITY; CREDITOR CLAIMS. The Trust hereby established shall be irrevocable. Except as otherwise provided in Section 7.2, the principal of the Trust, and any earnings thereon, shall be held separate and apart from other funds of the Company and shall be used exclusively for the uses and purposes of the Participants and their Beneficiaries and the general creditors of the Company as herein set forth. The Participants and their Beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. Any rights created under the Plans and this Master Trust Agreement shall be mere unsecured contractual rights of the Participants and their Beneficiaries against the Company. Any assets held by the Trust will be subject to the claims of the Company's general creditors under federal and state law in the event of Insolvency. 1.4 INITIAL DEPOSIT. The Company hereby initially deposits with the Trustee in trust five million dollars ($5,000,000), which shall become the principal of the Trust to be held, administered and disposed of by the Trustee as provided in this Master Trust Agreement. 1.5 ADDITIONAL DEFINITIONS. In addition to the definitions set forth above, for purposes hereof, unless otherwise clearly apparent from the context, the following terms have the following indicated meanings: (a) "Administrator" shall have the meaning set forth in Section 3.6(i) below. (b) "Beneficiary" shall mean one or more persons, trusts, estates or other entities, designated in accordance with a Plan, that are entitled to receive benefits under a Plan upon the death of a Participant. (c) "BFAC" shall mean the Company's Benefits Finance and Administration Committee. (d) "Board" shall mean the board of directors of the Company. (e) "Change in Control Event" shall mean the following and shall be deemed to occur if any of the following events occur: (i) any "person," as such term is used in Sections 13(d) and 14(d) of the Exchange Act, other than an employee benefit plan of Beckman Coulter, Inc.("Beckman Coulter"), or a trustee or other fiduciary holding securities under an employee benefit plan of Beckman Coulter, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Beckman Coulter representing 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities, provided that, no Change in Control Event shall be deemed to occur solely because a corporation (the "seller") owns 15% or more of Beckman Coulter voting securities if such ownership is only a transitory step in a reorganization whereby Beckman Coulter purchases the assets of the seller for Beckman Coulter voting securities and the seller liquidates shortly thereafter; (ii) individuals who, as of the date hereof, constitute the Board of Beckman Coulter (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Beckman Coulter stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of Beckman Coulter, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall be considered as though such person were a member of the Incumbent Board of Beckman Coulter; (iii) the stockholders of Beckman Coulter approve a merger or consolidation with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of Beckman Coulter outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of another entity) more than 85% of the combined voting power of the voting securities of Beckman Coulter or such other entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of Beckman Coulter (or similar transaction) in which no person acquires 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities; or (iv) the stockholders of Beckman Coulter approve a plan of complete liquidation of Beckman Coulter or an agreement for the sale or disposition by Beckman Coulter of all or substantially all of Beckman Coulter's assets. Notwithstanding the preceding sentence, a Change in Control Event shall not be deemed to have occurred if the "person" described in the preceding sentence is an underwriting syndicate which has acquired the ownership of 15% or more of the combined voting power of Beckman Coulter's then outstanding voting securities solely in connection with a public offering of Beckman Coulter's securities. If, after any of the events deemed to constitute a Change in Control Event occurs, the transaction approved by the stockholders does not actually transpire, the Change in Control Event will be retroactively deemed not to have occurred. (f) "Committee" shall mean the Organization and Compensation Committee appointed by the Board to administer this Trust. (g) "Common Stock" shall mean the Common Stock of the Company, and such other securities or property with respect to which Stock Units are designated in accordance with the Plans. (h) "Company" shall mean Beckman Coulter, Inc. If Beckman Coulter, Inc. ceases to exist, then the duties and responsibilities of the Company hereunder shall be fulfilled by its successor, any action which may be taken by the Company hereunder may be taken by its successor (provided, however, that if a Change in Control Event occurs, that any limitation on the powers, duties and responsibilities of the Company shall apply to such successor). (i) "Director" shall mean any member of the board of directors of the Company. (j) "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as it may be amended from time to time. (k) "Insolvent" shall have the meaning set forth in Section 3.7(a) below. (l) "Insolvent Entity" shall have the meaning set forth in Section 3.7(a) below. (m) "Investment Fiduciary" shall have the meaning set forth in Section 3.2(a) below. (n) "IRS" shall mean the Internal Revenue Service. (o) "Participant" shall mean a person who is a participant in one or more of the Plans in accordance with their terms and conditions. (p) "Payment Schedule" shall have the meaning set forth in Section 3.6(b) below. (q) "Plans" shall mean the plans specified in Exhibit A. (r) "Plan Year" shall mean each 12 consecutive month period beginning on January 1. (s) "Subsidiary" shall mean a subsidiary of the Company. (t) "Stock Units" shall have the meaning set forth in the Plans. (u) "Trust Fund" shall mean the assets held by the Trustee pursuant to the terms of this Master Trust Agreement and for the purposes of the Plans. 1.6 GRANTOR TRUST. The Trust is intended to be a "grantor trust," of which the Company is the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and the Trust shall be construed accordingly. ARTICLE 2 GENERAL ADMINISTRATION 2.1 COMMITTEE DIRECTIONS AND ADMINISTRATION BEFORE CHANGE IN CONTROL EVENT. Until a Change in Control Event has occurred, this Section 2.1 shall be effective and the Committee shall direct the Trustee as to the administration of the Trust in accordance with the following provisions: (a) The Committee shall be identified to the Trustee by a copy of the resolution of the Board appointing the Committee. In the absence thereof, the Board shall be the Committee. Persons authorized to give directions to the Trustee on behalf of the Committee shall be identified to the Trustee by written notice from the Committee, and such notice shall contain specimens of the authorized signatures. The Trustee shall be entitled to rely on such written notice as evidence of the identity and authority of the persons appointed until a written cancellation of the appointment, or the written appointment of a successor, is received by the Trustee. ( (b) Directions by the Committee, or its delegate, to the Trustee shall be in writing and signed by the Committee or persons authorized by the Committee, or may be made by such other method as is acceptable to the Trustee. (c) The Trustee may conclusively rely upon directions from the Committee in taking any action with respect to this Master Trust Agreement, including the making of payments from the Trust Fund and the investment of the Trust Fund pursuant to this Master Trust Agreement. The Trustee shall have no liability for actions taken, or for failure to act, on the direction of the Committee. The Trustee shall have no liability for failure to act in the absence of proper written directions. (d) The Trustee may request instructions from the Committee and shall have no duty to act or liability for failure to act if such instructions are not forthcoming from the Committee. If requested instructions are not received within a reasonable time, the Trustee is under no duty to act on its own discretion to carry out the provisions of this Master Trust Agreement in accordance with this Master Trust Agreement and the Plans. 2.2 ADMINISTRATION UPON CHANGE IN CONTROL EVENT. In the event of a Change in Control Event, the authority of the Committee to administer the Trust and direct the Trustee, as set forth in Section 2.1 above, shall cease, and the Trustee shall have complete authority to administer the Trust, except with respect to those matters delegated to an Investment Fiduciary under the terms of this Master Trust Agreement. 2.3 CONTRIBUTIONS. (a) In addition to any contribution required under any Plan, the Company, in its sole discretion, may at any time, or from time to time, make additional deposits of cash or other property acceptable to the Trustee (including, without limitation, Common Stock) in trust with the Trustee to augment the principal to be held, administered and disposed of by the Trustee as provided in this Master Trust Agreement. Neither the Trustee nor any Participant or Beneficiary shall have any right to compel such additional deposits. The Trustee shall have no duty to collect or enforce payment to it of any contributions (that may be required under this Master Trust Agreement or the Plans) or to require that any contributions be made, and shall have no duty to compute any amount to be paid to it nor to determine whether amounts paid comply with the terms of the Plans; (b) Prior to a Change in Control Event, the Company shall be required to make an irrevocable contribution to the Trust equal to the difference (if any) between (i) the anticipated benefit obligations and administrative expenses that are to be paid under the Plans and Trust with respect to benefit obligations accrued up to the Change in Control Event (as determined by the Company in good faith) and (ii) the assets of the Trust Fund as of the Change in Control Event (as determined by the Company in good faith). 2.4 TRUST FUND. The contributions received by the Trustee from the Company shall be held and administered pursuant to the terms of this Master Trust Agreement as a single fund without distinction between income and principal and without liability for the payment of interest thereon except as expressly provided in this Master Trust Agreement. During the term of this Trust, all income received by the Trust, net of expenses and taxes, shall be accumulated and reinvested. ARTICLE 3 POWERS AND DUTIES OF TRUSTEE 3.1 INVESTMENT DIRECTIONS. Except as provided in this Section and Section 3.2 below, the Committee shall provide the Trustee with all investment instructions. The Trustee shall neither affect nor change investments of the Trust Fund, except as directed in writing by the Committee or after a Change in Control Event, the Investment Fiduciary, and shall have no right, duty or responsibility to recommend investments or investment changes. The Trustee shall have no responsibility for compliance with any securities laws that may apply to any Common Stock held in the Trust Fund; such obligation shall remain with the Company. 3.2 INVESTMENT UPON CHANGE IN CONTROL EVENT. (a) In the event of a Change in Control Event, the authority of the Committee to direct investments of the Trust Fund shall cease. Upon and after the occurrence of a Change in Control Event, the authority to direct the investments of the Trust Fund shall rest solely with an independent third party investment fiduciary (the "Investment Fiduciary") selected and hired by the individuals who, immediately prior to such event, constituted the BFAC (the "Ex-BFAC"). If the Ex-BFAC, acting as a body, does not select and hire the Investment Fiduciary within a reasonable time (not to exceed sixty days) following the Change in Control Event, any individual who was a member of the BFAC immediately prior to the Change in Control Event shall select and hire the Investment Fiduciary, and if more than one such individual purports to select and hire an Investment Fiduciary, the persons so selected and hired shall designate one of them as the Investment Fiduciary. If neither the Ex-BFAC nor any member thereof selects and hires the Investment Fiduciary, the Company shall perform all duties of the Investment Fiduciary after a Change in Control Event. Subject to the provisions of this section 3.2, the Investment Fiduciary shall have the discretionary power to direct the investment of all Trust Fund assets and select or remove any investment manager or custodial firm for the assets of the Trust Fund. Upon and after the occurrence of a Change in Control Event, the Company must: (1) pay all reasonable administrative expenses and fees of the Investment Fiduciary; (2) indemnify the Investment Fiduciary against any costs, expenses and liabilities including, without limitation, attorneys' fees and expenses arising in connection with the performance of the Investment Fiduciary hereunder, except with respect to matters resulting from the gross negligence or willful misconduct of the Investment Fiduciary or its employees or agents; and (3) supply full and timely information to the Investment Fiduciary on all matters relating to the assets of the Plan, the Trust and such other pertinent information as the Investment Fiduciary may reasonably require. Upon and after a Change in Control Event, the Investment Fiduciary may be terminated (and a replacement appointed) only by the Ex-BFAC. Upon and after a Change in Control Event, the Investment Fiduciary may not be terminated by the Company. The BFAC shall notify the Trustee in writing when a Change in Control Event has occurred. The Trustee has no duty to inquire whether a Change in Control Event has occurred and may rely on notification by the BFAC of a Change in Control Event; provided, however, that if any officer, former officer, director or former director of the Company or any Subsidiary (other than the president of the Company), or any Participant notifies the Trustee that there has been or there may be a Change in Control Event, the Trustee shall have the duty to satisfy itself as to whether a Change in Control Event has in fact occurred. The Trustee is authorized to hire accountants and other experts it deems necessary to make a determination regarding Change in Control Event, the costs and expenses of which shall be allowed as administrative expenses of the Trust. The Company and the Subsidiaries shall indemnify and hold harmless the Trustee for any damages or costs (including attorneys' fees) that may be incurred because of reliance on the BFAC's notice or lack thereof. (b) Notwithstanding Subsection (a), to the extent Participant's benefits under the Plan are denominated as Stock Units, the Investment Fiduciary shall invest the portion of the Trust Fund so denominated in Common Stock. 3.3 MANAGEMENT OF INVESTMENTS. Subject to Sections 3.1 and 3.2 above and Section 3.4 below, the Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Participants or their Beneficiaries. Subject to Sections 3.1 and 3.2 above and Section 3.4 below, the Trustee shall have full power and authority to invest and reinvest the Trust Fund as directed in any investment permitted by law, including, without limiting the generality of the foregoing, the power: (a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, convertible preferred stock, mutual funds (including those which have an investment management or other agreement with an affiliate of the Trustee), bonds, debentures, convertible debentures and bonds, notes, time certificates of deposit, other evidences of indebtedness, other securities, policies of life insurance, annuity contracts, guaranteed investment contracts, bank investment contracts and synthetic investment contracts; (b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any State; (c) To hold, manage, and control all property forming part of the Trust Fund and to sell, convey, transfer, exchange, and otherwise dispose of the same; (d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution, for any purpose; to participate in voting trusts, pooling agreements, reorganizations, consolidations, mergers and liquidations, and in connection therewith to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this instrument relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers; (e) To settle, compromise or submit to arbitration any claims, debt or damages due or owning to or from the Trust; the Trustee may also commence or defend suits or legal proceedings to protect any interest of the Trust, and may represent the Trust in all suits or legal proceedings in any court or before any other body or tribunal; (f) To hold in cash, without liability for interest, a portion of the Trust Fund pending receipt of clear and proper investment directions, pending receipt of a contribution amount which is necessary to carry out investment directions or pending the settlement of distribution or other payments from the Trust Fund; (g) To employ such agents including custodians and counsel as may be reasonably necessary and to pay them reasonable compensation; to settle, compromise or abandon all claims and demands in favor of or against the Trust assets; (h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee, or in the name of its nominee(s) or other agents, or in such form that title will pass by delivery; (i) To exercise all of the further rights, powers, options and privileges granted, provided for, or vested in trustees generally under the laws of the State whose laws are applicable to this Master Trust Agreement, as provided in Section 8.6 below, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto; (j) To lend certificates representing stocks, bonds, or other securities to any brokerage or other firm selected by the Trustee; (k) To institute, compromise and defend actions and proceedings; to pay or contest any claim; to settle a claim by or against the Trustee by compromise, arbitration, or otherwise; to release in whole or in part, any claim belonging to the Trust to the extent the claim is uncollectible; (l) To use securities depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee; (m) To generally do all acts, whether or not expressly authorized, which the Trustee may deem necessary or desirable for the protection of the Trust. However, nothing in this section shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under the operations of this Master Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Master Trust Agreement or to applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom, within the meaning of section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Internal Revenue Code of 1986, as amended. 3.4 SECURITIES. Prior to a Change in Control Event, voting or other rights in securities shall be exercised by the Committee, and the Trustee shall have no duty to exercise voting or proxy or other rights relating to any investment of the Trust Fund. Following a Change in Control Event, such rights shall be exercised by the Trustee solely as directed by the Investment Fiduciary. 3.5 SUBSTITUTION. Notwithstanding any provision of any Plan or the Trust to the contrary, the Company shall at all times have the power to reacquire the Trust Fund by substituting readily marketable securities and/or cash of an equivalent value and such other property shall, following such substitution, constitute the Trust Fund. Notwithstanding the foregoing, after a Change in Control Event, any such substitution shall be subject to the direction of the Investment Fiduciary. 3.6 DISTRIBUTIONS. (a) The establishment of the Trust and the payment or delivery to the Trustee of money or other property shall not vest in any Participant or Beneficiary any right, title, or interest in and to any assets of the Trust. To the extent that any Participant or Beneficiary acquires the right to receive payments under any of the Plans, such right shall be no greater than the right of an unsecured general creditor of the Company and such Participant or Beneficiary shall have only the unsecured promise of the Company that such payments shall be made. (b) Concurrent with the establishment of this Trust, the Company or its designated recordkeeper shall deliver to the Trustee a schedule (the "Payment Schedule") that indicates the amounts payable in respect of each Participant (and his or her Beneficiaries) on a Plan by Plan basis, provides a formula or formulas or other instructions acceptable to the Trustee for determining the amounts so payable, specifies the form in which such amount is to be paid (as provided for or available under the applicable Plans), and the time of commencement for payment of such amounts. The Payment Schedule shall be updated annually and upon a Change in Control Event and from time to time as is necessary thereafter. Except as otherwise provided herein, prior to a Change in Control Event, the Trustee shall make payments to the Participants and their Beneficiaries in accordance with such Payment Schedule. Despite the foregoing, after a Change in Control Event, the Trustee shall make payments in accordance with the terms and provisions of each of the Plans and related plan agreements. Notwithstanding the foregoing, prior to or following a Change in Control Event, the Trustee shall make payments to Participants and their Beneficiaries in accordance with any arbitrator's awards issued pursuant to the Plans' arbitration provisions. The Trustee, at the direction of the Committee or, after a Change in Control Event, on its own volition, shall make any distribution required to be made by it hereunder by delivering: (i) Common Stock to the extent the benefit is denominated in Stock Units; or (ii) To the extent benefits are not denominated in Stock Units, its check payable to the person to whom such distribution is to be made. (c) If the principal of the Trust, and any earnings thereon, are not sufficient, determined on a Plan-by-Plan basis, to make payments of benefits in accordance with the terms of the Plans, the Company shall make the balance of each such payment as it falls due. The Trustee shall notify the Company when principal and earnings are not sufficient. To the extent that the total Trust assets available to make benefit payments to Participants or Beneficiaries who are currently entitled to payment are less than the liabilities of the Plans, the foregoing described distributions will be limited to a Participant's share of the Trust Fund, determined by allocating any remaining assets (less any expenses or costs due under Sections 3.8 and 3.9 of this Master Trust Agreement) to the Participant based on the ratio of the Participant's benefit obligations under the Plans to the total benefit obligations under the Plans. (d) The Company may make payment of benefits directly to Participants or their Beneficiaries as they become due under the terms of the Plans. The Company shall notify the Trustee of their decisions to make payment of benefits directly prior to the time amounts are payable to Participants or their Beneficiaries. (e) Notwithstanding anything contained in this Master Trust Agreement to the contrary, if at any time the Trust is finally determined by the IRS not to be a "grantor trust" with the result that the income of the Trust Fund is not treated as income of the Company pursuant to Sections 671 through 679 of the Internal Revenue Code of 1986, as amended, or if a tax is finally determined by the IRS to be payable by one or more Participants or Beneficiaries with respect to any interest in the Plans or the Trust Fund prior to payment of such interest to any such Participant or Beneficiary, the Committee shall immediately determine each Participant's share of the Trust Fund in accordance with the Plans, and the Trustee shall immediately distribute such share in a lump sum to each Participant or Beneficiary entitled thereto, regardless of whether such Participant's employment has terminated (provided such Participant has a vested interest in his or her accrued benefits under the Plans) and regardless of form and time of payments specified in or pursuant to the Plans in such amounts and in the manner instructed by the Committee. Any remaining assets (less any expenses or costs due under Sections 3.8 and 3.9 of this Master Trust Agreement) shall then be paid by the Trustee to the Company in such amounts, and in the manner instructed by the Committee. If the value of the Trust Fund is less than the benefit obligations under the Plans, the foregoing described distributions will be limited to a Participant's share of the Trust Fund, determined by allocating assets to the Participant based on the ratio of the Participant's benefit obligations under the Plans to the total benefit obligations under the Plans. Prior to a Change in Control Event, the Trustee shall rely solely on the directions of the Committee with respect to the occurrence of the foregoing events and the resulting distributions to be made, and the Trustee shall not be responsible for any failure to act in the absence of such direction. (f) The Trustee shall make provision for the reporting and withholding of any federal or state income taxes that may be required to be withheld with respect to the payment of benefits pursuant to the terms of the Plans and shall pay amounts withheld to the appropriate taxing authorities or determine that such amounts have been reported, withheld and paid by the Company. (g) Prior to a Change in Control Event, payments by the Trustee shall be delivered or mailed to addresses supplied by the Committee and the Trustee's obligation to make such payments shall be satisfied upon such delivery or mailing. Prior to a Change in Control Event the Trustee shall have no obligation to determine the identity of persons entitled to benefits or their mailing addresses. After a Change in Control Event, the Trustee shall have such obligations. (h) Prior to a Change in Control Event, the entitlement of a Participant or his or her Beneficiaries to benefits under the Plans shall be determined by the Committee or such party as they shall designate under the Plans, and any claim for such benefits shall be considered and reviewed under the procedures set out in the Plans. (i) Notwithstanding Section 3.6(h), upon and after the occurrence of a Change in Control Event, the Plan shall be administered by an independent third party administrator (the "Administrator") selected and hired by the Trustee and approved by the Ex-BFAC. The Administrator shall have the discretionary power to determine all questions arising in connection with the administration of the Plan and the interpretation of the Plan and Trust including, but not limited to benefit entitlement determinations; provided, however, upon and after the occurrence of a Change in Control Event, the Administrator shall have no power to direct the investment of Plan or Trust assets or select any investment manager or custodial firm for the Plan or Trust. Upon and after the occurrence of a Change in Control Event, the Company must: (1) pay all reasonable administrative expenses and fees of the Administrator; (2) indemnify the Administrator against any costs, expenses and liabilities including, without limitation, attorney's fees and expenses arising in connection with the performance of the Administrator hereunder, except with respect to matters resulting from the gross negligence or willful misconduct of the Administrator or its employees or agents; and (3) supply full and timely information to the Administrator on all matters relating to the Plan, the Trust, the Participants and their Beneficiaries, the account balances of the Participants, the date of circumstances of the retirement, disability, death or termination of employment of the Participants, and such other pertinent information as the Administrator may reasonably require. Upon and after a Change in Control Event, the Administrator may be terminated (and a replacement appointed) by the Trustee only with the approval of the Ex-BFAC. Upon and after a Change in Control Event, the Administrator may not be terminated by the Company. 3.7 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS ON INSOLVENCY. (a) The Trustee shall cease payment of benefits to Participants and their Beneficiaries if the Company is Insolvent (the "Insolvent Entity"). The Insolvent Entity shall be considered "Insolvent" for purposes of this Master Trust Agreement if: (i) the Insolvent Entity is unable to pay its debts as they become due, or (ii) the Insolvent Entity is subject to a pending proceeding as a debtor under the United States Bankruptcy Code. (b) At all times during the continuance of this Trust, as provided in Section 1.3 above, the principal and income of the Trust shall be subject to claims of the general creditors of the Company under federal and state law as set forth below: (i) The BFAC shall have the duty to inform the Trustee in writing of the Company's Insolvency. If a person claiming to be a creditor of the Company alleges in writing to the Trustee that the Company has become Insolvent, the Trustee shall determine whether the Company is Insolvent solely by obtaining the written notification as described above and, pending such determination, the Trustee shall discontinue payment of benefits to the Insolvent Entity's Participants or their Beneficiaries. Prior to a Change in Control Event, the Trustee may conclusively rely on any determination it receives from the BFAC with respect to the Insolvency of the Company. (ii) Unless the Trustee has received notice from the Company or a person claiming to be a creditor alleging that the Company is Insolvent, the Trustee shall have no duty to inquire whether the Company is Insolvent. The Trustee may in all events rely on such evidence concerning the Company's solvency as may be furnished to the Trustee and that provides the Trustee with a reasonable basis for making a determination concerning the Company's solvency. In this regard, the Trustee may rely upon a letter from the Company's auditors as to whether the Company is able to pay its debts as they become due. The Trustee is authorized to hire accountants or any other experts it deems necessary to make a determination as to the Company's solvency and the Trustee's expenses of such action shall be allowed as a cost of administration of the Trust. (iii) If at any time the Trustee has determined that the Company is Insolvent, the Trustee shall discontinue payments to the Insolvent Entity's Participants or their Beneficiaries, and shall hold the portion of the assets of the Trust allocable to the Insolvent Entity for the benefit of the Insolvent Entity's general creditors. Nothing in this Master Trust Agreement shall in any way diminish any rights of Participants or their Beneficiaries to pursue their rights as general creditors of the Insolvent Entity with respect to benefits due under the Plans or otherwise. (iv) The Trustee shall resume the payment of benefits to Participants or their Beneficiaries in accordance with this Article 3 of this Master Trust Agreement only after the Trustee has determined that the alleged Insolvent Entity is not Insolvent (or is no longer Insolvent). (c) Provided that there are sufficient assets, if the Trustee discontinues the payment of benefits from the Trust pursuant to Section 3.7(b) hereof and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to Participants or their Beneficiaries under the terms of the Plans for the period of such discontinuance, less the aggregate amount of any payments made to Participants or their Beneficiaries by the Company in lieu of the payments provided for hereunder during any such period of discontinuance. Prior to a Change in Control Event, the Committee shall instruct the Trustee as to such amounts, and after a Change in Control Event, the Trustee shall determine such amounts in accordance with the terms and provisions of the Plans and this Master Trust Agreement. 3.8 COSTS OF ADMINISTRATION. The Trustee is authorized to incur reasonable obligations in connection with the administration of the Trust, including attorneys' fees, Administrator fees, Investment Fiduciary fees, other administrative fees, fees of accountants or other experts and appraisal fees. Such obligations shall be paid by the Company. The Trustee is authorized to pay such amounts from the Trust Fund if the Company fails to pay them within 60 days of presentation of a statement of the amounts due. 3.9 TRUSTEE COMPENSATION AND EXPENSES. (a) The Trustee shall be entitled to compensation for its services in the amount of $25,000 annually. This fee may be changed upon mutual agreement of the Trustee and the Company. The Trustee shall be entitled to reimbursement for expenses incurred by it in the performance of its duties as the Trustee, including reasonable fees for legal counsel. The Trustee's compensation and expenses shall be paid by the Company. The Trustee is authorized to withdraw such amounts from the Trust Fund if the Company fails to pay them within 60 days of presentation of a statement of the amounts due. (b) Prior to a Change in Control Event, the Company shall make an irrevocable contribution to the trust in an amount, estimated by the BFAC, sufficient to pay all Trustee's fees and expenses for two years following the Change in Control Event. 3.10 PROFESSIONAL ADVICE. The Company specifically acknowledges that the Trustee and/or the Administrator may find it desirable or expedient to retain legal counsel (who may also be legal counsel for the Company generally) or other professional advisors to advise it in connection with the exercise of any duty under this Master Trust Agreement, including, but not limited to, any matter relating to or following a Change in Control Event or the Insolvency of the Company. The Trustee and/or the Administrator shall be fully protected in acting upon the advice of such legal counsel or advisors. 3.11 PAYMENT ON COURT ORDER. To the extent permitted by law, the Trustee is authorized to make any payments directed by court order in any action in which the Trustee has been named as a party. The Trustee is not obligated to defend actions in which the Trustee is named, but shall notify the Company or Committee of any such action and may tender defense of the action to the Company, Committee, Participant or Beneficiary whose interest is affected. The Trustee may in its discretion defend any action in which the Trustee is named, and any expenses incurred by the Trustee shall be paid by the Company. The Trustee is authorized to pay such amounts from the Trust Fund if the Company fails to pay them within sixty (60) days of presentation of a statement of the amounts due. 3.12 PROTECTIVE PROVISIONS. (a) Notwithstanding any other provision contained in this Master Trust Agreement to the contrary, the Trustee shall have no obligation to (i) determine the existence of any conversion, redemption, exchange, subscription or other right relating to any securities purchased of which notice was given prior to the purchase of such securities and shall have no obligation to exercise any such right unless the Trustee is advised in writing by the Committee both of the existence of the right and the desired exercise thereof within a reasonable time prior to the expiration of the right to exercise, or (ii) advance any funds to the Trust. Furthermore, the Trustee is not a party to the Plan. 3.13 INDEMNIFICATIONS. (a) The Company shall indemnify and hold the Trustee harmless from and against all loss or liability (including expenses and reasonable attorneys' fees) to which it may be subject by reason of its execution of its duties under this Trust, or by reason of any acts taken in good faith in accordance with any directions, or acts omitted in good faith due to absence of directions, from the Company, the Committee, the Administrator, an Investment Fiduciary or a Participant, unless such loss or liability is due to the Trustee's negligence or willful misconduct. The indemnity described herein shall be provided by the Company and the Subsidiaries. (b) In the event that the Trustee is named as a defendant in a lawsuit or proceeding involving one or more of the Plans or the Trust Fund, the Trustee shall be entitled to receive on a current basis the indemnity payments provided for in this Section, provided however that if the final judgment entered in the lawsuit or proceeding holds that the Trustee is guilty of negligence or willful misconduct with respect to the Trust Fund, the Trustee shall be required to refund the indemnity payments that it has received. (c) The Company and the Subsidiaries shall indemnify and hold the Administrator harmless from and against all loss or liability (including expenses and reasonable attorneys' fees) to which it may be subject by reason of its execution of its duties under this Trust, or by reason of any acts taken in good faith in accordance with any directions, or acts omitted in good faith due to absence of directions, from the Company, the Committee or a Participant, unless such loss or liability is due to the Administrator's gross negligence or willful misconduct. The indemnity described herein shall be provided by the Company and the Subsidiaries. (d) In the event that the Administrator is named as a defendant in a lawsuit or proceeding involving one or more of the Plans or the Trust Fund, the Administrator shall be entitled to receive on a current basis the indemnity payments provided for in this Section, provided however that if the final judgment entered in the lawsuit or proceeding holds that the Administrator is guilty of gross negligence or willful misconduct with respect to its duties under the Plans or the Trust, the Administrator shall be required to refund the indemnity payments that it has received. (e) The Company and the Subsidiaries shall indemnify and hold the Investment Fiduciary harmless from and against all loss or liability (including expenses and reasonable attorneys' fees) to which it may be subject by reason of its execution of its duties under this Trust, or by reason of any acts taken in good faith in accordance with any directions, or acts omitted in good faith due to absence of directions, from the Company, the Committee or a Participant, unless such loss or liability is due to the Investment Fiduciary's gross negligence or willful misconduct. The indemnity described herein shall be provided by the Company and the Subsidiaries. (f) In the event that the Investment Fiduciary is named as a defendant in a lawsuit or proceeding involving one or more of the Plans or the Trust Fund, the Investment Fiduciary shall be entitled to receive on a current basis the indemnity payments provided for in this Section, provided however that if the final judgment entered in the lawsuit or proceeding holds that the Investment Fiduciary is guilty of gross negligence or willful misconduct with respect to its duties under the Plans or the Trust, the Investment Fiduciary shall be required to refund the indemnity payments that it has received. (g) All releases and indemnities provided in this Master Trust Agreement shall survive the termination of this Master Trust Agreement. ARTICLE 4 TRUSTEE'S ACCOUNTS 4.1 RECORDS. The Trustee shall maintain accurate records and detailed accounts of all investments, receipts, disbursements and other transactions hereunder. Such records shall be available at all reasonable times for inspection by the Company or their authorized representative. The Trustee, at the direction of the Committee, shall submit to the Committee and to any insurer such valuations, reports or other information as the Committee may reasonably require and, in the absence of fraud or bad faith, the valuation of the Trust Fund by the Trustee shall be conclusive. 4.2 ANNUAL ACCOUNTING; FINAL ACCOUNTING. (a) Within 90 days following the end of each Plan Year and within 90 days after the removal or resignation of the Trustee or the termination of the Trust, the Trustee shall file with the Committee a written account setting forth a description of all receipts, disbursements and other transactions effected by it during the Plan Year or, in the case of removal, resignation or termination, since the close of the previous Plan Year, and listing the assets held in the Trust Fund as of the last day of the Plan Year or other period and indicating their values. Such values shall be either cost or market as directed by the Committee in accordance with the terms of the Plans. (b) The Committee may approve such account either by written notice of approval delivered to the Trustee or by its failure to express written objection to such account delivered to the Trustee within 180 days after the date of which such account was delivered to the Committee. (c) The approval by the Committee of an accounting shall be binding as to all matters embraced in such accounting on all parties to this Master Trust Agreement and on all Participants and Beneficiaries, to the same extent as if such accounting had been settled by a judgment or decree of a court of competent jurisdiction in which the Trustee, the Committee, the Company and all persons having or claiming any interest in any Plan or the Trust Fund were made parties. (d) Despite the foregoing, nothing contained in this Master Trust Agreement shall deprive the Trustee of the right to have an accounting judicially settled, if the Trustee, in the Trustee's sole discretion, desires such a settlement and the costs of any such judicial settlement shall be allowed as a cost of administration of the Trust. 4.3 VALUATION. The assets of the Trust Fund shall be valued at their respective fair market values on the date of valuation, as determined by the Trustee based upon such sources of information as it may deem reliable, including, but not limited to, stock market quotations, statistical valuation services, newspapers of general circulation, financial publications, advice or valuations provided by investment managers, brokerage firms, trustees of common trust funds, sponsors of mutual funds or insurance companies, or any combination of sources. Prior to a Change in Control Event, the Committee shall instruct the Trustee as to the value of assets for which market values are not readily obtainable by the Trustee. If the Committee fails to provide such values, the Trustee may take whatever action it deems reasonable, including employment of attorneys, appraisers, life insurance companies or other professionals, the reasonable expense of which shall be an expense of administration of the Trust Fund and payable by the Company, or from Trust Fund pursuant to Section 3.8 hereof. The Trustee may rely upon information from the Company, the Committee, appraisers or other sources and shall not incur any liability for an inaccurate valuation based in good faith upon such information. 4.4 DELEGATION OF DUTIES. The Company or the Committee, or both, may at any time employ the Trustee as their agent to perform any act, keep any records or accounts and make any computations that are required of the Company or the Committee by this Master Trust Agreement or the Plans. The Trustee may be compensated for such employment and such employment shall not be deemed to be contrary to the Trust. Nothing done by the Trustee as such agent shall change or increase its responsibility or liability as Trustee hereunder. ARTICLE 5 RESIGNATION OR REMOVAL OF TRUSTEE 5.1 RESIGNATION; REMOVAL. The Trustee may resign at any time, either before or after a Change in Control Event, by written notice to the Company, which shall be effective 60 days after receipt of such notice unless the Company and the Trustee agree otherwise. Prior to a Change in Control Event, the Trustee may be removed by the Company on 60 days notice or upon shorter notice accepted by the Trustee. After a Change in Control Event, the Trustee may be removed by a majority vote of the Participants, and if a Participant is dead, his or her Beneficiaries (who collectively shall have one vote among them and shall vote in place of such deceased Participant) on 60 days notice or upon shorter notice accepted by the Trustee. 5.2 SUCCESSOR TRUSTEE. (a) If the Trustee resigns or is removed prior to a Change in Control Event, a successor shall be appointed by the Company in accordance with this Section, by the effective date of the resignation or removal under Section 5.1 above. The successor shall be a bank, trust company, or similar independent third party that is granted corporate trustee powers under state or federal law. After the occurrence of a Change in Control Event, a successor Trustee may not be appointed without the consent of a majority of the Participants. If no such appointment has been made within six months, the Trustee may apply to a court of competent jurisdiction for appointment of a successor or for instructions. All expenses of the Trustee in connection with the proceeding shall be allowed as administrative expenses of the Trust. 5.3 SETTLEMENT OF ACCOUNTS. Upon resignation or removal of the Trustee and appointment of a successor Trustee, all assets shall subsequently be transferred to the successor Trustee. The transfer shall be completed within 180 days after receipt of notice of resignation, removal or transfer, unless the Company extends the time limit. Upon the transfer of the assets, the successor Trustee shall succeed to all of the powers and duties given to the Trustee in this Master Trust Agreement. The resigning or removed Trustee shall render to the Committee an account in the form and manner and at the time prescribed in Section 4.2. The approval of such accounting and discharge of the Trustee shall be as provided in such Section. ARTICLE 6 CONTROVERSIES, LEGAL ACTIONS AND COUNSEL 6.1 CONTROVERSY. If any controversy arises with respect to the Trust, the Trustee shall take action as directed by the Committee or, in the absence of such direction, as it deems advisable, whether by legal proceedings, compromise or otherwise. The Trustee may retain the funds or property involved without liability pending settlement of the controversy. The Trustee shall be under no obligation to take any legal action of whatever nature unless there shall be sufficient property in the Trust to indemnify the Trustee with respect to any expenses or losses to which it may be subjected. 6.2 JOINDER OF PARTIES. In any action or other judicial proceedings affecting the Trust, it shall be necessary to join as parties the Trustee, the Committee and the Company (or their respective successors, if applicable). No Participant or other person shall be entitled to any notice or service of process. Any judgment entered in such a proceeding or action shall be binding on all persons claiming under the Trust. Nothing in this Master Trust Agreement shall be construed as to deprive a Participant or Beneficiary of his or her right to seek adjudication of his or her rights by administrative process or by a court of competent jurisdiction. 6.3 EMPLOYMENT OF COUNSEL. The Trustee may consult with legal counsel (who, prior to a Change in Control Event, but not after a Change in Control Event, may be counsel for the Company) and shall be fully protected with respect to any action taken or omitted by it in good faith pursuant to the advice of counsel. ARTICLE 7 AMENDMENT AND TERMINATION 7.1 AMENDMENT. Subject to the limitations set forth in this Section 7.1, this Master Trust Agreement may be amended by a written instrument executed by the Trustee and the Company. Notwithstanding the foregoing, no such amendment shall conflict with the terms of the Plans or shall make the Trust revocable after it has become irrevocable in accordance with Section 1.3 above. Any amendment, change or modification shall be subject to the following rules: (a) GENERAL RULE. Subject to Sections 7.1(b), (c) and (d) below, this Master Trust Agreement may be amended: (i) By the Company and the Trustee, provided, however, that such amendments would not in any way adversely affect the rights accrued under the Plans in the Trust Fund by any Participant or Beneficiary; and (ii) By the Company and the Trustee as may be necessary to comply with laws which would otherwise render the Trust void, voidable or invalid in whole or in part. (b) LIMITATION. Notwithstanding that an amendment may be permissible under Section 7.1(a) above, this Master Trust Agreement shall not be amended by an amendment that would cause any of the assets of the Trust to be used for or diverted to purposes other than for the exclusive benefit of Participants and Beneficiaries as set forth in the Plans, or payment of expenses of the Trust, except as is required to satisfy the claims of the Company's general creditors. (c) WRITING AND CONSENT. Any amendment to this Master Trust Agreement shall be set forth in writing and signed by the Company and the Trustee. Any amendment may be current, retroactive or prospective, in each case as provided therein. (d) THE COMPANY AND TRUSTEE. In connection with the exercise of the rights under this Section 7.1: (i) Prior to a Change in Control Event, the Trustee shall have no responsibility to determine whether any proposed amendment complies with the terms and conditions set forth in Sections 7.1(a) and (b) above and may conclusively rely on the directions of the Committee with respect thereto. (ii) After a Change in Control Event, the power of the Company to amend this Master Trust Agreement shall cease, and the power to amend that was previously held by the Company shall, instead, be exercised by a majority of the Participants and, if a Participant is dead, his or her Beneficiaries (who collectively shall have one vote among them and shall vote in place of such deceased Participant), with the consent of the Trustee, provided that such amendment otherwise complies with the requirements of Sections 7.1(a), (b) and (c) above. (e) TAXATION. This Master Trust Agreement shall not be amended, altered, changed or modified in a manner that would cause the Participants and/or Beneficiaries under any Plan to be taxed on the benefits under any Plan in a year other than the year of actual receipt of benefits. 7.2 FINAL TERMINATION. The Trust shall not terminate until the date on which Participants and their Beneficiaries are no longer entitled to benefits pursuant to the terms of the Plans and all of the expenses of the Trust have been paid, and on such date the Trust shall terminate. Upon termination of the Trust, any assets remaining in the Trust shall be returned to the Company. Such remaining assets shall be paid by the Trustee to the Company in such amounts and in the manner instructed by the Company, whereupon the Trustee shall be released and discharged from all obligations hereunder. From and after the date of termination and until final distribution of the Trust Fund, the Trustee shall continue to have all of the powers provided herein as are necessary or expedient for the orderly liquidation and distribution of the Trust Fund. ARTICLE 8 MISCELLANEOUS 8.1 DIRECTIONS FOLLOWING CHANGE IN CONTROL EVENT. Despite any other provision of this Master Trust Agreement that may be construed to the contrary, following a Change in Control Event, all powers of the Committee, the Company and the Board to direct the Trustee under this Master Trust Agreement shall terminate and the Trustee shall act on its own discretion to carry out the terms of this Master Trust Agreement in accordance with the Plans and this Master Trust Agreement, except with respect to those matters delegated to an Investment Fiduciary under the terms of this Master Trust Agreement. 8.2 TAXES. The Company shall from time to time pay taxes of any and all kinds whatsoever that at any time are lawfully levied or assessed upon or become payable in respect of the Trust Fund, the income or any property forming a part thereof, or any security transaction pertaining thereto. To the extent that any taxes lawfully levied or assessed upon the Trust Fund are not paid by the Company, the Trustee shall have the power to pay such taxes out of the Trust Fund and shall seek reimbursement from the Company. Prior to making any payment, the Trustee may require such releases or other documents from any lawful taxing authority as it shall deem necessary. The Trustee shall contest the validity of taxes in any manner deemed appropriate by the Company or its counsel, but at the Company's expense, and only if it has received an indemnity bond or other security satisfactory to it to pay any such expenses. Prior to a Change in Control Event, the Trustee (i) shall not be liable for any nonpayment of tax when it distributes an interest hereunder on directions from the Committee, and (ii) shall have no obligation to prepare or file any tax return on behalf of the Trust Fund, any such return being the sole responsibility of the Committee. The Trustee shall cooperate with the Committee in connection with the preparation and filing of any such return. After a Change in Control Event, the Trustee shall have such duties and obligations with respect to the withholding and payment of federal and state income taxes and the preparation and filing of tax returns on behalf of the Trust Fund. 8.3 THIRD PERSONS. All persons dealing with the Trustee are released from inquiring into the decisions or authority of the Trustee and from seeing to the application of any moneys, securities or other property paid or delivered to the Trustee. 8.4 NONASSIGNABILITY; NONALIENATION. Benefits payable to Participants and their Beneficiaries under this Master Trust Agreement may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to attachment, garnishment, levy, execution or other legal or equitable process; provided that this section shall not prohibit the Trustee from delivering Trust Fund assets to the Company after the termination of the trust, pursuant to Section 7.2 hereof or to the general creditors of an Insolvent Entity pursuant to Section 3.7 hereof. 8.5 THE PLANS. The Trust and the Plans are parts of a single, integrated employee benefit plan system and shall be construed together. In the event of any conflict between the terms of this Master Trust Agreement and the agreements that constitute the Plans, such conflict shall be resolved in favor of this Master Trust Agreement. 8.6 APPLICABLE LAW. Except to the extent, if any, preempted by ERISA, this Master Trust Agreement shall be governed by and construed in accordance with the internal laws of the State of Maryland. Any provision of this Master Trust Agreement prohibited by law shall be ineffective to the extent of any such prohibition, without invalidating the remaining provisions hereof. 8.7 NOTICES AND DIRECTIONS. Whenever a notice or direction is given by the Committee to the Trustee, it shall be in the form required by Section 2.1. Actions by the Company shall be by the Board or a duly authorized officer, with such actions certified to the Trustee by an appropriately certified copy of the action taken. The Trustee shall be protected in acting upon any such notice, resolution, order, certificate or other communication believed by it to be genuine and to have been signed by the proper party or parties. 8.8 SUCCESSORS AND ASSIGNS. This Master Trust Agreement shall be binding upon and inure to the benefit of the Company and the Trustee and their respective successors and assigns. 8.9 GENDER AND NUMBER. Words used in the masculine shall apply to the feminine where applicable, and when the context requires, the plural shall be read as the singular and the singular as the plural. 8.10 HEADINGS. Headings in this Master Trust Agreement are inserted for convenience of reference only and any conflict between such headings and the text shall be resolved in favor of the text. 8.11 COUNTERPARTS. This Master Trust Agreement may be executed in an original and any number of counterparts, each of which shall be deemed to be an original of one and the same instrument. 8.12 BENEFICIAL INTEREST. The Company and the Subsidiaries are the true beneficiaries hereunder in that the payment of benefits, directly or indirectly to or for a Participant or Beneficiary by the Trustee, is in satisfaction of the Company's liability therefor under the Plans. Nothing in this Master Trust Agreement shall establish any beneficial interest in any person other than the Company. 8.13 THE TRUST AND PLANS. This Trust, the Plans and each Participant's Plan Agreement are part of and constitute a single, integrated employee benefit plan and trust, shall be construed together as the entire agreement between the Company, the Trustee, the Participants and the Beneficiaries with regard to the subject matter thereof, and shall supersede all previous negotiations, agreements and commitments with respect thereto. 8.14 EFFECTIVE DATE. The effective date of this Master Trust Agreement shall be MAY 9, 2002. IN WITNESS WHEREOF the Company and the Trustee have signed this Master Trust Agreement as of the date first written above. TRUSTEE: THE COMPANY: - ------- ----------- T. Rowe Price Trust Company Beckman Coulter, Inc., a Delaware corporation, By: _/S/ BARBARA J. WEIR_______________ By: __/S/ FIDENCIO M. MARES______ Title: _VICE PRESIDENT_________________ Title: VICE PRESIDENT, HUMAN RESOURCES and Corporate Communications EXHIBIT A PLANS COVERED BY THE MASTER TRUST AGREEMENT 1. Beckman Coulter, Inc. Executive Deferred Compensation Plan 2. Beckman Coulter, Inc. Executive Restoration Plan 3. Beckman Coulter, Inc. Deferred Directors' Fee Program -----END PRIVACY-ENHANCED MESSAGE-----