S-8 1 s8_form.txt BECKMAN-COULTER INC - FORM S-8 As filed with the Securities and Exchange Commission on April 14, 2004 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. 2004 Long-Term Performance Plan (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, 6,500,000 $54.98(3) $357,370,000(3) $45,279(3) par value shares(1)(2) $0.10 per share ------------------------------------------------------------------------ (1)This Registration Statement covers, in addition to the number of shares of Beckman Coulter, Inc., a Delaware corporation (the "Company"), common stock, par value $0.10 per share (the "Common Stock"), stated above, options and other rights to purchase or acquire the shares of Common Stock covered by the Prospectus and, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities Act"), an additional indeterminate number of shares, options and rights that may be offered or issued pursuant to the Beckman Coulter, Inc. 2004 Long-Term Performance Plan (the "Plan") as a result of one or more adjustments under the Plan to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions. (2)Each share is accompanied by a preferred stock purchase right pursuant to a Stockholder Protection Rights Agreement between the Company 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 April 8, 2004, as reported on the New York Stock Exchange. 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 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, 2003, filed with the Commission on February 13, 2004 (Commission File No. 001-10109); (b) The Company's Current Report on Form 8-K filed with the Commission on March 19, 2004 (Commission File No. 001-10109); (c) The description of the 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 (Commission File No. 001-10109), 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 its Registration Statement on Form 8-A, filed with the Commission on February 9, 1999 (which incorporates such description from the Company's Current Report on Form 8-K filed with the Commission on February 8, 1999) (Commission File No. 001-10109), 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 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 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 issuance of the Common Stock registered hereby is passed on for the Company by William H. May. Mr. May is the Vice President, General Counsel and Secretary of the Company, is compensated by the Company as an employee, owns 25,286 shares of Common Stock and options and other awards to acquire up to an additional 189,422 shares of Common Stock, and is eligible to participate in the Plan. 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 Company 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 April 1, 2004. BECKMAN COULTER, INC. By: /S/ JOHN P. WAREHAM -------------------------------- John P. Wareham Its: Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints John P. Wareham. James T. Glover, and Fidencio M. Mares, and each of them, acting individually and without the other, as his or her true and lawful attorney-in-fact and agent, with full power 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, exhibits thereto and other documents in connection therewith) 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, and each of them individually, 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 either of them individually, or their 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 by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE --------------------- ------------------------------- --------------- /s/ JOHN P. WAREHAM Chairman of the Board April 1, 2004 ------------------- and Chief Executive Officer John P. Wareham (Principal Executive Officer) /s/ James T. Glover Vice President, Chief April 1, 2004 ------------------ Financial Officer and James T. Glover Chief Accounting Officer (Principal Financial and Accounting Officer) /s/ Hugh K. Coble Director April 1, 2004 ----------------- Hugh K. Coble /s/ Peter B. Dervan, Ph.D Director April 1, 2004 -------------------- Peter B. Dervan, Ph.D. /s/ Ronald W. Dollens Director April 1, 2004 ------------------- Ronald W. Dollens /s/ Charles A. Haggerty Director April 1, 2004 ---------------------- Charles A. Haggerty /s/ Van B. Honeycutt Director April 1, 2004 --------------------- Van B. Honeycutt /s/William N. Kelley, M.D. Director April 1, 2004 ---------------------- William N. Kelley, M.D. /s/Risa J.Lavizzo-Mourey, M.D. Director April 1, 2004 ------------------------ Risa J. Lavizzo-Mourey, M.D. /s/ Betty Woods Director April 1, 2004 ------------------- Betty Woods /s/ Glenn S. Schafer Director April 1, 2004 ------------------- Glenn S. Schafer EXHIBIT INDEX Exhibit Number Description of Exhibit ------- -------------------------------------------------------------- 4 Beckman Coulter, Inc. 2004 Long-Term Performance Plan. (Filed as Appendix B to the Company's Proxy Statement filed with the Commission pursuant to Section 14(a) of the Exchange Act on February 27, 2004 (Commission File No. 001-10109) and incorporated herein by this reference.) 5 Opinion of Company Counsel (opinion re legality). 23.1 Consent of KPMG LLP (consent of independent auditors). 23.2 Consent of Counsel (included in Exhibit 5). 24 Power of Attorney (included in this Registration Statement under "Signatures").