-----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, DmrpLcq70kYqQHwBXidbaoeIu+cQOGgvjzGO4BFzq660Ist7B6Wrp+I0JLjGpg65 dSKfPOXOu0RC4qPSfvQPDA== 0001095811-01-501244.txt : 20010417 0001095811-01-501244.hdr.sgml : 20010417 ACCESSION NUMBER: 0001095811-01-501244 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 12 REFERENCES 429: 333-36426 FILED AS OF DATE: 20010413 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-3 SEC ACT: SEC FILE NUMBER: 333-58968 FILM NUMBER: 1602506 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-3 1 a70593s-3.txt FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 13, 2001 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- BECKMAN COULTER, INC. DELAWARE 95-104-0600 COULTER CORPORATION DELAWARE 59-163-5784 HYBRITECH INCORPORATED CALIFORNIA 33-068-0402 (Exact name of Registrant as (State or other jurisdiction of (I.R.S. Employer specified in its charter) incorporation or organization) Identification Number)
4300 N. HARBOR BOULEVARD FULLERTON, CALIFORNIA 92834-3100 (714) 871-4848 (Address, including ZIP Code, and telephone number, including area code, of Registrant's principal executive offices) ---------------- WILLIAM H. MAY VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY BECKMAN COULTER, INC. 4300 N. HARBOR BOULEVARD FULLERTON, CALIFORNIA 92834-3100 (714) 871-4848 (Name, address, including ZIP code, and telephone number, including area code, of agent for service) COPIES TO: GREGORY M. PETTIGREW, ESQ. Latham & Watkins 633 West Fifth Street, Suite 4000 Los Angeles, California 90071 (213) 485-1234 ---------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT, AS DETERMINED BY THE REGISTRANT. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] 2 If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [X] ----------------
CALCULATION OF REGISTRATION FEE ================================================================================================= PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE OFFERING REGISTRATION SECURITIES TO BE REGISTERED(1) REGISTERED(1)(2) PRICE(2) FEE(3) - ------------------------------------------------------------------------------------------------- Debt Securities, Preferred Stock, $.10 par value, Depositary Shares, Common Stock, $.01 par value, and Warrants of Beckman Coulter, Inc.(4).... $500,000,000 $500,000,000 n/a - ------------------------------------------------------------------------------------------------- Rights to Purchase Participating Preferred Stock, $.10 par value, of Beckman Coulter, Inc.(5)................ -- -- -- - ------------------------------------------------------------------------------------------------- Subsidiary Guarantees of Debt Securities of Beckman Coulter, Inc.(1).. -- -- -- =================================================================================================
(1) Beckman Coulter, Inc. registered an aggregate of $500,000,000 of securities consisting of an indeterminate principal amount or number of debt securities, common stock and/or preferred stock, depositary shares or warrants as Beckman Coulter may from time to time issue at indeterminate prices (in United States dollars or the equivalent thereof in any other currency, composite currency or currency unit), on a registration statement on Form S-3, No. 333-36426, which was declared effective on May 12, 2000 (the "Earlier Registration Statement"). No securities have been sold under the Earlier Registration Statement. Pursuant to Rule 429, the full $500,000,000 of securities registered under the Earlier Registration Statement is being carried forward to this registration statement. This registration statement also registers the issuance of Subsidiary Guarantees to be issued for no additional consideration by Beckman Coulter, Inc.'s direct wholly-owned subsidiaries Coulter Corporation and Hybritech Incorporated (the "Subsidiary Guarantors"). The Subsidiary Guarantees will be guarantees by the Subsidiary Guarantors of Debt Securities of Beckman Coulter, Inc. (2) This amount represents the principal amount of any debt securities issued at their principal amount, the issue price of any debt securities issued at an original issue discount, the issue price of any preferred stock and preferred securities and the amount computed pursuant to Rule 457(c) for any common stock. (3) Beckman Coulter, Inc. paid a registration fee of $105,600 in connection with the registration of $500,000,000 of Securities under the Earlier Registration Statement, so no fee is required with respect to those securities. Pursuant to Rule 457(n), no additional fee is required for the registration of the Subsidiary Guarantees. (4) This registration statement also covers such indeterminate number of securities that may be issued upon exchange for, or upon conversion of, as the case may be, the securities registered hereunder. (5) The Rights are initially carried and traded with the common stock. The value attributable to the Rights, if any, is reflected in the value of the common stock. THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SEC, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ================================================================================ 3 PROSPECTUS $500,000,000 BECKMAN COULTER, INC. DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES, COMMON STOCK AND WARRANTS ---------------- We may offer and sell the securities from time to time in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities we will provide a supplement to this prospectus that contains specific information about the offering and the terms of the securities. The supplement may also add, update or change information contained in this prospectus. You should carefully read this prospectus and any supplement before you invest in any of our securities. We may offer and sell the following securities: - debt securities, which may be senior or subordinated debt securities and which may be guaranteed by certain of our subsidiaries - preferred stock - preferred stock represented by depositary shares - common stock - warrants to purchase debt securities, common stock, preferred stock or depositary shares. ---------------- Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or completeness of this prospectus. Any representation to the contrary is a criminal offense. ---------------- The date of this prospectus is _______, 2001 4 TABLE OF CONTENTS
PAGE ---- ABOUT THIS PROSPECTUS..........................................................1 WHERE YOU CAN FIND MORE INFORMATION............................................1 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE................................2 FORWARD-LOOKING STATEMENTS.....................................................2 BECKMAN COULTER................................................................3 USE OF PROCEEDS................................................................3 RATIO OF EARNINGS TO FIXED CHARGES.............................................3 DESCRIPTION OF SECURITIES......................................................4 DESCRIPTION OF DEBT SECURITIES.................................................4 DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK...............................13 DESCRIPTION OF DEPOSITARY SHARES..............................................17 DESCRIPTION OF WARRANTS.......................................................20 PLAN OF DISTRIBUTION..........................................................22 LEGAL MATTERS.................................................................24 EXPERTS.......................................................................24
i 5 ABOUT THIS PROSPECTUS This prospectus is part of a "shelf" registration statement that we filed with the United States Securities and Exchange Commission, or the "SEC." By using a shelf registration statement, we may sell up to $500,000,000 offering price of any combination of the securities described in this prospectus from time to time and in one or more offerings. This prospectus only provides you with a general description of the securities that we may offer. Each time we sell securities, we will provide a supplement to this prospectus that contains specific information about the terms of the securities. The supplement may also add, update or change information contained in this prospectus. Before purchasing any securities, you should carefully read both this prospectus and any supplement, together with the additional information described under the heading "Where You Can Find More Information." You should rely only on the information contained or incorporated by reference in this prospectus and in any supplement. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and the supplement to this prospectus is accurate as of the dates on their covers. Our business, financial condition, results of operations and prospects may have changed since that date. When we refer to "we," "our" and "us" in this prospectus, we mean Beckman Coulter, Inc., excluding, unless the context otherwise requires or as otherwise expressly stated, our subsidiaries. When we refer to "you" or "yours," we mean the holders of the applicable series of securities. WHERE YOU CAN FIND MORE INFORMATION We file reports, proxy statements and other information with the SEC. Information filed with the SEC by us can be inspected and copied at the Public Reference Room maintained by the SEC and at the Regional Offices of the SEC as follows: Public Reference Room New York Regional Office Chicago Regional Office 450 Fifth Street, N.W. 7 World Trade Center Citicorp Center Room 1024 Suite 1300 500 West Madison Street Washington, D.C. 20549 New York, New York 10048 Suite 1400 Chicago, Illinois 60661-2551 You may also obtain copies of this information by mail from the Public Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. Further information on the operation of the SEC's Public Reference Room in Washington, D.C. can be obtained by calling the SEC at 1-800-SEC-0330. The SEC also maintains a web site that contains reports, proxy statements and other information about issuers, such as us, who file electronically with the SEC. The address of that site is http://www.sec.gov. Our common stock is listed on the New York Stock Exchange (NYSE: BEC), and reports, proxy statements and other information concerning us can also be inspected at the offices of the New York Stock Exchange at 20 Broad Street, New York, New York 10005. We have a web site whose address is http://www.beckmancoulter.com. The information on our web site, however, is not, and should not be deemed to be, a part of this prospectus. This prospectus is part of a registration statement that we filed with the SEC. The full registration statement may be obtained from the SEC or us, as indicated below. Forms of the indentures and other documents establishing the terms of the offered securities are filed as exhibits to the registration statement. 6 Statements in this prospectus about these documents are summaries. You should refer to the actual documents for a more complete description of the relevant matters. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The rules of the SEC allow us to "incorporate by reference" information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede that information. The prospectus incorporates by reference the documents set forth below that we have previously filed with the SEC. These documents contain important information about us. - Our Annual Report on Form 10-K filed with the SEC on March 13, 2001; and - all documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act after the date of this prospectus and before the termination of the offering. You may request a free copy of any of the documents incorporated by reference in this prospectus (other than exhibits, unless they are specifically incorporated by reference in the documents) by writing or telephoning us at the following address: Investor Relations Beckman Coulter, Inc. P.O. Box 3100 4300 N. Harbor Boulevard Fullerton, California 92834-3100 (714) 773-7620 FORWARD-LOOKING STATEMENTS This prospectus, including the documents that we incorporate by reference, contains "forward-looking statements" within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Such statements are indicated by words or phrases such as "anticipate," "estimate," "plans," "projects," "continuing," "ongoing," "expects," "management believes," "we believe," "we intend" and similar words or phrases. We have based these forward-looking statements on our current expectations and projections about future events. These forward-looking statements are subject to risks, uncertainties, and assumptions about us and our subsidiaries, including, among other things, factors discussed in our filings with the SEC and the following: - the effect of economic, credit and capital market conditions in general and on companies engaged in the clinical diagnostic and life science research markets in particular; - the impact of competition; - changes in laws or regulations, third party relations and approvals and decisions of courts, regulators and governmental bodies; and - changes in customer demand. Consequently, actual events and results may vary significantly from those included in or contemplated or implied by such statements. 2 7 BECKMAN COULTER Beckman Coulter simplifies and automates laboratory processes used in all phases of the battle against disease. We design, manufacture, and market systems which consist of instruments, chemistries, software, and supplies that meet a variety of laboratory needs. Our products are used in a range of applications, from instruments used for pioneering medical research, clinical trials and drug discovery to diagnostic tools found in hospitals and physicians' offices. We compete in market segments that totaled approximately $31 billion in 1999 annual sales worldwide, and we currently have products which address approximately half of that market. Our product lines include virtually all blood tests routinely performed in hospital laboratories and a range of systems for medical and pharmaceutical research. We offer a wide range of instrument systems and related products, including reagents, consumables, accessories, and support services in both the clinical diagnostics and the life science research segments. We have more than 175,000 systems operating in laboratories around the world, and in 2000 approximately 64% of our revenues came from after-market customer purchases of operating supplies, chemistry kits, and service. We market our products in approximately 130 countries, and approximately 45% of our 2000 revenues were generated outside the United States. The two primary segments which we serve are the clinical diagnostics market and the life science research market. Clinical diagnostics encompasses the detection and monitoring of disease by means of laboratory evaluation and analysis of bodily fluids, cells and other substances from patients. Our clinical diagnostics customers include hospital clinical laboratories, physicians' offices and group practices, and commercial reference laboratories (large central laboratories to which hospitals and physicians refer tests). Life science research is the study of the characteristics, behavior and structure of living organisms and their component systems. Our life science research customers include universities conducting academic research, medical research laboratories, pharmaceutical companies and biotechnology firms. Our principal executive offices are located at 4300 N. Harbor Boulevard, Fullerton, California 92835, and our telephone number is (714) 871-4848. USE OF PROCEEDS We intend to use the net proceeds from the sale of the securities for general corporate purposes, including repaying, redeeming or repurchasing existing debt, and for working capital, capital expenditures and other acquisitions. We may invest funds not required immediately for such purposes in short-term investment grade securities. RATIO OF EARNINGS TO FIXED CHARGES Our ratios of earnings to fixed charges are as follows for the periods indicated:
YEAR ENDED DECEMBER 31, ------------------------------------------------------ 2000 1999 1998 1997 1996 ------ ------ ------ ------ ------ Ratio of earnings to fixed charges 2.9 2.6 1.4 --(*) 5.0
(*) Earnings were insufficient to cover fixed charges for the year ended December 31, 1997 by $251.9 million. We have computed the ratio of earnings to fixed charges by dividing earnings (loss) before income taxes and fixed charges by fixed charges. Fixed charges consist of interest expense and a portion of rent expense deemed representative of the interest factor. 3 8 DESCRIPTION OF SECURITIES The following is a general description of the terms and provisions of the securities we may offer and sell by this prospectus. These summaries are not meant to be a complete description of each security. This prospectus and any accompanying prospectus supplement will contain the material terms and conditions for each security. The prospectus supplement may add, update or change the terms and conditions of the securities as described in this prospectus. DESCRIPTION OF DEBT SECURITIES The following description discusses the general terms and provisions of the debt securities that we may offer by this prospectus. The debt securities may be issued as senior debt securities or subordinated debt securities. The indebtedness represented by the senior debt securities will rank equally with all of our other unsecured and unsubordinated debt. The indebtedness represented by the subordinated debt securities will rank junior and be subordinate in right of payment to the prior payment in full of our senior debt, to the extent and in the manner set forth in the prospectus supplement for the securities. See "--Subordination" below. For more information about the securities offered by us, please refer to: - the indenture between us and Citibank, N.A., as trustee, relating to the issuance of each series of senior debt securities by us; - the indenture ("subordinated indenture") between us and Bank One Trust Company, N.A., as trustee, relating to the issuance of each series of subordinated debt securities by us. Forms of these documents are filed as exhibits to the registration statement. The indentures listed above are sometimes collectively referred to as the "indentures" and individually referred to as an "indenture." The trustee under each indenture is referred to as the "indenture trustee." The indentures are subject to and governed by the Trust Indenture Act of 1939, and may be supplemented or amended from time to time following their execution. Each indenture gives us broad authority to set the particular terms of each series of debt securities, including the right to modify certain of the terms contained in the indenture. The particular terms of a series of debt securities and the extent, if any, to which the particular terms of the issue modify the terms of the indenture will be described in the prospectus supplement relating to the debt securities. Each indenture contains the full legal text of the matters described in this section. Because this section is a summary, it does not describe every aspect of the debt securities or the applicable indenture. This summary is subject to and qualified in its entirety by reference to all the provisions of the applicable indenture, including definitions of terms used in the indenture. We also include references in parentheses to certain sections of the indentures. Whenever we refer to particular sections or defined terms of the indentures in this prospectus or in a prospectus supplement, these sections or defined terms are incorporated by reference herein or in the prospectus supplement. This summary also is subject to and qualified by reference to the description of the particular terms of the debt securities in the applicable prospectus supplement. GENERAL We may issue an unlimited amount of debt securities under each indenture in one or more series. We need not issue all debt securities of one series at the same time and, unless otherwise provided, we may reopen a series, without the consent of the holders of the debt securities of that series, for issuances of additional debt securities of that series. The debt securities will be unsecured obligations. 4 9 Prior to the issuance of each series of debt securities, the terms of the particular securities will be specified in a supplemental indenture (including any pricing supplement) and a board resolution of Beckman Coulter or in one or more officer's certificates of Beckman Coulter pursuant to a supplemental indenture or a board resolution. We refer you to the applicable prospectus supplement for a description of the following terms of the series of debt securities: (a) the title of the debt securities; (b) any limit upon the principal amount of the debt securities; (c) the date or dates on which principal will be payable or how to determine the dates; (d) the rate or rates or method of determination of interest; the date from which interest will accrue; the dates on which interest will be payable, which we refer to as the "interest payment dates;" and any record dates for the interest payable on the interest payment dates; (e) any obligation or option of Beckman Coulter to redeem, purchase or repay debt securities, or any option of the registered holder to require Beckman Coulter to redeem or repurchase debt securities, and the terms and conditions upon which the debt securities will be redeemed, purchased or repaid; (f) the denominations in which the debt securities will be issuable (if other than denominations of $1,000 and any integral multiple thereof); (g) any provision relating to deferral of interest payments; (h) whether the debt securities are to be issued in whole or in part in the form of one or more global debt securities and, if so, the identity of the depositary for the global debt securities; (i) the terms of any guarantees of the debt securities; and (j) any other terms of the debt securities. (See Section 301.) PAYMENT OF DEBT SECURITIES--INTEREST Unless indicated differently in a prospectus supplement, we will pay interest on the debt security on each interest payment date to the person in whose name the debt security is registered as of the close of business on the regular record date relating to the interest payment date. However, if we default in paying interest on a debt security, we will pay defaulted interest in either of the two following ways: (a) We will first propose to the indenture trustee a payment date for the defaulted interest. Next, the indenture trustee will choose a special record date for determining which registered holders are entitled to the payment. The special record date will be between 10 and 15 days before the payment date we propose. Finally, we will pay the defaulted interest on the payment date to the registered holder of the debt security as of the close of business on the special record date. (b) Alternatively, we can propose to the indenture trustee any other lawful manner of payment that is consistent with the requirements of any securities exchange on which the debt securities are listed for trading. If the indenture trustee thinks the proposal is practicable, payment will be made as proposed. (See Section 307.) PAYMENT OF DEBT SECURITIES--PRINCIPAL Unless we indicate differently in a prospectus supplement, we will pay principal of and any premium on the debt securities at stated maturity, upon redemption or otherwise, upon presentation of the debt securities 5 10 at the office of the indenture trustee, as our paying agent. Any other paying agent initially designated for the debt securities of a particular series will be named in the applicable prospectus supplement. In our discretion, we may change the place of payment on the debt securities, and may remove any paying agent and may appoint one or more additional paying agents. (See Section 1002.) FORM; TRANSFERS; EXCHANGES The debt securities will be issued: (a) only in fully registered form; (b) without interest coupons; and (c) unless otherwise specified in a prospectus supplement, in denominations that are integral multiples of $1,000. You may have your debt securities divided into debt securities of smaller denominations (of at least $1,000) or combined into debt securities of larger denominations, as long as the total principal amount is not changed. This is called an "exchange." You may exchange or transfer debt securities at the office of the indenture trustee. The indenture trustee acts as our agent for registering debt securities in the names of holders and transferring debt securities. We may appoint another agent or act as our own agent for this purpose. The entity performing the role of maintaining the list of registered holders is called the "security registrar." It will also perform transfers. In our discretion, we may change the place for registration of transfer of the debt securities and may remove and/or appoint one or more additional security registrars. (See Sections 305 and 1002.) Except as otherwise provided in a prospectus supplement, there will be no service charge for any transfer or exchange of the debt securities, but you may be required to pay a sum sufficient to cover any tax or other governmental charge payable in connection with the transfer or exchange. We may block the transfer or exchange of (a) debt securities during a period of 15 days prior to giving any notice of redemption or (b) any debt security selected for redemption in whole or in part, except the unredeemed portion of any debt security being redeemed in part. (See Section 305.) REDEMPTION We will set forth any terms for the redemption of debt securities in a prospectus supplement. Unless we indicate differently in a prospectus supplement, and except with respect to debt securities redeemable at the option of the registered holder, debt securities will be redeemable upon notice by mail between 30 and 60 days prior to the redemption date. If less than all of the debt securities of any series or any tranche of a series are to be redeemed, the indenture trustee will select the debt securities to be redeemed. In the absence of any provision for selection, the indenture trustee will choose a method of random selection it deems fair and appropriate. (See Sections 1102, 1103 and 1104.) Debt securities will cease to bear interest on the redemption date. We will pay the redemption price and any accrued interest once you surrender the debt security for redemption. (See Section 1105.) If only part of a debt security is redeemed, the indenture trustee will deliver to you a new debt security of the same series for the remaining portion without charge. (See Section 1106.) We may make any redemption conditional upon the receipt by the paying agent, on or prior to the date fixed for redemption, of money sufficient to pay the redemption price. If the paying agent has not received the money by the date fixed for redemption, we will not be required to redeem the debt securities. (See Section 1104.) 6 11 EVENTS OF DEFAULT An "event of default" occurs with respect to debt securities of any series if: (a) we do not pay any interest on any debt securities of the applicable series within 30 days of the due date (following any deferral allowed under the terms of the debt securities and elected by us); (b) we do not pay principal or premium on any debt securities of the applicable series on its due date; (c) we remain in breach of a covenant or warranty (excluding covenants and warranties not applicable to the affected series) of the indenture for 90 days after we receive a written notice of default stating we are in breach and requiring remedy of the breach; the notice must be sent by either the indenture trustee or registered holders of at least 25% of the principal amount of debt securities of the affected series; (d) we file for bankruptcy or other specified events in bankruptcy, insolvency, receivership or reorganization occur; or (e) any other event of default specified in the prospectus supplement occurs. (See Section 501.) No event of default with respect to a series of debt securities necessarily constitutes an event of default with respect to the debt securities of any other series issued under the indenture. REMEDIES Acceleration If an event of default occurs and is continuing with respect to any series of debt securities, then either the indenture trustee or the registered holders of not less than 25% in principal amount of the outstanding debt securities of that series may declare the principal amount of all of the debt securities of that series to be due and payable immediately. (See Section 502.) Rescission of Acceleration After the declaration of acceleration has been made and before the indenture trustee has obtained a judgment or decree for payment of the money due on any series of debt securities, the registered holders of not less than a majority in aggregate principal amount of the outstanding debt securities of that series may rescind and annul the declaration and its consequences, if (a) we pay or deposit with the indenture trustee a sum sufficient to pay (1) all overdue interest; (2) the principal of and any premium which have become due other than by the declaration of acceleration and overdue interest on these amounts; (3) interest on overdue interest to the extent lawful; (4) all amounts due to the indenture trustee under the indenture; and (b) all events of default with respect to the affected series, other than the nonpayment of the principal which has become due solely by the declaration of acceleration, have been cured or waived as provided in the indenture. (See Section 502.) For more information as to waiver of defaults, see "Waiver of Default and of Compliance" below. 7 12 Control by Registered Holders; Limitations Subject to the indenture, if an event of default with respect to the debt securities of any series occurs and is continuing, the registered holders of a majority in principal amount of the outstanding debt securities of that series will have the right to (a) direct the time, method and place of conducting any proceeding for any remedy available to the indenture trustee, or (b) exercise any trust or power conferred on the indenture trustee with respect to the debt securities of the series. If an event of default is continuing with respect to all the series of debt securities, the registered holders of a majority in aggregate principal amount of the outstanding debt securities of all the series, considered as one class, will have the right to make such direction, and not the registered holders of the debt securities of any one of the series. These rights of registered holders to make direction are subject to the following limitations: (a) the registered holders' directions will not conflict with any law or the indenture; and (b) the registered holders' directions may not involve the indenture trustee in personal liability where the indenture trustee believes indemnity is not adequate. The indenture trustee may also take any other action it deems proper which is consistent with the registered holders' direction. (See Sections 512 and 603.) In addition, the indenture provides that no registered holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture for the appointment of a receiver or for any other remedy under the indenture unless: (a) that registered holder has previously given the indenture trustee written notice of a continuing event of default; (b) the registered holders of not less than 25% in aggregate principal amount of the outstanding debt securities of all the series, considered as one class, or, in the case of an event of default of the character specified above in clause (a) or (b) under "Events of Default," that series, have made written request to the indenture trustee to institute proceedings in respect of that event of default and have offered the indenture trustee indemnity satisfactory to it against costs and liabilities incurred in complying with the request; and (c) for 60 days after receipt of the notice, the indenture trustee has failed to institute a proceeding and no direction inconsistent with the request has been given to the indenture trustee during the 60-day period by the registered holders of a majority in aggregate principal amount of outstanding debt securities of all the series, considered as one class, or, in the case of an event of default of the character specified above in clause (a) or (b) under "Events of Default," that series. Furthermore, no registered holder will be entitled to institute any action if and to the extent that the action would disturb or prejudice the rights of other registered holders. (See Sections 507 and 603.) However, each registered holder has an absolute and unconditional right to receive payment when due and to bring a suit to enforce that right. (See Sections 507 and 508.) NOTICE OF DEFAULT The indenture trustee is required to give the registered holders of the debt securities notice of any default under the indenture to the extent required by the Trust Indenture Act, unless the default has been cured or waived; except that in the case of an event of default of the character specified above in clause (c) under 8 13 "Events of Default," no notice shall be given to the registered holders until at least 30 days after the occurrence thereof. (See Section 602.) The Trust Indenture Act currently permits the indenture trustee to withhold notices of default (except for certain payment defaults) if the indenture trustee in good faith determines the withholding of the notice to be in the interests of the registered holders. We will furnish the indenture trustee with an annual statement as to our compliance with the conditions and covenants in the indenture. (See Section 1005.) WAIVER OF DEFAULT AND OF COMPLIANCE The registered holders of a majority in aggregate principal amount of the outstanding debt securities of all affected series (voting as one class) may waive, on behalf of the registered holders of all debt securities of all such series, any past default under the indenture, except a default in the payment of principal, premium or interest, or with respect to compliance with certain provisions of the indenture that cannot be amended without the consent of the registered holder of each outstanding debt security. (See Section 513.) Compliance with some of the covenants in the indenture or otherwise provided with respect to debt securities may be waived by the registered holders of a majority in aggregate principal amount of the affected debt securities, considered as one class. (See Section 1006.) CONSOLIDATION, MERGER AND CONVEYANCE OF ASSETS AS AN ENTIRETY; NO FINANCIAL COVENANTS Subject to the provisions described in the next paragraph, we will preserve our corporate existence. (See Section 1004.) We have agreed not to consolidate with or merge into any other entity and not to convey, transfer or lease our properties and assets substantially as an entirety to any entity, unless: (a) the entity formed by the consolidation or into which we are merged, or the entity which acquires us or which leases our property and assets substantially as an entirety, is an entity organized and existing under the laws of the United States of America or any State of the United States or the District of Columbia, and expressly assumes, by supplemental indenture, the due and punctual payment of the principal, premium and interest on all the outstanding debt securities and the performance of all of our covenants under the indenture, and (b) immediately after giving effect to the transactions, no event of default, and no event which after notice or lapse of time or both would become an event of default, will have occurred and be continuing. (See Section 801.) The indenture contains no financial or other similar restrictive covenants. Any such covenants with respect to any particular series of debt securities will be set forth in the applicable prospectus supplement. MODIFICATION OF INDENTURE Without Registered Holder Consent. Without the consent of any registered holders of debt securities, we and the applicable indenture trustee may enter into one or more supplemental indentures for any of the following purposes: (a) to evidence the succession of another entity to us; or (b) to add one or more covenants or other provisions for the benefit of the registered holders of all or any series or tranche of debt securities, or to surrender any right or power conferred upon us; or (c) to add any additional events of default for all or any series of debt securities; or 9 14 (d) to change or eliminate any provision of the indenture or to add any new provision to the indenture that does not adversely affect the interests of the registered holders; or (e) to provide security for the debt securities of any series; or (f) to establish the form or terms of debt securities of any series or tranche or any debt securities guarantees as permitted by the indenture; or (g) to provide for the issuance of bearer securities; or (h) to evidence and provide for the acceptance of appointment of a separate or successor indenture trustee; or (i) to provide for the procedures required to permit the utilization of a noncertificated system of registration for any series or tranche of debt securities; or (j) to change any place or places where (1) we may pay principal, premium and interest, (2) debt securities may be surrendered for transfer or exchange, or (3) notices and demands to or upon us may be served; or (k) to cure any ambiguity, defect or inconsistency or to make any other changes that do not adversely affect the interests of the registered holders in any material respect. (See Section 901.) If the Trust Indenture Act is amended after the date of the indenture so as to require changes to the indenture or so as to permit changes to, or the elimination of, provisions which, at the date of the indenture or at any time thereafter, were required by the Trust Indenture Act to be contained in the indenture, the indenture will be deemed to have been amended so as to conform to the amendment or to effect the changes or elimination, and Beckman Coulter and the applicable indenture trustee may, without the consent of any registered holders, enter into one or more supplemental indentures to effect or evidence the amendment. With Registered Holder Consent. We and the indenture trustee may, with some exceptions, amend or modify any indenture with the consent of the registered holders of at least a majority in aggregate principal amount of the debt securities of all series affected by the amendment or modification (voting as one class). However, no amendment or modification may, without the consent of the registered holder of each outstanding debt security affected thereby, (a) change the stated maturity of the principal or interest on any debt security (other than pursuant to the terms of the debt security), or reduce the principal amount, interest or premium payable or change the currency in which any debt security is payable, or impair the right to bring suit to enforce any payment; (b) reduce the percentages of registered holders whose consent is required for any supplemental indenture or waiver or reduce the requirements for quorum and voting under the indenture; or (c) modify certain of the provisions in the indenture relating to supplemental indentures and waivers of certain covenants and past defaults. A supplemental indenture which changes or eliminates any provision of the indenture expressly included solely for the benefit of registered holders of debt securities of one or more particular series or tranches will be deemed not to affect the rights under the indenture of the registered holders of debt securities of any other series or tranche. (See Section 902.) 10 15 MISCELLANEOUS The indenture provides that some debt securities, including those for which payment or redemption money has been deposited or set aside in trust, will not be deemed to be "outstanding" in determining whether the registered holders of the requisite principal amount of the outstanding debt securities have given or taken any demand, direction, consent or other action under the indenture as of any date, or are present at a meeting of registered holders for quorum purposes. (See Section 101.) We will be entitled to set any day as a record date for the purpose of determining the registered holders of outstanding debt securities of any series entitled to give or take any demand, direction, consent or other action under the indenture, in the manner and subject to the limitations provided in the indenture. In some circumstances, the indenture trustee also will be entitled to set a record date for action by registered holders. If a record date is set for any action to be taken by registered holders of particular debt securities, the action may be taken only by persons who are registered holders of the respective debt securities on the record date. (See Section 104.) DEFEASANCE AND COVENANT DEFEASANCE The indentures provide, unless the terms of the particular series of debt securities provide otherwise, that we may, upon satisfying several conditions, cause ourselves to be: (a) discharged from our obligations, with some exceptions, with respect to any series of debt securities, which we refer to as "defeasance"; and (b) released from our obligations under specified covenants with respect to any series of debt securities, which we refer to as "covenant defeasance." One condition we must satisfy is the irrevocable deposit with the indenture trustee, in trust, of money and/or government obligations which, through the scheduled payment of principal and interest on those obligations, would provide sufficient moneys to pay the principal of and any premium and interest on those debt securities on the maturity dates of the payments or upon redemption. The indentures permit defeasance with respect to any series of debt securities even if a prior covenant defeasance has occurred with respect to the debt securities of that series. Following a defeasance, payment of the debt securities defeased may not be accelerated because of an event of default. Following a covenant defeasance, payment of the debt securities may not be accelerated by reference to the specified covenants affected by the covenant defeasance. However, if an acceleration were to occur, the realizable value at the acceleration date of the money and government obligations in the defeasance trust could be less than the principal and interest then due on the respective debt securities, since the required deposit in the defeasance trust would be based upon scheduled cash flows rather than market value, which would vary depending upon interest rates and other factors. Under current United States federal income tax law, the defeasance contemplated in the preceding paragraphs would be treated as an exchange of the relevant debt securities in which holders of the debt securities might recognize gain or loss. In addition, the amount, timing and character of amounts that holders would be required after the defeasance to include in income might be different from that which would be includible in the absence of the defeasance. Prospective investors are urged to consult their own tax advisors as to the specific consequences of a defeasance, including the applicability and effect of tax laws other than United States federal income tax laws. Under current United States federal income tax laws, unless accompanied by other changes in the terms of the debt securities, covenant defeasance generally should not be treated as a taxable exchange. 11 16 RESIGNATION AND REMOVAL OF THE INDENTURE TRUSTEE; DEEMED RESIGNATION The indenture trustee may resign at any time by giving written notice to us. The indenture trustee may also be removed by act of the registered holders of a majority in principal amount of the then outstanding debt securities of any series. No resignation or removal of the indenture trustee and no appointment of a successor indenture trustee will become effective until the acceptance of appointment by a successor indenture trustee in accordance with the requirements of the indenture. Under some circumstances, we may appoint a successor indenture trustee and, if the successor accepts, the indenture trustee will be deemed to have resigned. (See Section 610). SUBORDINATION Unless we indicate differently in a prospectus supplement, any subordinated debt securities will be subordinated in the following manner. If our assets are distributed upon our dissolution, winding up, liquidation or reorganization, the payment of the principal of, premium, if any, and interest on any subordinated debt securities will be subordinated, to the extent provided in the subordinated indenture and the applicable supplemental indenture, to the prior payment in full of all senior indebtedness, including senior debt securities. However, our obligation to pay principal, and premium, if any, or interest on the subordinated debt securities will not otherwise be affected. No payment on account of principal, or premium, if any, sinking fund or interest may be made on the subordinated debt securities at any time when there is a default in the payment of principal, premium, if any, sinking fund or interest on senior indebtedness. If, while we are in default on senior indebtedness, any payment is received by the indenture trustee under the subordinated debt security indenture or the holders of any of the subordinated debt securities before we have paid all senior indebtedness in full, the payment or distribution must be paid over to the holders of the unpaid senior indebtedness or applied to the repayment of the unpaid senior indebtedness. Subject to paying the senior indebtedness in full, the holders of the subordinated debt securities will be subrogated to the rights of the holders of the senior indebtedness to the extent that payments are made to the holders of senior indebtedness out of the distributive share of the subordinated debt securities. Due to the subordination, if our assets are distributed upon insolvency, some or all of our general creditors may recover more, ratably, than holders of subordinated debt securities. The subordinated indenture or applicable supplemental indenture may state that its subordination provisions will not apply to money and securities held in trust under the satisfaction and discharge, and the legal defeasance provisions of the subordinated indenture. If this prospectus is being delivered in connection with the offering of a series of subordinated debt securities, the accompanying prospectus supplement or the information incorporated by reference in it will set forth the approximate amount of senior indebtedness outstanding as of a recent date. SUBSIDIARY GUARANTEES The terms and conditions of any subsidiary guarantees of our debt securities being offered will be set forth in a prospectus supplement. The obligations of each subsidiary guarantor under its guarantee will be limited as necessary to seek to prevent that guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable federal, state or foreign law. Unless we indicate differently in a prospectus supplement, the subordination provisions applicable to any subsidiary guarantee of subordinated indebtedness will be substantially similar to the subordination provisions applicable to such subordinated indebtedness as described above under "--Subordination." 12 17 CONVERSION RIGHTS The terms and conditions of any debt securities being offered that are convertible into our common stock will be set forth in a prospectus supplement. These terms will include the conversion price, the conversion period, provisions as to whether conversion will be mandatory, or at the option of the holder or us, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event that the debt securities are redeemed. GOVERNING LAW The indentures and the related debt securities will be governed by and construed in accordance with the laws of the State of New York. DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK The following description of our common stock and preferred stock is only a summary and is qualified in its entirety by reference to our certificate of incorporation and bylaws. Therefore, you should read carefully the more detailed provisions of our Fifth Restated Certificate of Incorporation, our Amended and Restated Bylaws, and our Stockholder Protection Rights Agreement, dated February 4, 1999, between us and First Chicago Trust Company of New York, as rights agent, copies of which are incorporated by reference as exhibits to the registration statement of which this prospectus is a part. GENERAL This prospectus describes certain general terms of our capital stock. For a more detailed description of these securities, we refer you to the applicable provisions of Delaware law and our Fifth Restated Certificate of Incorporation (the "Restated Certificate"). When we offer to sell a particular series of these securities, we will describe the specific terms of the series in a supplement to this prospectus. Accordingly, for a description of the terms of any series of securities, you must refer to both the prospectus supplement relating to that series and the description of the securities set forth in this prospectus. A prospectus supplement may change any of the terms of the securities described in this prospectus. Pursuant to our Restated Certificate, our authorized capital stock consists of 150,000,000 shares of common stock, par value $0.10 per share, and 10,000,000 shares of preferred stock, par value $0.10 per share. At January 15, 2001, we had 59,766,459 shares of common stock outstanding and no shares of preferred stock outstanding. COMMON STOCK Subject to any preferential rights that our board of directors may grant in connection with the future issuance of preferred stock, each holder of common stock is entitled to one vote per share on all matters voted upon by the stockholders. Each holder of common stock is entitled to receive ratably any dividends declared on the common stock by the board of directors from funds legally available for distribution. In the event of our liquidation, dissolution or winding up, after we pay all debts and other liabilities and any liquidation preference on the preferred stock, each holder of common stock would be entitled to share ratably in all of our remaining assets. The common stock has no subscription, redemption, conversion or preemptive rights. All shares of common stock are fully paid and nonassessable. DELAWARE GENERAL CORPORATION LAW SECTION 203 As a corporation organized under the laws of the State of Delaware, we are subject to Section 203 of the General Corporation Law of the State of Delaware (the "DGCL"), which restricts certain business combinations between us and an "interested stockholder" (in general, a stockholder owning 15% or more of 13 18 our outstanding voting stock) or that stockholder's affiliates or associates for a period of three years following the date on which the stockholder becomes an "interested stockholder." The restrictions do not apply if: - prior to an interested stockholder becoming such, our board of directors approves either the business combination or the transaction in which the stockholder becomes an interested stockholder; - upon consummation of the transaction in which the stockholder becomes an interested stockholder, the interested stockholder owns at least 85% of our voting stock outstanding at the time the transaction commenced, subject to certain exceptions; or - on or after the date an interested stockholder becomes such, the business combination is both approved by our board of directors and authorized at an annual or special meeting of our stockholders (and not by written consent) by the affirmative vote of at least 66 2/3% of the outstanding voting stock not owned by the interested stockholder. PREFERRED STOCK Under the Restated Certificate, our board of directors is authorized generally without stockholder approval to issue shares of preferred stock from time to time, in one or more classes or series. Prior to the issuance of shares of each series, the board of directors is required by the DGCL and the Restated Certificate to adopt resolutions and file a certificate of designation with the Secretary of State of the State of Delaware. The certificate of designation fixes for each class or series the designations, powers, preferences, rights, qualifications, limitations and restrictions, including, but not limited to, the following: - the number of shares constituting each class or series; - voting rights; - rights and terms of redemption (including sinking fund provisions); - dividend rights and rates; - dissolution; - terms concerning the distribution of assets; - conversion or exchange terms; - redemption prices; and - liquidation preferences. All shares of preferred stock offered hereby will, when issued, be fully paid and nonassessable and will not have any preemptive or similar rights. Our board of directors could authorize the issuance of shares of preferred stock with terms and conditions which could have the effect of discouraging a takeover or other transaction that might involve a premium price for holders of the shares or which holders might believe to be in their best interests. We will set forth in a prospectus supplement relating to the class or series of preferred stock being offered the following terms: - The title and stated value of the preferred stock; 14 19 - The number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred stock; - The dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation applicable to the preferred stock; - Whether dividends are cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock will accumulate; - The procedures for any auction and remarketing, if any, for the preferred stock; - The provisions for a sinking fund, if any, for the preferred stock; - The provision for redemption, if applicable, of the preferred stock; - Any listing of the preferred stock on any securities exchange; - The terms and conditions, if applicable, upon which the preferred stock will be convertible into common stock, including the conversion price (or manner of calculation) and conversion period; - Voting rights, if any, of the preferred stock; - Whether interests in the preferred stock will be represented by depositary shares; - A discussion of any material and/or special United States Federal income tax considerations applicable to the preferred stock; - The relative ranking and preferences of the preferred stock as to dividend rights and rights upon the liquidation, dissolution or winding up of our affairs; - Any limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the class or series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; and - Any other specific terms, preferences, rights, limitations or restrictions of the preferred stock. RANK Unless we specify otherwise in the applicable prospectus supplement, the preferred stock will rank, with respect to dividends and upon our liquidation, dissolution or winding up: - senior to all classes or series of our common stock and to all of our equity securities ranking junior to the preferred stock; - on a parity with all of our equity securities the terms of which specifically provide that the equity securities rank on a parity with the preferred stock; and - junior to all of our equity securities the terms of which specifically provide that the equity securities rank senior to the preferred stock. The term "equity securities" does not include convertible debt securities. 15 20 PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS On February 4, 1999, our Board of Directors adopted a Stockholder Protection Rights Agreement ("Rights Plan") and declared a dividend distribution of one Right on each outstanding share of our common stock. Stockholders may transfer the Rights with the common stock only until they become exercisable. Generally, the Rights become exercisable only if a person or group (subject to certain exceptions stated in the Rights Plan) acquires 15% or more of the then outstanding shares of common stock or announces a tender offer which would result in ownership by a person or group of 15% or more of the then outstanding shares of common stock. Each Right entitles stockholders to buy one one-hundredth of a share of a new series of participating preferred stock at an exercise price of $200. If we are acquired in a merger or other business combination transaction, each Right entitles its holder to purchase, at the Right's then current price, a number of common shares having a then current market value of twice the Right's exercise price. Following the acquisition by a person or group of beneficial ownership of 15% or more of our common stock (subject to certain exceptions stated in the Rights Plan) and prior to an acquisition of 50% or more of our common stock, our board of directors may exchange the Rights (other than Rights owned by the person or group), in whole or in part, at an exchange ratio described in the Rights Plan. Prior to the acquisition by a person or group of beneficial ownership of 15% or more of our common stock, the Rights are redeemable for $.01 per Right at the option of the board of directors. REGISTRAR AND TRANSFER AGENT EquiServe, First Chicago Trust Division, is the registrar and transfer agent for the common stock. 16 21 DESCRIPTION OF DEPOSITARY SHARES GENERAL We may issue depositary shares, each of which will represent a fractional interest of a share of a particular series of preferred stock, as specified in the applicable prospectus supplement. We will deposit with a depositary (the "preferred stock depositary") shares of preferred stock of each series represented by depositary shares. We will enter into a deposit agreement (each a "deposit agreement") with the preferred stock depositary and holders from time to time of the depositary receipts issued by the preferred stock depositary which evidence the depositary shares ("depositary receipts"). Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the holder's fractional interest in the preferred stock, to all the rights and preferences of the series of the preferred stock represented by the depositary shares (including dividend, voting, conversion, redemption and liquidation rights). Immediately after we issue and deliver the preferred stock to a preferred stock depositary, we will cause the preferred stock depositary to issue the depositary receipts on our behalf. You may obtain copies of the applicable form of deposit agreement and depositary receipt from us upon request. The statements made in this section relating to the deposit agreement and the depositary receipts are summaries of certain anticipated provisions. These summaries are not complete and we may modify them in a prospectus supplement. For more detail we refer you to the deposit agreement itself, which we will file as an exhibit to the registration statement. DIVIDENDS AND OTHER DISTRIBUTIONS The preferred stock depositary will distribute all cash dividends or other cash distributions received in respect of the preferred stock to the record holders of depositary receipts in proportion to the number of the depositary receipts owned by the holders, subject to the obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the preferred stock depositary. In the event of a distribution other than in cash, the preferred stock depositary will distribute property received by it to the record holders of depositary receipts in proportion to the number of the depositary receipts owned by the holders, unless the preferred stock depositary determines that it is not feasible to make the distribution, in which case the preferred stock depositary may, with our approval, sell the property and distribute the net proceeds from the sale to the holders. No distribution will be made in respect of any depositary share that represents any preferred stock converted into other securities. WITHDRAWAL OF STOCK Upon surrender of the depositary receipts at the corporate trust office of the preferred stock depositary (unless we have previously called for redemption or converted into other securities the related depositary shares), the holders will be entitled to delivery at that office of the number of whole or fractional shares of the preferred stock and any money or other property represented by the depositary shares. Holders of depositary receipts will be entitled to receive shares of the related preferred stock as specified in the applicable prospectus supplement, but holders of the shares of preferred stock will not thereafter be entitled to receive depositary shares. REDEMPTION OF DEPOSITARY SHARES Whenever we redeem shares of preferred stock held by the preferred stock depositary, the preferred stock depositary will concurrently redeem the number of depositary shares representing shares of the preferred stock so redeemed, provided we have paid the applicable redemption price for the preferred stock to be redeemed plus an amount equal to any accrued and unpaid dividends to the date fixed for redemption. The 17 22 redemption price per depositary share will be equal to the corresponding proportion of the redemption price and any other amounts per share payable with respect to the preferred stock. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected pro rata (as nearly as may be practicable without creating fractional depositary shares) or by any other equitable method determined by us. From and after the date fixed for redemption: - all dividends in respect of the shares of preferred stock called for redemption will cease to accrue; - the depositary shares called for redemption will no longer be deemed to be outstanding; and - all rights of the holders of the depositary receipts evidencing the depositary shares called for redemption will cease, except the right to receive any moneys payable upon the redemption and any money or other property to which the holders of the depositary receipts were entitled upon redemption and surrender to the preferred stock depositary. VOTING OF THE PREFERRED STOCK Upon receipt of notice of any meeting at which the holders of the preferred stock are entitled to vote, the preferred stock depositary will mail the information contained in the notice of meeting to the record holders of the depositary receipts. Each record holder of these depositary receipts on the record date (which will be the same date as the record date for the preferred stock) will be entitled to instruct the preferred stock depositary as to the exercise of the voting rights pertaining to the amount of preferred stock represented by the holder's depositary shares. The preferred stock depositary will vote the amount of preferred stock represented by the depositary shares in accordance with the instructions, and we will agree to take all reasonable action necessary to enable the preferred stock depositary to do so. The preferred stock depositary will abstain from voting the amount of preferred stock represented by the depositary shares for which it does not receive specific instructions from the holders of depositary receipts evidencing the depositary shares. The preferred stock depositary will not be responsible for any failure to carry out any instruction to vote, or for the manner or effect of any vote made, as long as the action or non-action is in good faith and does not result from the preferred stock depositary's negligence or willful misconduct. LIQUIDATION PREFERENCE If we voluntarily or involuntarily liquidate, dissolve or wind up, the holders of each depositary receipt will be entitled to the fraction of the liquidation preference accorded each share of preferred stock represented by the depositary shares, as set forth in the applicable prospectus supplement. CONVERSION OF PREFERRED STOCK The depositary shares, as such, are not convertible into common stock or any of our other securities or property. Nevertheless, if we so specify in the applicable prospectus supplement relating to an offering of depositary shares, holders may surrender depositary receipts to the preferred stock depositary with written instructions to the preferred stock depositary to instruct us to convert the preferred stock represented by the depositary shares into whole shares of common stock, other shares of our preferred stock or other shares of stock. We have agreed that upon receipt of the instructions and any amounts payable, we will convert the depositary shares using the same procedures as those provided for converting preferred stock. If the depositary shares evidenced by a depositary receipt are to be converted in part only, the preferred stock depositary will issue a new depositary receipt(s) for any depositary shares not converted. No fractional shares of common stock will be issued upon conversion, and if the conversion would result in a fractional share being issued, we will pay an amount in cash equal to the value of the fractional interest based upon the closing price of the common stock on the last business day prior to the conversion. 18 23 AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT We may amend the form of depositary receipt and any provision of the deposit agreement at any time by agreement between us and the preferred stock depositary. However, any amendment that materially and adversely alters the rights of the holders of depositary receipts or that would be materially and adversely inconsistent with the rights granted to the holders of the related preferred stock will not be effective unless the holders of at least 66 2/3% of the depositary shares evidenced by the depositary receipts then outstanding approve the amendment. No amendment will impair the right, subject to the exceptions set forth in the depositary agreement, of any holder of depositary receipts to surrender any depositary receipt with instructions to deliver to the holder the related preferred stock and all money and other property, if any, represented by the depositary receipt, except in order to comply with law. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective will be deemed, by continuing to hold the receipt, to consent and agree to the amendment and to be bound by the deposit agreement as amended. We may terminate the deposit agreement upon not less than 30 days' prior written notice to the preferred stock depositary if a majority of each series of preferred stock affected by the termination consents to the termination. Upon termination, the preferred stock depositary will deliver or make available to each holder of depositary receipts, upon surrender of the depositary receipts held by the holder, the number of whole or fractional shares of preferred stock represented by the depositary shares evidenced by the depositary receipts together with any other property held by the preferred stock depositary with respect to the depositary receipt. In addition, the deposit agreement will automatically terminate if: - all outstanding depositary shares have been redeemed; - there has been a final distribution of the related preferred stock in connection with our liquidation, dissolution or winding up and the distribution has been distributed to the holders of depositary receipts evidencing the depositary shares representing the preferred stock; or - each share of the related preferred stock has been converted into our securities which are not represented by depositary shares. CHARGES OF PREFERRED STOCK DEPOSITARY We will pay all transfer and other taxes and governmental charges arising solely from the existence of the deposit agreement. In addition, we will pay the fees and expenses of the preferred stock depositary in connection with the performance of its duties under the deposit agreement. However, holders of depositary receipts will pay the fees and expenses of the preferred stock depositary for any duties requested by the holders to be performed which are outside of those expressly provided for in the deposit agreement. RESIGNATION AND REMOVAL OF DEPOSITARY The preferred stock depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the preferred stock depositary. Any such resignation or removal will take effect upon our appointment of a successor preferred stock depositary. We must appoint a successor preferred stock depositary within 60 days after delivery of the notice of resignation or removal, and any preferred stock depositary must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. MISCELLANEOUS The preferred stock depositary will forward to holders of depositary receipts any reports and communications the preferred stock depositary receives from us relating to the preferred stock. 19 24 We will not be liable, nor will the preferred stock depositary be liable, if we are prevented from or delayed in, by law or any circumstances beyond our control, performing our obligations under the deposit agreement. Our obligations and the obligations of the preferred stock depositary under the deposit agreement will be limited to performing our duties in good faith and without negligence (in the case of any action or inaction in the voting of preferred stock represented by the depositary shares), gross negligence or willful misconduct. We will not be obligated, nor will the preferred stock depositary be obligated, to prosecute or defend any legal proceeding in respect of any depositary receipts, depositary shares or shares of preferred stock represented thereby unless satisfactory indemnity is furnished to us. We may rely, and the preferred stock depositary may rely, on written advice of counsel or accountants, or information provided by persons presenting shares of preferred stock represented thereby for deposit, holders of depositary receipts or other persons we believe in good faith to be competent to give such information, and on documents we believe in good faith to be genuine and signed by a proper party. In the event the preferred stock depositary receives conflicting claims, requests or instructions from holders of depositary receipts, on the one hand, and us, on the other hand, the preferred stock depositary will be entitled to act on such claims, requests or instructions received from us. DESCRIPTION OF WARRANTS We may issue warrants to purchase debt securities ("debt warrants"), preferred stock ("preferred stock warrants"), depositary shares ("depositary shares warrants") or common stock ("common stock warrants," collectively with the debt warrants, the preferred stock warrants and the depositary shares warrants ("warrants")). We may issue warrants independently or together with any other securities we offer pursuant to a prospectus supplement and the warrants may be attached to or separate from the securities. We will issue each series of warrants under a separate warrant agreement that we will enter into with a bank or trust company, as warrant agent. We will set forth additional terms of the warrants and the applicable warrant agreements in the applicable prospectus supplement. DEBT WARRANTS We will describe in the applicable prospectus supplement the terms of the debt warrants being offered, the warrant agreement relating to the debt warrants and the debt warrant certificates representing the debt warrants, including the following: - the title of the debt warrants; - the aggregate number of the debt warrants; - the price or prices at which the debt warrants will be issued; - the designation, aggregate principal amount and terms of the debt securities purchasable upon exercise of the debt warrants, and the procedures and conditions relating to the exercise of the debt warrants; - the designation and terms of any related debt securities with which the debt warrants are issued, and the number of the debt warrants issued with each security; - the date, if any, on and after which the debt warrants and the related debt securities will be separately transferable; - the principal amount of debt securities purchasable upon exercise of each debt warrant, and the price at which the principal amount of the debt securities may be purchased upon exercise; 20 25 - the date on which the right to exercise the debt warrants will commence, and the date on which the right will expire; - the maximum or minimum number of the debt warrants which may be exercised at any time; - a discussion of the material United States Federal income tax considerations applicable to the exercise of the debt warrants; and - any other terms of the debt warrants and terms, procedures and limitations relating to the exercise of the debt warrants. Holders may exchange debt warrant certificates for new debt warrant certificates of different denominations, and may exercise debt warrants at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their debt warrants, holders of debt warrants will not have any of the rights of holders of the securities purchasable upon the exercise and will not be entitled to payments principal, premium or interest on the securities purchasable upon the exercise. OTHER WARRANTS We will describe in the applicable prospectus supplement the terms of the preferred stock warrants, depositary shares warrants and common stock warrants being offered, including the following: - the title of the warrants; - the securities for which the warrants are exercisable; - the price or prices at which the warrants will be issued; - the number of the warrants issued with each share of preferred stock, common stock or depositary share; - any provisions for adjustment of the number or amount of shares of preferred stock, common stock or depositary shares receivable upon exercise of the warrants or the exercise price of the warrants; - if applicable, the date on and after which the warrants and the related preferred stock, common stock or depositary shares will be separately transferable; - if applicable, a discussion of the material United States Federal income tax considerations applicable to the exercise of the warrants; - any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; - the date on which the right to exercise the warrants will commence, and the date on which the right will expire; and - the maximum or minimum number of the warrants which may be exercised at any time. EXERCISE OF WARRANTS Each warrant will entitle the holder of the warrant to purchase for cash at the exercise price set forth in the applicable prospectus supplement the principal amount of debt securities or shares of preferred stock, common stock or depositary shares being offered. Holders may exercise warrants at any time up to the close 21 26 of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants are void. Holders may exercise warrants as set forth in the prospectus supplement relating to the warrants being offered. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the debt securities, depositary shares or shares of preferred stock or common stock purchasable upon the exercise. If less than all of the warrants represented by the warrant certificate are exercised, we will issue a new warrant certificate for the remaining warrants. PLAN OF DISTRIBUTION We may sell the securities described in this prospectus from time to time in one or more transactions: - to purchasers directly; - to underwriters for public offering and sale by them; - through agents; - through dealers; or - through a combination of any of the foregoing methods of sale. We may distribute the securities from time to time in one or more transactions at: - a fixed price or prices, which may be changed; - market prices prevailing at the time of sale; - prices related to such prevailing market prices; or - negotiated prices. DIRECT SALES We may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended, with respect to any resale of the securities. A prospectus supplement will describe the terms of any sale of securities we are offering hereunder. TO UNDERWRITERS The applicable prospectus supplement will name any underwriter involved in a sale of securities. Underwriters may offer and sell securities at a fixed price or prices, which may be changed, or from time to time at market prices or at negotiated prices. Underwriters may be deemed to have received compensation from us from sales of securities in the form of underwriting discounts or commissions and may also receive commissions from purchasers of securities for whom they may act as agent. Underwriters may be involved in any at the market offering of equity securities by or on our behalf. Underwriters may sell securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions (which may be changed from time to time) from the purchasers for whom they may act as agent. 22 27 Unless otherwise provided in a prospectus supplement, the obligations of any underwriters to purchase securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all the securities if any are purchased. THROUGH AGENTS AND DEALERS We will name any agent involved in a sale of securities, as well as any commissions payable by us to such agent, in a prospectus supplement. Unless we indicate differently in the prospectus supplement, any such agent will be acting on a reasonable efforts basis for the period of its appointment. If we utilize a dealer in the sale of the securities being offered pursuant to their prospectus, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. DELAYED DELIVERY CONTRACTS If we so specify in the applicable prospectus supplement, we will authorize underwriters, dealers and agents to solicit offers by certain institutions to purchase the securities pursuant to contracts providing for payment and delivery on future dates. Such contracts will be subject to only those conditions set forth in the applicable prospectus supplement. The underwriters, dealers and agents will not be responsible for the validity or performance of the contracts. We will set forth in the prospectus supplement relating to the contracts the price to be paid for the securities, the commissions payable for solicitation of the contracts and the date in the future for delivery of the securities. GENERAL INFORMATION Underwriters, dealers and agents participating in a sale of the securities may be deemed to be underwriters as defined in the Securities Act, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions, under the Securities Act. We may have agreements with underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities under the Securities Act, and to reimburse them for certain expenses. Underwriters or agents and their associates may be customers of, engage in transactions with or perform services for us or our affiliates in the ordinary course of business. Unless we indicate differently in a prospectus supplement, we will not list the securities on any securities exchange. The securities will be a new issue of securities with no established trading market. Any underwriters that purchase securities for public offering and sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We make no assurance as to the liquidity of or the trading markets for any securities. 23 28 LEGAL MATTERS Latham & Watkins will pass upon the validity of the securities offered hereby for Beckman Coulter. EXPERTS The consolidated financial statements and schedule of Beckman Coulter, Inc. as of December 31, 2000 and 1999, and for each of the years in the three-year period ended December 31, 2000 have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent certified public accountants, incorporated by reference herein upon the authority of said firm as experts in accounting and auditing. 24 29 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION Our estimated expenses in connection with the distribution of the securities being registered are as set forth in the following table: SEC registration fee................. $105,600 Rating agency fees................... 300,000 Fees and expenses of the trustees.... 15,000 Printing expenses.................... 5,000 Legal fees and expenses.............. 100,000 Accounting fees and expenses......... 20,000 Miscellaneous........................ 4,400 -------- Total........................... $550,000 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the General Corporation Law of Delaware (the "DGCL") empowers Beckman Coulter 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 Beckman Coulter, or is or was serving as such with respect to another entity at the request of Beckman Coulter. The DGCL also provides that Beckman Coulter may purchase insurance on behalf of any such director, officer, employee or agent. Section 14 of Beckman Coulter's Fifth Restated Certificate of Incorporation provides that Beckman Coulter 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 Beckman Coulter's Fifth Restated Certificate of Incorporation eliminates the liability of a director of Beckman Coulter to Beckman Coulter or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL. Beckman Coulter 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 16. EXHIBITS (a) Exhibits A list of exhibits filed with this registration statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference. II-1 30 ITEM 17. 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 of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(l)(1) and (a)(l)(2) above do not apply if the registration statement is on Form S-3 or Form S-8 and 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 SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions, described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of 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 their 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. (d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the Act. II-2 31 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fullerton, California, on April 5, 2001. BECKMAN COULTER, INC. By: /s/ John P. Wareham ------------------------------------ John P. Wareham Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Amin I. Khalifa, William H. May and James T. Glover, and each of them, with full power of substitution and full power to act without the other, his true and lawful attorney-in-fact and agents to act for him in his name, place and stead, in any and all capacities, to sign a registration statement on Form S-3 and any or all amendments thereto (including without limitation any post-effective amendments thereto), and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act, and to file each of the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, 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 in order to effectuate the same as fully, to all intents and purposes, as they or he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by each of the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ John P. Wareham Chairman of the Board, President and April 5, 2001 - ----------------------------------- Chief Executive Officer John P. Wareham /s/ Amin I. Khalifa Vice President, Finance and Chief April 5, 2001 - ----------------------------------- Financial Officer (Principal Amin I. Khalifa Financial Officer) /s/ James B. Gray Director/Controller (Principal Accounting April 5, 2001 - ----------------------------------- Officer) James B. Gray
II-3 32
SIGNATURE TITLE DATE --------- ----- ---- Director April __, 2001 - ----------------------------------- Hugh K. Coble /s/ Peter B. Dervan Director April 5, 2001 - ----------------------------------- Peter B. Dervan, Ph.D. /s/ Ronald W. Dollens Director April 9, 2001 - ----------------------------------- Ronald W. Dollens /s/ Charles A. Haggerty Director April 9, 2001 - ----------------------------------- Charles A. Haggerty /s/ Gavin S. Herbert Director April 9, 2001 - ----------------------------------- Gavin S. Herbert /s/ Van B. Honeycutt Director April 9, 2001 - ----------------------------------- Van B. Honeycutt /s/ William N. Kelley Director April 10, 2001 - ----------------------------------- William N. Kelley, M.D. /s/ Risa J. Lavizzo-Mourey Director April 10, 2001 - ----------------------------------- Risa J. Lavizzo-Mourey, M.D. /s/ C. Roderick O'Neil Director April 9, 2001 - ----------------------------------- C. Roderick O'Neil /s/ Betty Woods Director April 9, 2001 - ----------------------------------- Betty Woods
II-4 33 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fullerton, California, on April 12, 2001. HYBRITECH INCORPORATED By: /s/ John P. Wareham ---------------------------------- John P. Wareham President POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Amin I. Khalifa, William H. May and James T. Glover, and each of them, with full power of substitution and full power to act without the other, his true and lawful attorney-in-fact and agents to act for him in his name, place and stead, in any and all capacities, to sign a registration statement on Form S-3 and any or all amendments thereto (including without limitation any post-effective amendments thereto), and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act, and to file each of the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, 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 in order to effectuate the same as fully, to all intents and purposes, as they or he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by each of the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ John P. Wareham President and Director April 12, 2001 - ----------------------------------- John P. Wareham /s/ Amin I. Khalifa Vice President, Finance and Chief April 12, 2001 - ----------------------------------- Financial Officer (Principal Amin I. Khalifa Financial Officer) /s/ James T. Glover Vice President, Treasurer and Director April 12, 2001 - ----------------------------------- (Principal Accounting Officer) James T. Glover /s/ William H. May Director April 12, 2001 - ----------------------------------- William H. May
II-5 34 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fullerton, California, on April 12, 2001. COULTER CORPORATION By: /s/ Edgar E. Vivanco ---------------------------------- Edgar E. Vivanco President POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Amin I. Khalifa, William H. May and James T. Glover, and each of them, with full power of substitution and full power to act without the other, his true and lawful attorney-in-fact and agents to act for him in his name, place and stead, in any and all capacities, to sign a registration statement on Form S-3 and any or all amendments thereto (including without limitation any post-effective amendments thereto), and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act, and to file each of the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, 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 in order to effectuate the same as fully, to all intents and purposes, as they or he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by each of the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Edgar E. Vivanco President April 12, 2001 - ----------------------------------- Edgar E. Vivanco /s/ Eugene L. Babcock Vice President, Finance April 13, 2001 - ----------------------------------- (Principal Financial Officer) Eugene L. Babcock /s/ James T. Glover Vice President, Treasurer and Director April 12, 2001 - ----------------------------------- (Principal Accounting Officer) James T. Glover
II-6 35
SIGNATURE TITLE DATE --------- ----- ---- /s/ John P. Wareham Director April 12, 2001 - ----------------------------------- John P. Wareham /s/ William H. May Director April 12, 2001 - ----------------------------------- William H. May
II-7 36 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION 1.1* Form of Underwriting Agreement. 3.1 Fifth Restated Certificate of Incorporation of Beckman Coulter dated April 24, 2000 (Incorporated by reference to Exhibit 3.1 to the Form S-3 Registration Statement, File No. 333-36426). 3.2 Amended and Restated Bylaws of Beckman Coulter as of November 30, 1994 (Incorporated by reference to Exhibit 3.2 to the Annual Report on Form 10-K for the year ended December 31, 1994, File No. 001-10109). 3.3 Certificate of Incorporation of Coulter Corporation dated November 19, 1975. 3.4 Bylaws of Coulter Corporation as of January 2, 1976. 3.5 Articles of Incorporation of Hybritech Incorporated dated January 10, 1996. 3.6 Bylaws of Hybritech Incorporated as of October 19, 1995. 4.1* Form of Indenture for Senior Debt Securities. 4.2* Form of Indenture for Subordinated Debt Securities. 4.3* Form of Senior Note (included in Exhibit 4.1). 4.4* Form of Subordinated Note (included in Exhibit 4.2). 4.5* Form of Warrant. 4.6* Form of Warrant Agreement. 4.7* Form of Depositary Share. 4.8* Form of Depositary Agreement. 4.9 Stockholder Protection Rights Agreement dated as of February 4, 1999 between Beckman Coulter and First Chicago Trust Company of New York, as rights agent (Incorporated by reference to Exhibit 4 to the Form 8-K filed on February 8, 1999 (File No. 99523266). 4.10 Indenture dated as of March 4, 1998 by and between the Beckman Coulter, The First National Bank of Chicago, as trustee, and Beckman Instruments (Naguabo) Inc., SmithKline Diagnostics, Inc., Hybritech Incorporated, Coulter Leasing Corporation and Coulter Corporation (Incorporated by reference to Exhibit 4.1 to the Form S-4 Registration Statement, File No. 333-50409). 4.11 Specimen Certificate of 7.10% Debentures due March 4, 2003 (Incorporated by reference to Exhibit 4.4 to the Form S-4 Registration Statement, File No. 333-50409). 4.12 Specimen Certificate of 7.45% Debentures due March 4, 2008 (Incorporated by reference to Exhibit 4.6 to the Form S-4 Registration Statement, File No. 333-50409). 4.13 Supplemental Indenture No. 1, dated as of March 6, 1998, between Beckman Instruments, Inc. and The First National Bank of Chicago, as Trustee, to the Senior Indenture dated as of May 15, 1996. 4.14 Supplemental Indenture No. 2, dated as of March 6, 1998, among Beckman Instruments (Naguabo) Inc., Hybritech Incorporated, SmithKline Diagnostics, Inc., Coulter Corporation, Coulter Leasing Corporation, Beckman Instruments, Inc., and The First National Bank of Chicago, as Trustee, to the Senior Indenture dated as of May 15, 1996. 5.1 Opinion of Latham & Watkins. 12.1 Statement regarding the computation of ratio of earnings to fixed charges for the years ended December 31, 2000, 1999, 1998, 1997 and 1996.
37
EXHIBIT NUMBER DESCRIPTION 23.1 Consent of Latham & Watkins (included in Exhibit 5.1). 23.2 Consent of KPMG LLP, Independent Certified Public Accountants. 25.1** Statement of Eligibility of Form T-1 under the Trust Indenture Act of 1939, as amended, of Citibank, N.A., as Trustee under the Indenture for Senior Debt Securities. 25.2** Statement of Eligibility of Form T-1 under the Trust Indenture Act of 1939, as amended, of Bank One Trust Company, N.A., as Trustee under the Indenture for Subordinated Debt Securities.
- ---------- * To be filed by amendment or incorporated by reference in connection with the offering of the securities. ** Filed pursuant to Section 305(b)(2) of the TIA. EX-3.3 2 a70593ex3-3.txt EXHIBIT 3.3 1 EXHIBIT 3.3 CERTIFICATE OF INCORPORATION OF COULTER CORPORATION 1. Name. The name of the corporation is COULTER CORPORATION. 2. Registered Office and Agent. The address of the registered office of the corporation in the State of Delaware is 229 South State Street in the City of Dover, County of Kent. The name of its registered agent at such address is The Prentice-Hall Corporation System, Inc. 3. Purposes. The nature of the corporation's business or the objects or purposes to be conducted or promoted by the corporation are: (a) To purchase or otherwise acquire, own and hold the stock of or other direct or indirect equity participation or investment of any kind whatsoever in any corporation, joint stock company, syndicate, association, firm, trust, partnership, joint venture, company or other like or unlike incorporated or unincorporated business or enterprise and to do every act and thing covered generally by the denomination "holding company" and especially to direct the operations of any such corporation, joint stock company, syndicate, association, firm, trust, partnership, joint venture, company or other like or unlike incorporated or unincorporated 2 -2- business or enterprise through the ownership of stock of or other direct or indirect equity participation or investment therein; to purchase, subscribe for, acquire, own, hold, sell, exchange, assign, transfer, create security interests in, pledge, or otherwise dispose of shares or voting trust certificates for shares of the capital stock, or any bonds, notes, securities, or evidences of indebtedness created by any corporation, joint stock company, syndicate, association, firm, trust, partnership, joint venture, company or other like or unlike incorporated or unincorporated business or enterprise organized under the laws of the State of Delaware or any other state or district or province, country, nation or government and also bonds or evidences of indebtedness of the United States or of any state, district, territory, province, dependency or country, nation or government or subdivision or municipality thereof; to issue in exchange therefor shares of the capital stock, bonds, notes or other obligations of or direct or indirect equity participations or investments in this corporation and to exercise all the rights, powers and privileges of ownership, including the right to execute consents and to vote on any shares of stock or voting trust certificates or other direct or indirect equity participations or investments so owned; to promote, lend money to and guarantee the dividends, stocks, bonds, notes, evidences of indebtedness, contracts or other obligations of, and otherwise aid in any lawful manner, any corporation, joint stock company, syndicate, association, firm, trust, partnership, joint venture, company or other like or unlike incorporated or unincorporated business or enterprise of which any bonds, shares of stock, voting trust certificates or other securities or evidences of indebtedness shall be held by or for this corporation, or in which, or in the welfare of which, this corporation shall have any interest; and to do any acts and things permitted by law and designed to protect, preserve, improve or enhance the value of any such bonds, shares of stock or other direct or indirect equity participations or investments or the property of this corporation. (b) To develop, manufacture, produce, assemble, buy, sell, acquire, lease, use, distribute and otherwise deal in and with electrical, mechanical, chemical and electronic apparatus, instruments and equipment for use in the measurement, evaluation, investigation and control of various procedures, processes and physical and scientific phenomena in the health, biological, industrial and environmental fields and in other fields, any and all kindred and sundry 3 -3- products related or incidental thereto and any and all other machines, tools, devices, equipment, goods and products of any kind whatsoever. (c) To provide sales and marketing support, promotion, testing and engineering services and otherwise to assist in the marketing of and consummation of sales and leases of such electrical, mechanical, chemical and electronic apparatus, instruments, equipment and related products and such other machines, tools, devices, equipment, goods and products. (d) To engage in installing, servicing and similar activities with regard to such electrical, mechanical, chemical and electronic apparatus, instruments, equipment and related products and such other machines, tools, devices, equipment, goods and products. (e) To conduct tests, measurements, investigations and similar activities of and with regard to such electrical, mechanical, chemical and electronic apparatus, instruments, equipment and related products and any and all unrelated products for its own use and the use of others. (f) To engage in researching, developing, designing, engineering, formulating and inventing new and improved electrical, mechanical, chemical and electronic apparatus, instruments, equipment and related products and such other machines, tools, devices and equipment, processes incorporating the same, technological improvements thereof and innovations related thereto and any related and unrelated apparatus, instruments, equipment or other goods or products and applications for any of the same. (g) To obtain, register, purchase, lease and otherwise acquire, hold, use, develop and introduce, to sell, assign, transfer any interests in or to and to grant and acquire licenses in and to and otherwise deal in and with or turn to account any and all copyrights, trademarks, trade names, inventions, improvements and processes, applications for Letters Patent 4 -4- and Letters Patent of the United States of America or any other country relating to or useful in connection with any lawful business of the corporation. (h) To acquire all or any part of the property and business, including goodwill, of any person, corporation, association, firm, partnership or enterprise engaged in any business similar to the business, objects or purposes of the corporation or in any other business, to pay any appropriate consideration therefor, including cash and securities issued by the corporation, to assume in connection therewith all or any part of the liabilities or obligations of any such person, corporation, association, firm, partnership or enterprise and to hold, conduct, use or dispose of the whole or any part of the property and business, including any goodwill, so acquired. (i) To borrow or raise moneys for any business, object or purpose of the corporation and, from time to time without limit as to amount, to draw, make, accept, endorse, execute and issue any kind of evidence of indebtedness, whether or not in connection with the borrowing of money, including without limiting the generality of the foregoing promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or non-negotiable instruments and evidences of indebtedness, and to secure the payment of any such indebtedness including interest thereon by the creation of any interest in or with respect to any of the property or rights of the corporation whether owned at the time such indebtedness is incurred or thereafter acquired or by mortgaging, pledging, hypothecating, conveying or assigning in trust the whole or any part of the property of every kind, character or description whatsoever of the corporation, whether at the time owned or thereafter acquired, and to sell, pledge or otherwise dispose of any such evidences of indebtedness of the corporation for its corporate purposes. (j) To loan to any person, corporation, trust, firm, public authority or organization of any kind any of its funds or property, with or without security, and to guarantee 5 -5- any indebtedness or other obligations of any of the foregoing, whether or not the obligor is a parent or a stockholder or subsidiary of or is otherwise affiliated with the corporation. (k) To purchase, receive, take by grant, gift, devise, bequest or otherwise, lease or otherwise acquire, own, hold, improve, employ, use, convey and otherwise dispose of and deal in and with real or personal property of any kind whatsoever, or any interest therein, wherever situated, and to sell, convey, lease, exchange, transfer or otherwise dispose of, or mortgage or pledge, all or any of the corporation's property and assets or any interest therein, wherever situated. (l) To engage in any part of the world and in any capacity in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as now in force or as hereafter amended and to possess, exercise and enjoy all the powers, rights and privileges granted by the General Corporation Law of the State of Delaware, together with any lawful powers, rights and privileges incidental thereto, so far as such powers, rights and privileges are necessary or convenient to the conduct or promotion of the business or purposes of the corporation. (m) The enumeration of certain powers in this Certificate of Incorporation is not intended to be exclusive of, or as a waiver of, any of the powers, rights or privileges conferred by the General Corporation Law of the State of Delaware as now in force or as hereafter amended, and the corporation shall be authorized to exercise and enjoy all powers conferred upon corporations by the laws of the State of Delaware as in force from time to time. The business, objects and purposes specified in the foregoing clauses shall, except where otherwise expressed, be in no respect limited or restricted by reference to, or inference from, the terms of any other clause in this Certificate of Incorporation, but the business, objects and 6 -6- purposes specified in each of the foregoing clauses of this Article 3 shall be regarded as independent business objects and purposes. 4. Capital Stock. (a) The total number of shares of stock which the corporation shall have authority to issue is twenty thousand (20,000) common shares of the par value of One ($1.00) Dollar per share (herein called the "Common Stock") amounting in the aggregate to Twenty Thousand ($20,000) Dollars. The twenty thousand (20,000) authorized shares of Common Stock are divided into ten thousand (10,000) shares designated "Class A Common Stock" and ten thousand (10,000) shares designated "Class B Common Stock." (b) Except as hereinafter set forth, the Class A Common Stock and the Class B Common Stock shall have identical powers and rights, including, without limitation, (i) the right to receive dividends and (ii) the right to receive distributions in the event of the liquidation, dissolution or winding up of the affairs of the corporation, whether voluntary or involuntary. No dividend or other distribution on or with respect to Class A Common Stock or Class B Common Stock shall be declared or paid unless declared or paid on both classes concurrently and at equal rates per share. (c) Except as otherwise required by law, the entire voting power for the election of directors and for all other matters and purposes shall be vested exclusively in the holders of the outstanding shares of Class A Common Stock, and the Class B Common Stock shall not be entitled to vote and the provisions of any statute which authorize any action by a vote or written consent of the holders of the shares or a specific proportion of the shares of the corporation shall not be deemed to apply to the holders of Class B Common Stock. 5. Pre-Emptive Rights. The holders of Common Stock shall have pre-emptive rights to subscribe to any or all additional shares of stock of the corporation hereafter 7 -7- issued, including any shares hereafter authorized, or any securities exchangeable for or convertible into such shares or any warrants or other instruments evidencing rights or options to subscribe for, purchase or otherwise acquire such shares from the corporation; provided, however, that only holders of Class A Common Stock shall have such pre-emptive rights to subscribe to any or all additional shares of Class A Common Stock or securities that may be converted into or exchanged for shares of Class A Common Stock or rights to acquire shares of Class A Common Stock, but that holders of both Class A Common Stock and Class B Common Stock shall have such pre-emptive rights to subscribe to any additional shares of Class B Common Stock or securities that may be converted into or exchanged for shares of Class B Common Stock or rights to acquire shares of Class B Common Stock. 6. The names and mailing address of the incorporators are as follows: NAME MAILING ADDRESS - ---- --------------- Robert H. Aland 2800 Prudential Plaza Chicago, Illinois 60601 Robert B. Cartwright 2800 Prudential Plaza Chicago, Illinois 60601 7. The names and mailing addresses of the persons who are to serve as directors of the corporation until the first annual meeting of stockholders or until their successors are elected and qualified are as follows: NAME MAILING ADDRESS - ---- --------------- Joseph R. Coulter, Jr. 1015 Ibis Avenue Miami Springs, Florida 33166 Wallace H. Coulter 910 Quail Avenue Miami Springs, Florida 33166 Stewart D. Allen 5747 LaGorce Miami Beach, Florida 33140 8. Perpetual Existence. The corporation shall have perpetual existence. 8 -8- 9. Limited Liability. The stockholders of the corporation will not be personally liable for the payment of debts of the corporation to any extent whatsoever. 10. By-Laws. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the By-Laws of the corporation; provided, however, that such authorization shall not divest the stockholders of the power or limit their power to adopt, amend or repeal the By-Laws of the corporation. 11. Stockholder Meetings and Director Elections. Meetings of stockholders may be held within or without the State of Delaware as the By-Laws may provide. Elections of directors need not be by written ballot unless the By-Laws of the corporation so provide. 12. Indemnification. The corporation shall indemnify its directors, officers, employees or agents to the full extent permitted by the General Corporation Law of the state of Delaware as now in force or as hereafter amended. 13. Books and Records. The books and records of the corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the corporation. 14. Compromise or Arrangement. Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the 9 -9- creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. 15. Amendment, Etc. The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein upon stockholders are granted subject to this reservation. THE UNDERSIGNED, being the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is their act and deed and the facts herein stated are true and accordingly have hereunto set their hands this 19th day of November, 1975. /s/ Robert H. Aland ---------------------------------- Robert H. Aland, Incorporator /s/ Robert B. Cartwright ---------------------------------- Robert B. Cartwright, Incorporator EX-3.4 3 a70593ex3-4.txt EXHIBIT 3.4 1 EXHIBIT 3.4 BY-LAWS OF COULTER CORPORATION (A Delaware Corporation) ********** ARTICLE I OFFICES Section 1. REGISTERED OFFICE. The registered office shall be at 229 South State Street in the City of Dover, County of Kent, State of Delaware. Section 2. OTHER OFFICES. The corporation may also have offices at such other place both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE II STOCKHOLDERS Section 1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of, the corporation by the Chairman or Vice Chairman of the Board of Directors, if any, or by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the corporation certifying the number of shares owned by him in the corporation. Any and all signatures on any such certificate may be facsimiles. 2 -2- Whenever the corporation shall issue any shares of its stock as partly paid stock, the certificates representing such shares shall set forth thereon the statements prescribed by the General Corporation Law of the State of Delaware ("General Corporation Law"). Any restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted conspicuously on the certificate representing such shares. The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it alleged to have been lost, stolen or destroyed, and the Board of Directors may require the owner of any lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to identify the corporation against any claim that may be made against it on Account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate. Section 2. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfers of shares of stock, if any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation and on surrender of the certificate or certificates for such shares of stock properly endorsed and the payment of all taxes due thereon. Section 3. RECORD DATE. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or the allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the 3 -3- purpose of any other lawful action, the directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed; and the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at any meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 4. STOCKHOLDER MEETINGS. (a) TIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the directors; provided that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. A special meeting shall be held on the date and at the time fixed by the directors or by the shareholders calling the meeting pursuant to Section 4(c) of this Article II. (b) PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Delaware, as the directors, or the shareholders calling the special meetings pursuant to Section 4(c) of this Article II, may, from time to time, fix. (c) CALL. Annual meetings of the stockholders may be called by the directors or by any officer instructed by the directors to call the meeting. Special meetings of 4 -4- the stockholders for any purpose or purposes may be called by the President and shall be called by the President or Secretary at the request in writing of a majority of the Board of Directors or at the request in writing of stockholders owning at least one-half in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. (d) NOTICE AND WAIVER OF NOTICE. Written notice of all meetings shall be given stating the place, date and hour of the meeting. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction of other business which may properly come before the meeting and shall (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purpose or purposes. The notice of a special meeting shall in all instances state the purpose or purposes for which the meeting is called. The notice of any meeting shall also include, or be accompanied by, any additional statements, information or documents prescribed by the General Corporation Law. Except as otherwise provided by the General Corporation Law, the notice of any meeting shall be given, personally or by mail, not more than sixty days nor less than ten days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived, and directed to each stockholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in the United States mail. If a meeting is adjourned to another time not more than thirty days hence and/or to another place and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice need not be given to any stockholder who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of a stockholder at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice. 5 -5- (e) STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, at the place where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation or to vote at any meeting of stockholders. (f) CONDUCT OF MEETING. Meetings of the stockholders shall be presided over by one of the following officers in the order of seniority and if present and acting -- the Chairman of the Board, if any, the Vice Chairman of the Board, if any, the President, a Vice President, of, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the stockholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting. (g) PROXY REPRESENTATION. Every stockholder may authorize another person or persons to act for him by proxy in all matters in which a stockholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or by his attorney-in-fact. No proxy shall be voted or acted upon after three years from its date unless such proxy provides for a longer period. A duly executed proxy shall 6 -6- be irrevocable if it states that it is irrevocable and, if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. (h) QUORUM. The holder (s) of at least one half of the outstanding shares of stock shall constitute a quorum at a meeting of stockholders for the transaction of any business. The stockholders present may adjourn the meeting despite the absence of a quorum. (i) VOTING. Each share of Class A Common Stock shall entitle the holder thereof to one vote. In the election of directors, a majority of the votes cast by the holders of the Class A Common Stock shall elect. Any other action shall be authorized by a majority of the votes cast by the holders of the Class A Common Stock except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power. In the election of directors by the holders of the Class A Common Stock, and for any other action, voting need not be by written ballot. Except as otherwise required by law, the Class B Common Stock shall not be entitled to vote, and the provisions of any statute which authorize any action by a vote or written consent of the holders of the shares or a specific proportion of the shares of the corporation shall not be deemed to apply to the holders of Class B Common Stock. Section 5. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the General Corporation Law to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding Class A Common Stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those holders of Class A Common Stock who have not consented in writing. 7 -7- ARTICLE III DIRECTORS Section 1. FUNCTIONS. The business and affairs of the corporation shall be managed by or under the direction of its Board of Directors. Section 2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder, a citizen of the United States or a resident of the State of Delaware. The initial Board of Directors shall consist of three (3) persons. Except for the first Board of Directors, the number of directors may be fixed from time to time by action of the stockholders or of the directors or, if the number is not fixed, the number shall be three (3). Section 3. ELECTION AND TERM. The first Board of Directors named in the Certificate of Incorporation shall hold office until the first annual meeting of stockholders and until their successors are duly elected and qualified or until their earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. Directors who are elected at an annual meeting of stockholders and directors who are elected in the interim to fill vacancies and newly created directorships shall hold office until the next annual meeting of stockholders and until their successors are duly elected and qualified or until their earlier resignation or removal. In the interim between annual meetings of stockholders or of special meetings of stockholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director. 8 -8- Section 4. DIRECTORS MEETINGS. (a) TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble. (b) PLACE. Meetings shall be held at such place within or without the State of Delaware as shall be fixed by the Board. (c) CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, the Vice Chairman of the Board, if any, or the President or by a majority of the directors in office. (d) NOTICE AND WAIVER OF NOTICE. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. Notice need not be given to any director or to any member of a committee of directors who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of any such person at a meeting shall constitute a waiver of notice of such meeting, except when he attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors need be specified in any written waiver of notice. (e) QUORUM AND ACTION. A majority of the Board shall constitute a quorum except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise provided, and except as otherwise provided by the General Corporation Law, the vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. 9 -9- The quorum and voting provisions herein stated shall not be construed as conflicting with any provisions of the General Corporation Law and these By-Laws which govern a meeting of directors held to fill vacancies and newly created directorships. (f) CONDUCT OF MEETING. The Chairman of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the Vice Chairman of the Board, if any and if present and acting, or the President, if a member of the Board and if present and acting, or any other director chosen by the Board, shall preside. Section 5. REMOVAL OF DIRECTORS. Any or all of the directors may be removed for cause or without cause by the holders of a majority of the Class A Common Stock except as otherwise provided by the General Corporation Law. Section 6. COMMITTEES. Whenever its number consists of three or more, the Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of two or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of any such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation with the exception of any authority the delegation of which is prohibited by Section 141 of the General Corporation Law and may authorize the seal of the corporation to be affixed to all papers which may require it. 10 -10- Section 7. INFORMAL ACTION. Any member or members of the Board of Directors or of any committee designated by the Board may participate in a meeting of the Board or any such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. ARTICLE IV OFFICERS Section 1. DESIGNATION. The officers of the corporation shall consist of a President, a Vice President, a Secretary, a Treasurer and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice chairman of the Board, an Executive Vice President, additional Vice Presidents, one or more Assistant Secretaries, one or one or more Assistant Treasurers and such other officers with such titles as the resolution or instrument choosing them shall designate. Section 2. QUALIFICATIONS. Except as may otherwise be provided in the resolution or instrument choosing him, no officer other than the Chairman of the Board, if any, and the Vice Chairman of the Board, if any, need be a director. Any number of offices may be held by the same person as the directors may determine, except that no person may hold the offices of President and Secretary simultaneously. Section 3. TERM OF OFFICE. Unless otherwise provided in the resolution or instrument choosing him, each officer shall be chosen for a term which shall continue until the meeting of the Board of Directors following the next annual meeting of stockholders and until his successor shall have been duly chosen and qualified. 11 -11- Section 4. REMOVAL. Any officer may be removed, with or without cause, by the Board of Directors; and any subordinate or junior officer not chosen by the Board of Directors, but chosen under duly constituted authority conferred by the Board of Directors, may be removed, with or without cause, by the officer or officers who chose him. Section 5. VACANCIES. Any vacancy in any office may be filled by the Board of Directors. A vacancy in any junior or subordinate office not filled by the Board of Directors may be filled by the officer or officers duly vested with the authority to choose the person to fill such office. Section 6. CHOOSING OFFICERS. The Board of Directors shall choose the President, the Vice President, the Secretary, the Treasurer, the Chairman of the Board, if any, the Vice Chairman of the Board, if any, an Executive Vice President, if any, additional Vice Presidents, if any, and such other officers as may be designated by them and may confer upon any executive officer or officers authority to choose junior or subordinate officers. Section 7. DUTIES AND AUTHORITY. (a) PRESIDENT. The president shall be the principal executive officer of the corporation and shall in general supervise, manage and control all of the business and affairs of the corporation. In amplification and not limitation of the foregoing, and except as otherwise provided by any provision of law, the President shall negotiate, enter into and sign or countersign and otherwise execute in the name or on behalf of the corporation all contracts, deeds, mortgages, pledges, bonds, evidences of indebtedness, leases, certificates, instruments and other transactions and shall make reports to the Board of Directors, any committee thereof and the stockholders. He shall also exercise such additional authority and perform such additional duties as shall be assigned to him by the Board of Directors. 12 -12- (b) THE VICE-PRESIDENT. In the absence of the President or in the event of his inability or refusal to act, the Vice-President (or in the event there be more than one Vice-President, the Vice-Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the President and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice-President shall perform such other duties as from time to time may be assigned to him by the President or by the Board of Directors. (c) THE SECRETARY. The Secretary shall (a) keep the minutes of the stockholders' and of the Board of Directors' meetings in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these By-Laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all certificates for shares prior to the issue thereof and to all documents the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these By-Laws; (d) have general charge of the stock ledger of the corporation; and (e) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. (d) TREASURER. The Treasurer shall be the principal financial officer of the corporation and in general shall perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. (e) ASSISTANT SECRETARIES AND TREASURERS. The Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary or the Treasurer respectively, or by the President or the Board of Directors. 13 -13- (f) OTHER OFFICERS. All other officers of the corporation shall exercise such authority and perform such duties as may be provided for in the resolutions or instruments choosing them and prescribing their authority and duties. Section 8. SALARIES. The salaries of the officers shall be fixed from time to time by the Board of Directors. Section 9. RESOLUTIONS AND INSTRUMENTS. The Secretary of the corporation shall keep, or cause to be kept, with the By-Laws of the corporation a copy of every resolution or instrument designating and choosing officers and prescribing their qualifications, tenure, authority, duties, compensation and other appropriate incidents and attributes of office; and each such resolution or instrument shall be deemed to be a component part of these By-Laws. ARTICLE V CORPORATE SEAL The corporate seal shall be in such form as the Board of Directors shall prescribe. ARTICLE VI FISCAL YEAR The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors. 14 -14- ARTICLE VII DIVIDENDS The Board of Directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares of Class A Common Stock and Class B Common Stock in the manner and upon the terms and conditions provided by law and its Certificate of Incorporation. ARTICLE VIII AMENDMENTS These By-Laws may be amended or repealed or new By-Laws may be adopted by the holders of the Class A Common Stock or by the Board of Directors at any regular or special meeting of the stockholders or of the Board of Directors if notice of such amendment or repeal or adoption of new By-Laws is contained in the notice if such meeting is a special meeting. The fact that the power to amend or repeal or adopt new By-Laws is conferred herein upon the Board of Directors shall not divest the holders of the Class A Common Stock of the power or limit their power to amend or repeal or adopt new By-Laws. The Board of Directors shall not have the power to adopt, amend or repeal By-Laws amended, repealed or adopted by the holders of the Class A Common Stock. Adopted: January 2, 1976 15 COULTER CORPORATION SHAREHOLDERS ACTION BY UNANIMOUS WRITTEN CONSENT We the undersigned, comprising all the Class A shareholders of the corporation, hereby consent in writing pursuant to the Delaware General Corporation Law and the By-Laws of the Corporation, to the following action: RESOLVED that the By-Laws of said corporation are amended as follows: Article III, Section 2, Directors, Qualification and Number is hereby amended to reduce the number of directors from three (3) to two (2). Hialeah, Florida /s/ Wallace H. Coulter March 29, 1985 -------------------------------------- Wallace H. Coulter /s/ Joseph R. Coulter, Jr. -------------------------------------- Joseph R. Coulter, Jr. Being all the Class A Shareholders of Coulter Corporation EX-3.5 4 a70593ex3-5.txt EXHIBIT 3.5 1 EXHIBIT 3.5 RESTATED ARTICLES OF INCORPORATION OF HB ACQUISITION CORP. John P. Wareham and William H. May certify that: 1. They are the President and the Secretary, respectively, of HB ACQUISITION CORP., (the "Corporation"), a California corporation. 2. The corporation was originally incorporated on September 29, 1995, under the name of HB ACQUISITION CORP. 3. The Restated Articles of Incorporation restates and integrates and amends the Articles of Incorporation of the Corporation. 4. The text of the Articles of Incorporation is amended to read as herein set forth in full: ARTICLES OF INCORPORATION OF HYBRITECH INCORPORATED FIRST: The name of the corporation (hereinafter referred to as the "corporation") is HYBRITECH INCORPORATED. SECOND: The existence of the corporation is perpetual. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California, other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. FOURTH: The name of the corporation's initial agent for service of process within the State of California in accordance with the provisions of subdivision (b) of Section 1502 of the Corporations Code of the State of California is The Prentice-Hall Corporation System, Inc. FIFTH: The total number of shares which the corporation is authorized to issue is Ten Thousand (10,000), all of which are of one class and of a par value of $.01 each, and all of which are Common shares. 2 The Board of Directors of the corporation may issue any or all of the aforesaid authorized shares of the corporation from time to time for such consideration as it shall determine and may determine from time to time the amount of such consideration, if any, to be credited to paid-in surplus. SIXTH: In the interim between meetings of shareholders held for the election of directors or for the removal of one or more directors and the election of the replacement or replacements thereat, any vacancy which results by reason of the removal of a director or directors by the shareholders entitled to vote in an election of directors, and which has not been filled by said shareholders, may be filled by a majority of the directors then in office, whether or not less than a quorum, or by the sole remaining director, as the case may be. SEVENTH: The liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. EIGHTH: The corporation is authorized to provide indemnification of agents (as defined in Section 317 of the Corporations Code) for breach of duty to the corporation and its stockholders through bylaw provisions or through agreements with the agents, or both, in excess of the indemnification otherwise permitted by Section 317 of the Corporations Code, subject to the limits on such excess indemnification set forth in Section 204 of the Corporations Code. 5. The foregoing amendment and restatement of articles of incorporation has been duly approved by the board of directors. 6. The foregoing amendment and restatement of articles of incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is 10,000. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. IN WITNESS WHEREOF, John P. Wareham and by William H. May each declare under penalty of perjury under the laws of the State of California that they have read the foregoing certificate and know the contents thereof and that the same is true of their own knowledge. Dated: January 10, 1996 By: /s/ JOHN P. WAREHAM By: /s/ WILLIAM H. MAY -------------------------------- -------------------------------- John P. Wareham William H. May EX-3.6 5 a70593ex3-6.txt EXHIBIT 3.6 1 EXHIBIT 3.6 BYLAWS HB ACQUISITION CORP. (a California corporation) ARTICLE I - SHAREHOLDERS 1. CERTIFICATES FOR SHARES. Each certificate for shares of the corporation shall set forth thereon the name of the record holder of the shares represented thereby, the number of shares and the class or series of shares owned by said holder, the par value, if any, of the shares represented thereby, and such other statements, as applicable, prescribed by Sections 416-419, inclusive, and other relevant Sections of the General Corporation Law of the State of California (the "General Corporation Law") and such other statements, as applicable, which may be prescribed by the Corporate Securities Law of 1968 of the State of California and any other applicable provision of law. Each such certificate issued shall be signed in the name of the corporation by the Chairman of the Board of Directors, if any, or the Vice Chairman of the Board of Directors, if any, the President, if any, or a Vice President, if any, and by the chief financial officer or a Treasurer, an Assistant Treasurer or the Secretary or an Assistant Secretary. Any or all of the signatures on a certificate for shares may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate for shares shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue. In the event that the corporation shall issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor, any such certificate for shares shall set forth thereon the statements prescribed by Section 409 of the General Corporation Law. The corporation may issue a new certificate for shares or for any other security in the place of any other certificate theretofore issued by it, which is alleged to have been lost, stolen or destroyed. As a condition to such issuance, the corporation may require any such owner of the allegedly lost, stolen or destroyed certificate or any such owner's legal representative to give the corporation a bond, or other adequate security, sufficient to indemnify it against any claim that may be made against it, including any expense or liability, on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. 1 2 2. FRACTIONAL SHARES. Subject to, and in compliance with, the provisions of Section 407 and any other provisions of the General Corporation Law the corporation may, but need not, issue fractions of a share originally or upon transfer. If the corporation does not issue fractions of a share, it shall in connection with any original issuance of shares arrange for the disposition of fractional interest by those entitled thereto, or pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or issue scrip or warrants in registered or bearer form which shall entitle the holder to receive a certificate for a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon and to participate in any of the assets of the corporation in the event of liquidation. The Board of Directors may cause scrip or warrants to be issued subject to the condition that they shall become void if not exchanged for a certificate or certificates representing a full share or full shares, as the case may be, before a specified date or that any of the shares for which scrip or warrants are exchangeable may be sold by the corporation, and any proceeds thereof distributed to the holder of any such scrip or warrants or any other condition which the Board of Directors may impose. 3. SHARE TRANSFERS. Upon compliance with any provisions of the General Corporation Law and/or the Corporate Securities Law of 1968 which may restrict the transferability of shares, transfers of shares of the corporation shall be made only on the record of shareholders of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes, if any, due thereon. 4. RECORD DATE FOR SHAREHOLDERS. In order that the corporation may determine the shareholders entitled to notice of any meeting or to vote or be entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days or fewer than ten days prior to the date of such meeting or more than sixty days prior to any other action. If the Board of Directors shall not have fixed a record date as aforesaid, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the 2 3 day on which the meeting is held; the record date for determining shareholders entitled to give consent to corporate action in writing without a meeting, when no prior action by the Board of Directors has been taken, shall be the day on which the first written consent is given; and the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto, or the sixtieth day prior to the date of such other action, whichever is later. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the Board of Directors fixes a new record date for the adjourned meeting, but the Board of Directors shall fix a new record date if the meeting is adjourned for more than forty-five days from the date set for the original meeting. Except as may be otherwise provided by the General Corporation Law, shareholders at the close of business on the record date shall be entitled to notice and to vote or to receive any dividend, distribution or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date. 5. MEANING OF CERTAIN TERMS. As used in these Bylaws in respect of the right to notice of a meeting of shareholders or a waiver thereof or to participate or vote thereat or to assent or consent or dissent in writing in lieu of a meeting, as the case may be, the term "share" or "shares" or "shareholder" or "shareholders" refers to an outstanding share or shares and to a holder or holders of record of outstanding shares when the corporation is authorized to issue only one class of shares, and said reference is also intended to include any outstanding share or shares and any holder or holders of record of outstanding shares of any class upon which or upon whom the Articles of Incorporation confer such rights where there are two or more classes or series of shares or upon which or upon whom the General Corporation Law confers such rights notwithstanding that the Articles of Incorporation may provide for more than one class or series of shares, one or more of which are limited or denied such rights thereunder. 6. SHAREHOLDER MEETINGS. - TIME. An annual meeting for the election of directors and for the transaction of any other proper business and any special meeting shall be held on the date and at the time as the Board of Directors shall from time to time fix. 3 4 - PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of California, as the directors may, from time to time, fix. Whenever the directors shall fail to fix such place, the meeting shall be held at the principal executive office of the corporation. - CALL. Annual meetings may be called by the directors, by the Chairman of the Board, if any, Vice Chairman of the Board, if any, the President, if any, the Secretary, or by any officer instructed by the directors to call the meeting. Special meetings may be called in like manner and by the holders of shares entitled to cast not less than ten percent of the votes at the meeting being called. - NOTICE. Written notice stating the place, day, and hour of each meeting, and, in the case of a special meeting, the general nature of the business to be transacted or, in the case of an Annual Meeting, those matters which the Board of Directors, at the time of mailing of the notice, intends to present for action by the shareholders, shall be given not less than ten days (or not less than any such other minimum period of days as may be prescribed by the General Corporation Law) or more than sixty days (or more than any such maximum period of days as may be prescribed by the General Corporation Law) before the date of the meeting, either personally or by mail or other means of written communication, charges prepaid by or at the direction of the directors, the President, if any, the Secretary or the officer or persons calling the meeting, addressed to each shareholder at his address appearing on the books of the corporation or given by him to the corporation for the purpose of notice, or, if no such address appears or is given, at the place where the principal executive office of the corporation is located or by publication at least once in a newspaper of general circulation in the county in which the said principal executive office is located. Such notice shall be deemed to be delivered when deposited in the United States mail with first class postage thereon prepaid, or sent by other means of written communication addressed to the shareholder at his address as it appears on the stock transfer books of the corporation. The notice of any meeting at which directors are to be elected shall include the names of nominees intended at the time of notice to be presented by the Board of Directors for election. At an annual meeting of shareholders, any matter relating to the affairs of the corporation, whether or not stated in the notice of the meeting, may be brought up for action except matters which the General Corporation Law requires to be stated in the notice of the meeting. The notice of any annual or special meeting shall also include, or be accompanied by, any additional statements, information, or documents prescribed by the General Corporation Law. When a meeting is adjourned to another time or place, notice of the adjourned meeting need not be given if the time and place thereof 4 5 are announced at the meeting at which the adjournment is taken; provided that, if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. The transactions of any meeting, however called and noticed, and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum is present and if, either before or after the meeting, each of the shareholders or his proxy signs a written waiver of notice or a consent to the holding of the meeting or an approval of the minutes thereof. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting constitutes a waiver of notice of and presence at such meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened and except that attendance at a meeting shall not constitute a waiver of any right to object to the consideration of matters required by the General Corporation Law to be included in the notice but not so included, if such objection is expressly made at the meeting. Except as otherwise provided in subdivision (f) of Section 601 of the General Corporation Law, neither the business to be transacted at nor the purpose of any regular or special meeting need be specified in any written waiver of notice, consent to the holding of the meeting or the approval of the minutes thereof. - CONDUCT OF MEETING. Meetings of the shareholders shall be presided over by one of the following officers in the order of seniority and if present and acting - the Chairman of the Board, if any, the Vice Chairman of the Board, if any, the President, if any, a Vice President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the shareholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but, if neither the Secretary nor an Assistant Secretary is present, the Chairman of the meeting shall appoint a secretary of the meeting. - PROXY REPRESENTATION. Every shareholder may authorize another person or persons to act as his proxy at a meeting or by written action. No proxy shall be valid after the expiration of eleven months from the date of its execution unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the person executing it prior to the vote or written action pursuant thereto, except as otherwise provided by the General Corporation Law. As used herein, a "proxy" shall be deemed to mean a written authorization signed or an electronic transmission authorized by a shareholder or a shareholder's 5 6 attorney in fact giving another person or persons power to vote with respect to the shares of such shareholder, and "signed" as used herein shall be deemed to mean the placing of such shareholder's name or other authorization on the proxy, whether by manual signature, typewriting, telegraphic or electronic transmission or otherwise by the shareholder or the shareholder's attorney in fact. Where applicable, the form of any proxy shall comply with the provisions of Section 604 of the General Corporation Law. - INSPECTORS - APPOINTMENT. In advance of any meeting, the Board of Directors may appoint inspectors of election to act at the meeting and any adjournment thereof. If inspectors of election are not so appointed, or, if any persons so appointed fail to appear or refuse to act, the Chairman of any meeting of shareholders may, and on the request of any shareholder or a shareholder's proxy shall, appoint inspectors of election, or persons to replace any of those who so fail or refuse, at the meeting. The number of inspectors shall be either one or three. If appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares represented shall determine whether one or three inspectors are to be appointed. The inspectors of election shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the authenticity, validity, and effect of proxies, receive votes, ballots, if any, or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and tabulate all votes or consents, determine when the polls shall close, determine the result, and do such acts as may be proper to conduct the election or vote with fairness to all shareholders. If there are three inspectors of election, the decision, act, or certificate of a majority shall be effective in all respects as the decision, act, or certificate of all. - QUORUM; VOTE; WRITTEN CONSENT. The holders of a majority of the voting shares shall constitute a quorum at a meeting of shareholders for the transaction of any business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment notwithstanding the withdrawal of enough shareholders to leave less than a quorum if any action taken, other than adjournment, is approved by at least a majority of the shares required to constitute a quorum. In the absence of a quorum, any meeting off shareholders may be adjourned from time to time by the vote of a majority of the shares represented thereat, but no other business may be transacted except as hereinbefore provided. 6 7 In the election of directors, a plurality of the votes cast shall elect. No shareholder shall be entitled to exercise the right of cumulative voting at a meeting for the election of directors unless the candidate's name or the candidates' names have been placed in nomination prior to the voting and the shareholder has given notice at the meeting prior to the voting of the shareholder's intention to cumulate the shareholder's votes. If any one shareholder has given such notice, all shareholders may cumulate their votes for such candidates in nomination. Except as otherwise provided by the General Corporation Law, the Articles of Incorporation or these Bylaws, any action required or permitted to be taken at a meeting at which a quorum is present shall be authorized by the affirmative vote of a majority of the shares represented and voting at the meeting; provided, that said shares voting affirmatively shall also constitute at least a majority of the required quorum. Except in the election of directors by written consent in lieu of a meeting, and except as may otherwise be provided by the General Corporation Law, the Articles of Incorporation or these Bylaws, any action which may be taken at any annual or special meeting may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, shall be signed by holders of shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Directors may not be elected by written consent except by unanimous written consent of all shares entitled to vote for the election of directors. Notice of any shareholder approval pursuant to Section 310, 317, 1201 or 2007 without a meeting by less than unanimous written consent shall be given at least ten days before the consummation of the action authorized by such approval, and prompt notice shall be given of the taking of any other corporate action approved by shareholders without a meeting by less than unanimous written consent to those shareholders entitled to vote who have not consented in writing. Elections of directors at a meeting need not be by ballot unless a shareholder demands election by ballot at the election and before the voting begins. In all other matters, voting need not be by ballot. 7. ANNUAL REPORT. Whenever the corporation shall have fewer than one hundred shareholders as said number is determined as provided in Section 605 of the General Corporation Law, the Board of Directors shall not be required to cause to be sent to the shareholders of the corporation the annual report prescribed by Section 1501 of the General Corporation Law unless it shall determine that a useful purpose would be served by causing the same 7 8 to be sent or unless the Department of Corporations, pursuant to the provisions of the Corporate Securities Law of 1968, shall direct the sending of the same. ARTICLE II - BOARD OF DIRECTORS 1. FUNCTIONS. Except as any provision of law may otherwise require, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of its Board of Directors. The Board of Directors may delegate the management of the day-to-day operation of the business of the corporation to a management company or other person, provided that the business and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board of Directors. The Board of Directors shall have authority to fix the compensation of directors for services in any lawful capacity. 2. QUALIFICATIONS AND NUMBER. A director need not be a shareholder of the corporation, a citizen of the United States, or a resident of the State of California. The number of directors constituting the Board shall be at least three and not more than six; provided, however, that so long as the corporation has only one shareholder, the number may be one or two, and so long as the corporation has only two shareholders, the number may be two. Subject to the foregoing provisions and the provisions of Section 212 of the General Corporation Law, the number of directors may be changed from time to time by an amendment of these Bylaws. No decrease in the authorized number of directors shall have the effect of shortening the term of any incumbent director. 3. ELECTION AND TERM. The initial Board of Directors shall consist of the persons elected at the meeting of the incorporator or incorporators, all of whom shall hold office until the first annual meeting of shareholders and until their successors have been elected and qualified, or until their earlier resignation, removal from office or death. Thereafter, directors who are elected to replace any or all of the members of the initial Board of Directors or who are elected at an annual meeting of shareholders, and directors who are elected in the interim to fill vacancies, shall hold office until the next annual meeting of shareholders and until their successors have been elected and qualified, or until their earlier resignation, removal from office, or death. In the interim between annual meetings of shareholders or of special meetings of shareholders called for the election of directors, any vacancies in the Board of Directors, including vacancies resulting from an increase in the authorized number of directors which have not been filled by the shareholders, and including any other vacancies which the General Corporation Law authorizes directors to fill, except for a vacancy created by the 8 9 removal of a director, may be filled by directors or by the sole remaining director, as the case may be, in the manner prescribed by Section 305 of the General Corporation Law. Vacancies occurring by reason of the removal of directors which are not filled at the meeting of shareholders at which any such removal has been effected may be filled by the directors if the Articles of Incorporation or a Bylaw adopted by the shareholders so provides. Any director may resign effective upon giving written notice to the Chairman of the Board, if any, the President, if any, the Secretary or the Board of Directors, unless the notice specifies a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor may be elected to the office when the resignation becomes effective. The shareholders may elect a director at any time to fill any vacancy which the directors are entitled to fill, but which they have not filled. Any such election by written consent other than to fill a vacancy created by removal shall require the consent of a majority of the shares. The name and the address of each initial director elected by the incorporator or incorporators are set forth in the minutes of the organization of the incorporator or incorporators at which each said initial director was elected, and said name and the address are hereby made a part of these Bylaws as if fully set forth therein. 4. MEETINGS. - TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble. - PLACE. Meetings may be held at any place, within or without the State of California, which has been designated in any notice of the meeting, or, if not stated in said notice or, if there is no notice given, at the place designated by resolution of the Board of Directors. - CALL. Meetings may be called by the Chairman of the Board, if any, by the Vice Chairman of the Board, if any, by the President, if any, by any Vice President or Secretary, or by any two directors. - NOTICE AND WAIVER THEREOF. No notice shall be required for regular meetings for which the time and place have been fixed by the Board of Directors. Special meetings shall be held upon at least four days' notice by mail or upon at least forty-eight hours' notice delivered personally or by telephone or telegraph. Notice 9 10 of a meeting need not be given to any director who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director. A notice or waiver of notice need not specify the purpose of any regular or special meeting of the Board of Directors. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. - QUORUM AND ACTION. A majority of the authorized number of directors shall constitute a quorum except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided such majority shall constitute at least either one-third of the authorized number of directors or at least two directors, whichever is larger, or unless the authorized number of directors is only one. A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. If the meeting is adjourned for more than twenty-four hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to the directors, if any, who were not present at the time of the adjournment. Except as the Articles of Incorporation, these Bylaws and the General Corporation Law may otherwise provide, the act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be the act of the Board of Directors. Members of the Board of Directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another, and participation by such use shall be deemed to constitute presence in person at any such meeting. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, provided that any action which may be taken is approved by at least a majority of the required quorum for such meeting. - CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present and acting, the Vice Chairman of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the President, if any and present and acting, or any director chosen by the Board, shall preside. 5. REMOVAL OF DIRECTORS. The entire Board of Directors or any individual director may be removed from office without cause by approval of the holders of at least a majority of the shares provided, that unless the entire Board is removed, an individual director shall not be removed when the votes cast against such removal, or not consenting in writing to such removal, would be 10 11 sufficient to elect such director if voted cumulatively at an election of directors at which the same total number of votes were cast, or, if such action is taken by written consent, in lieu of a meeting, all shares entitled to vote were voted, and the entire number of directors authorized at the time of the director's most recent election were then being elected. If any or all directors are so removed, new directors may be elected at the same meeting or by such written consent. The Board of Directors may declare vacant the office of any director who has been declared of unsound mind by an order of court or convicted of a felony. 6. COMMITTEES. The Board of Directors, by resolution adopted by a majority of the authorized number of directors, may designate one or more committees, each consisting of two or more directors to serve at the pleasure of the Board of Directors. The Board of Directors may designate one or more directors as alternate members of any such committee, who may replace any absent member at any meeting of such committee. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have all the authority of the Board of Directors except such authority as may not be delegated by the provisions of the General Corporation Law. 7. WRITTEN ACTION. Any action required or permitted to be taken may be taken without a meeting if all of the members of the Board of Directors shall individually or collectively consent in writing to such action. Any such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such directors. ARTICLE III - OFFICERS The corporation shall have a Chairman of the Board or a President or it may have both, a Secretary, a Chief Financial Officer and such other officers with such titles and duties as may be necessary to enable it to sign instruments and share certificates. Subject to the foregoing, any number of offices may be held by the same person. The titles, powers, and duties of officers shall be set forth in the resolution or instrument choosing them. The Chairman of the Board, if any, and the Vice Chairman of the Board, if any, and/or the President, if any, the Secretary, the Chief Financial Officer, and any Vice President or other executive officer shall be chosen by the Board of Directors. Any Assistant Secretary, Assistant Treasurer or other junior officer shall be chosen by the Board of Directors or in the manner prescribed by the Board of Directors. The President or, if a President shall not have been chosen, the Chairman of the Board shall be the general manager and 11 12 chief executive officer of the corporation unless the resolution choosing him shall provide otherwise. The Treasurer shall be the chief financial officer unless the resolution choosing him shall provide otherwise. Unless otherwise provided in the resolution or instrument choosing the same, all officers shall be chosen for a term of office running until the meeting of the Board of Directors following the next annual meeting of shareholders and until their successors have been chosen and qualified. Any officer, or any agent chosen by the Board of Directors, may be removed by the Board whenever in its judgment the best interests of the corporation will be served thereby. ARTICLE IV - BOOKS AND RECORDS - STATUTORY AGENT The corporation shall keep at its principal executive office in the State of California or, if its principal executive office is not in the State of California, at its principal business office in the State of California, the original or a copy of the Bylaws as amended to date, which shall be open to inspection by the shareholders at all reasonable times during office hours. If the principal executive office of the corporation is outside the State of California, and, if the corporation has no principal business office in the State of California, it shall upon request of any shareholder furnish a copy of the Bylaws as amended to date. The corporation shall keep adequate and correct books and records of account and shall keep minutes of the proceedings of its shareholders, Board of Directors and committees, if any, of the Board of Directors. The corporation shall keep at its principal executive office, or at the office of its transfer agent or registrar, a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each. Such minutes shall be in written form. Such other books and records shall be kept either in written form or in any other form capable of being converted into written form. The name of the agent for service of process within the State of California is The Prentice-Hall Corporation System, Inc. ARTICLE V - CORPORATE SEAL The corporate seal shall set forth the name of the corporation and the State and date of incorporation. 12 13 ARTICLE VI - FISCAL YEAR The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors. ARTICLE VII - CONTROL OVER BYLAWS After the initial Bylaws of the corporation shall have been adopted by the incorporator or incorporators of the corporation, the Bylaws may be amended or repealed or new Bylaws may be adopted by the shareholders entitled to exercise a majority of the voting power or by the Board of Directors; provided, however, that the Board of Directors shall have no control over any Bylaw which fixes or changes the authorized number of directors of the corporation; provided further, that any control over the Bylaws herein vested in the Board of Directors shall be subject to the authority of the aforesaid shareholders to amend or repeal the Bylaws or to adopt new Bylaws; and provided further that any Bylaw amendment or new Bylaw which changes the minimum number of directors to fewer than three shall require authorization by the greater proportion of voting power of the shareholders as hereinbefore set forth. I HEREBY CERTIFY that the foregoing is a full, true and correct copy of the Bylaws of HB ACQUISITION CORP., a California corporation, adopted by the Incorporator and by the Board of Directors on October 13, 1995. WITNESS my hand and the seal of the corporation. Dated: October 19, 1995 /s/ William H. May ---------------------------------------- Secretary of HB Acquisition Corp. /s/ John A. Weiss ---------------------------------------- (SEAL) Assistant Secretary of HB Acquisition Corp. 13 EX-4.13 6 a70593ex4-13.txt EXHIBIT 4.13 1 EXHIBIT 4.13 Supplemental Indenture No. 1 This Supplemental Indenture No. 1, dated as of March 6, 1998 (the "Supplemental Indenture"), between Beckman Instruments, Inc. (together with its successors and assigns, the "Company") and The First National Bank of Chicago (the "Trustee"), as Trustee under the Indenture referred to below. W I T N E S S E T H WHEREAS, the Company and the Trustee have heretofore become parties to an Indenture, dated as of May 15, 1996 (as amended, supplemented, waived or otherwise modified, the "Indenture"); WHEREAS, pursuant to an officer's certificate dated May 30, 1996 (the "Officer's Certificate"), the Company established a series of securities providing for the issuance of an aggregate principal amount of $100,000,000 of 7.05% Debentures due June 1, 2026 (the "Debentures"); WHEREAS, pursuant to the Debentures, the Company is required, at the option of the Holder, to repay all or any part of such Holder's Debentures on June 1, 2006; WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder; NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the benefit of the Holders of the Securities as follows: ARTICLE I. DEFINITIONS SECTION 1.1. DEFINED TERMS. Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Indenture. The words "herein," "hereof" and "hereby" and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof. 1 2 ARTICLE II. AMENDMENTS TO CERTAIN PROVISIONS OF THE INDENTURE SECTION 2.1. AMENDMENT OF THE DEBENTURES. The second full paragraph on page 3 of the face of the Debentures is hereby deleted in its entirety and replaced with the following paragraph: "Subject to and upon compliance with the provisions set forth herein, each Holder shall have the right, at such Holder's option, to require the Company to repay, and if such right is exercised the Company shall repay, all or any part of such Holder's Securities on June 1, 2006 (the Repayment Date") at a price (the "Repayment Price") equal to 103.900% of the principal amount thereof, together with accrued interest to June 1, 2006." SECTION 2.2. AMENDMENT OF SECTION 101 OF THE INDENTURE. Section 101 of the Indenture is hereby amended to add the following definitions: "`Bank Indebtedness' means any and all Indebtedness or other amounts, whether outstanding on the Issue Date or thereafter incurred, payable under or in respect of the Credit Facility or any refundings, refinancings, restructurings, replacements, renewals, increases or extensions in respect thereof, including in each case (without limitation) principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Subsidiary whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees, other monetary obligations of any nature and all other amounts payable under or in respect of any of the foregoing." "`Capital Lease Obligation' of any Person means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease for property leased by such Person that would at such time be required to be capitalized on the balance sheet of such Person in accordance with GAAP." "`Capital Stock' of any Person means (i) in the case of a corporation, corporate stock, (ii) in the case of an association, limited liability company or business entity, any and all Equity Interests, (iii) in the case of a partnership, partnership interests (whether general or limited) and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any Preferred Stock." "`Commodity Price Protection Agreement' means any forward contract, commodity swap, commodity option or other similar financial agreement or 2 3 arrangement relating to, or the value which is dependent upon, fluctuations in commodity prices." "`Credit Agreement' means the credit agreement dated as of October 31, 1997, among the Company, the banks and other financial institutions party thereto from time to time, Citicorp USA, Inc., as agent, Citicorp Securities, Inc., as arranger, and Merrill Lynch & Co., as syndication agent, as such agreement may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agents and lenders or other agents and lenders or otherwise, and whether provided under the original Credit Agreement or otherwise)." "`Credit Facility' means the collective reference to the Credit Agreement, any notes and letters of credit issued pursuant thereto and any guarantees, security agreements, pledges, mortgages, letter of credit applications and other collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agents and lenders or other agents and lenders or otherwise, and whether provided under the original Credit Agreement or otherwise)." "`Currency Hedging Arrangements' means one or more of the following agreements which shall be entered into by one or more financial institutions: foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency values." "`Debenture Guarantee' means each Guarantee of the Debentures by the Debenture Guarantors and any Guarantee of the Debentures that may from time to time be executed and delivered pursuant to the terms of the Indenture. Each such Debenture Guarantee shall be in the form prescribed by the Indenture." "`Debenture Guarantors' means each of Coulter Corporation, Beckman Instruments (Naguabo) Inc., Hybritech Incorporated, SmithKline Diagnostics, Inc. and Coulter Leasing Corporation and any Subsidiary that has issued a Debenture Guarantee." "`Disqualified Stock' means (i) any Preferred Stock of any Subsidiary and (ii) any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or 3 4 otherwise, or is redeemable at the option of the holder thereof (other than upon a change of control of the Company in circumstances where the holders of the Debentures would have similar rights), in whole or in part on or prior to the stated maturity of any Debentures." "`Equity Interest' in any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) corporate stock or other equity participations, including limited liability company interests, in such Person." "`GAAP' means, with respect to any series of Securities, generally accepted accounting principles in the United States of America as in effect on the date of original issuance of such series of Securities, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statement by such other entity as approved by a significant segment of the United States accounting profession." "`Guarantee' means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person, and any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such Person (whether arising by virtue of partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided, however, that the term `Guarantee' shall not include endorsements for collection or deposit in the ordinary course of business. The term `Guarantee' used as a verb has a corresponding meaning." "`Indebtedness' means, with respect to any Person, without duplication, and whether or not contingent, (i) all indebtedness of such Person for borrowed money or which is evidenced by a note, bond, debenture or similar instrument, (ii) all obligations of such Person to pay the deferred or unpaid purchase price of property or services, which purchase price is due more than one year after the date of placing such property in service or taking delivery and title thereto or the completion of such service, (iii) all Capital Lease Obligations of such Person, (iv) all obligations of such Person in respect of letters of credit or bankers' acceptances issued or created for the account of such Person, (v) to the extent not otherwise included in this definition, all net obligations of such Person under all Interest Rate Agreement, Currency Hedging Arrangements or Commodity Price Protection Agreements of such Person, (vi) all liabilities of others of 4 5 the kind described in the preceding clause (i), (ii) or (iii) secured by any Lien on any property owned by such Person even if such Person has not assumed or otherwise become liable for the payment thereof, to the extent of the value of the property subject to such Lien, (vii) all Disqualified Stock issued by such Person, and (viii) to the extent not otherwise included, any Guarantee by such Person of any other Person's indebtedness or other obligations described in clauses (i) through (vii) above. `Indebtedness' of the Company and its Subsidiaries shall not include (i) current trade payables incurred in the ordinary course of business and payable in accordance with customary practices and (ii) non-interest bearing installment obligations and accrued liabilities incurred in the ordinary course of business which are not more than 90 days past due." "`Indenture Obligations' means the obligations of the Company and any other obligor under this Indenture or under the Securities, to pay principal of, premium, if any, and interest on the Securities when due and payable, whether at maturity, by acceleration, call for redemption or repurchase or otherwise , and all other amounts due or to become due under or in connection with this Indenture, the Securities or the Debenture Guarantees and the performance of all other obligations to the Trustee (including, but not limited to, payment of all amounts due the Trustee under Section 607 of the Indenture) and the Holders of the Securities of either series under this Indenture, the Securities and the Debenture Guarantees, according to the terms thereof." "`Interest Rate Agreements' means one or more of the following agreements which shall be entered into by one or more financial institutions: interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or other types of interest rate hedging agreements from time to time." "`Issue Date' means, with respect to the Company's 7.05% Debentures due 2026, March 6, 1998, and means, with respect to any other series of Securities, the date of original issuance of such series of Securities." "`Preferred Stock' as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over Capital Stock of any other class of such Person." "`Stated Maturity' means, when used in any supplemental indenture executed pursuant to Section 1011, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the 5 6 purchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred). `Stated Maturity' shall otherwise have the meaning set forth in the Indenture." "`Subsidiary' of a Person means, for purposes of Section 1011 and when used in any supplemental indenture executed pursuant thereto, a Person more than 50% of the outstanding voting stock or other Equity Interests of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting" stock or other Equity Interests means stock or other Equity Interests which ordinarily has voting power for the election of directors, trustees or similar managers, whether at all times or only so long as no senior class of stock or other Equity Interests has such voting power by reason of any contingency. `Subsidiary,' shall otherwise have the meaning set forth in the Indenture." SECTION 2.3. AMENDMENT OF ARTICLE TEN OF THE INDENTURE. Article Ten of the Indenture is hereby amended to add the following paragraph in its entirety immediately following the text of SECTION 1010: "SECTION 1011.Future Debenture Guarantors." "The Company may elect, at its option at any time, to have this Section 1011 apply to any Securities or any series of Securities, in accordance with the requirements set forth below in this Section. The Company hereby elects to have this Section 1011 apply to the Debentures." "The Company will cause each Subsidiary that Guarantees any Bank Indebtedness promptly to execute and deliver to the Trustee a supplemental indenture substantially in the form set forth in Exhibit A to this Indenture pursuant to which such Subsidiary will guarantee the Company's obligations under the Indenture and the Securities of each series, in accordance with and as further provided in such supplemental indenture. Concurrently therewith, the Company shall deliver to the Trustee an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee to the effect that such supplemental indenture has been duly authorized, executed and delivered by such Subsidiary and that, subject to the applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other laws now or hereafter in effect affecting creditors' rights or remedies generally and the general principles of equity, such supplemental indenture is a valid and binding agreement of such Subsidiary, enforceable against such Subsidiary in accordance with its terms." 6 7 SECTION 2.4. AMENDMENT OF THE INDENTURE ADDING EXHIBIT A. The Indenture is hereby amended to add Exhibit A hereto in its entirety, as the form of Exhibit A to the Indenture. ARTICLE III. MISCELLANEOUS SECTION 3.1. PARTIES. Nothing in this Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under any provision contained herein. SECTION 3.2. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS). SECTION 3.3. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture. SECTION 3.4. COUNTERPARTS. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement. SECTION 3.5. HEADINGS. The section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof. 7 8 IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the date first above written. BECKMAN INSTRUMENTS, INC. By: /s/ Dennis K. Wilson ----------------------------------- Name: Dennis K. Wilson Title: Vice President, Finance and Attest: Chief Financial Officer - -------------------------- THE FIRST NATIONAL BANK OF CHICAGO By: /s/ Leland Hansen ----------------------------------- Name: Leland Hansen Attest: Title: Assistant Vice President - -------------------------- S-1 9 Exhibit A Form of Supplemental Indenture in Respect of Debenture Guarantee This Supplemental Indenture, dated as of [___________] (this "Supplemental Indenture.), among [name of Debenture Guarantor(s)] (the "Debenture Guarantor(s)"), [Company] (together with its successors and assigns, the "Company"), each other then existing Subsidiary Guarantor under the Indenture referred to below, and [Trustee], as Trustee under the Indenture referred to below. W I T N E S S E T H WHEREAS, the Company and the Trustee have heretofore become parties to an Indenture, dated as of May 15, 1996 (as amended, supplemented, waived or otherwise modified, the "Indenture"); WHEREAS, Section 1011 of the Indenture provides that under certain circumstances the Company is required to cause a Debenture Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the Debenture Guarantor shall guarantee the Company's obligations under the a series of Securities pursuant to a Debenture Guarantee on the terms and conditions set forth herein; and WHEREAS, the Debenture Guarantors are executing this Supplemental Indenture pursuant to which the Debenture Guarantors will guarantee the Company's obligations under [name of series of Securities] (the "Securities") on the terms and conditions set forth herein; WHEREAS, pursuant to Sections 901 and 1011 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder; NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Debenture Guarantor, the Company, the other Debenture Guarantors, if any, and the Trustee mutually covenant and agree for the benefit of the Holders of the Securities as follows: ARTICLE I. DEFINITIONS SECTION 1.1. DEFINED TERMS. Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Indenture. The words "herein," "hereof" and "hereby" and A-1 10 other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof. ARTICLE II. AGREEMENT TO GUARANTEE SECTION 2.1. AGREEMENT TO GUARANTEE. The Debenture Guarantor hereby agrees to be bound by all applicable provisions of the Indenture as a Debenture Guarantor and to guarantee the Company's obligations under the Indenture and the Securities on the terms and subject to the conditions set forth below: SECTION 2.1.1 UNCONDITIONAL GUARANTEE. (a) Each Debenture Guarantor hereby jointly and severally and fully and unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee and its successors and assigns that: (1) the principal of, and premium, if any, and interest on, the Securities of each series will be duly and punctually paid in full when due, whether at maturity, by acceleration or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Securities of each series and all other obligations of the Company or the Debenture Guarantors to the Holders or the Trustee hereunder and thereunder (including fees, expenses or other) and all other Indenture Obligations will be promptly paid in full or performed, all in accordance with the terms hereof; and (2) in case of any extension of time of payment or renewal of any Securities of either series or any of such other Indenture Obligations with respect to the Securities of either series, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the Company to the Holders of Securities of either series, for whatever reason, each Debenture Guarantor will be obligated to pay or cause the payment of, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Securities of either series shall constitute an event of default under this Debenture Guarantee, and shall entitle the Holders of Securities of such series to accelerate the obligations of the Debenture Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. Each Debenture Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of this Indenture, the Securities of either series or the obligations of the Company or any other Debenture Guarantor to the Holders or the Trustee hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder of Securities with respect to any provisions hereof or thereof, any release of any other Debenture Guarantor, the recovery of any judgment against the Company, any action to A-2 11 enforce the same, whether or not a Debenture Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Debenture Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that (except as otherwise provided in Section 2.1.2) its Debenture Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and this Debenture Guarantee. This Debenture Guarantee is a guarantee of payment and not of collection. Each Debenture Guarantor further agrees that, as between it, on the one hand, and the Holders of Securities and the Trustee, on the other hand (1) subject to this Section 2.1, the maturity of the obligations guaranteed hereby may be accelerated as and to the extent provided in Article Five of the Indenture for the purposes of this Debenture Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any acceleration of such obligations as provided in Article Five of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by such Debenture Guarantor for the purpose of this Debenture Guarantee. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Indenture Obligations or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by any or all Debenture Guarantors of their liabilities and obligations under their respective Debenture Guarantees or under this Indenture. Until terminated in accordance with Section 2.1.2, this Debenture Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities of either series are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on such Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities of the relevant series shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. A-3 12 (b) Each Debenture Guarantor that makes a payment or distribution under this Debenture Guarantee shall have the right to seek contribution from any non-paying Debenture Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Debenture Guarantee. (c) Notwithstanding any of the foregoing, each Debenture Guarantor's liability under this Debenture Guarantee shall be limited to the maximum amount that would not result in this Debenture Guarantee constituting a fraudulent conveyance or fraudulent transfer under applicable law. (d) Each Debenture Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Debenture Guarantee, and the waiver set forth in Section 2.1.3, is knowingly made in contemplation of such benefits. SECTION 2.1.2. RELEASE OF A DEBENTURE GUARANTEE. (a) Any Debenture Guarantor shall be automatically and unconditionally released and discharged from all of its obligations under its Debenture Guarantee, and such Debenture Guarantee shall terminate, at any such time that such Debenture Guarantor is released and discharged from all of its obligations under all of its Guarantees in respect of Bank Indebtedness, unless such release results from payment under such Guarantee. Upon the delivery by the Company to the Trustee of an Officers' Certificate and, if requested by the Trustee, an Opinion of Counsel to the effect that the transaction giving rise to such release of such Debenture Guarantee was made by the Company in accordance with the provisions of this Indenture and the Securities, the Trustee shall execute any documents reasonably required in order to evidence such release and discharge of such Debenture Guarantor from its obligations under and termination of its Debenture Guarantee. (b) Upon the sale, exchange or transfer to any Person not an Affiliate of the Company of all of the Capital Stock held by the Company and its Subsidiaries in, or all or substantially all the assets of, a Debenture Guarantor (which sale, exchange or transfer is not prohibited by this Indenture), such Debenture Guarantor shall be automatically and unconditionally released and discharged from all its obligations under its Debenture Guarantee, and such Debenture Guarantee shall terminate. Upon such occurrence, the Trustee shall execute any documents reasonably required in order to evidence such release, discharge and termination in respect of such Debenture Guarantee. (c) Upon the release of any Debenture Guarantor from its Debenture Guarantee pursuant to the provisions of the Indenture, each other Debenture Guarantor A-4 13 not so released shall remain liable for the full amount of principal of, and premium, if any, and interest on, the Securities as and to the extent provided in this Section 2.1. (d) Each Debenture Guarantee shall terminate and cease to be of further effect upon (i) defeasance of the Company's obligations in accordance with Section 1402 of the Indenture and (ii) satisfaction and discharge of this Indenture in accordance with Section 401 of the Indenture. SECTION 2.1.3. WAIVER OF SUBROGATION. Each Debenture Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company's obligations under the Securities of either series and this Indenture or such Debenture Guarantor's obligations under its Debenture Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim or remedy of any Holder of Securities of either series against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, until this Indenture is discharged and all of the Securities of both series are discharged and paid in full. If any amount shall be paid to any Debenture Guarantor in violation of the preceding sentence and the Securities of the relevant series shall not have been paid in full, such amount shall have been deemed to have been paid to such Debenture Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Securities of such series, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon such Securities, whether matured or unmatured, in accordance with the terms of this Indenture. SECTION 2.1.4. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT REGARDING DISSOLUTION, ETC. Upon any payment or distribution of assets of any Debenture Guarantor referred to in this Section 2.1, the Trustee, subject to the provisions of Section 601 of the Indenture, and the Holders of Securities of either series shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to such Holders, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of other Indebtedness of such Debenture Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 2.1; provided that the foregoing shall apply only if such court has been fully apprised of the provisions of this Section 2.1. A-5 14 SECTION 2.1.5. SECTION 2.1 APPLICABLE TO PAYING AGENTS. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term `Trustee' as used in this Section 2.1 shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Section 2.1 in addition to or in place of the Trustee. SECTION 2.1.6. NO SUSPENSION OF REMEDIES. Nothing contained in this Section 2.1 shall limit the right of the Trustee or the Holders of Securities of either series to take any action to accelerate the maturity of such Securities pursuant to Article Five of the Indenture or to pursue any rights or remedies hereunder or under applicable law. ARTICLE III. MISCELLANEOUS SECTION 3.1. TERMINATION. The Debenture Guarantor's Debenture Guarantee shall terminate and be of no further force or effect, and the Debenture Guarantor shall be released and discharged from all obligations in respect of such Debenture Guarantee, as and when provided in Section 2.1.2. SECTION 3.2. PARTIES. Nothing in this Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of the Debenture Guarantor's Debenture Guarantee or any provision contained herein or in Section 2.1. SECTION 3.3. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS). SECTION 3.4. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE. A-6 15 Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture. SECTION 3.5. COUNTERPARTS. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement. SECTION 3.6. HEADINGS. The section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof. A-7 16 IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the date first above written. [THE COMPANY] By: ----------------------------------- Name: Attest: Title: - -------------------------- [THE TRUSTEE] By: ----------------------------------- Name: Attest: Title: - -------------------------- [NAME OF GUARANTOR] By: ----------------------------------- Name: Attest: Title: - -------------------------- [Add signature block for any other existing Debenture Guarantor] A-8 EX-4.14 7 a70593ex4-14.txt EXHIBIT 4.14 1 EXHIBIT 4.14 Supplemental Indenture No. 2 This Supplemental Indenture No. 2, dated as of March 6, 1998 (this "Supplemental Indenture"), among Beckman Instruments (Naguabo) Inc., a California corporation, Hybritech Incorporated, a California corporation, SmithKline Diagnostics, Inc., a Delaware corporation, Coulter Corporation, a Delaware corporation, and Coulter Leasing Corporation, an Illinois corporation (the "Debenture Guarantors"), Beckman Instruments, Inc., a Delaware corporation (together with its successors and assigns, the "Company"), and The First National Bank of Chicago (the "Trustee"), as Trustee under the Indenture referred to below. W I T N E S S E T H WHEREAS, the Company and the Trustee have heretofore become parties to an Indenture, dated as of May 15, 1996 (as amended, supplemented, waived or otherwise modified, the "Indenture"); WHEREAS, Section 1011 of the Indenture provides that under certain circumstances the Company is required to cause a Debenture Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the Debenture Guarantor shall guarantee the Company's obligations under the Debentures pursuant to a series of Securities on the terms and conditions set forth herein; and WHEREAS, the Debenture Guarantors are executing this Supplemental Indneture pursuant to which the Debenture Guarantors will guarantee the Company's obligations under its 7.05% Debentures due June 1, 2026 (the "Securities") on the terms and conditions set forth herein; and WHEREAS, pursuant to Sections 901 and 1011 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder; NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Debenture Guarantor, the Company, the other Debenture Guarantors, if any, and the Trustee mutually covenant and agree for the benefit of the Holders of the Securities as follows: 1 2 ARTICLE I. DEFINITIONS SECTION 1.1. DEFINED TERMS. Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Indenture. The words "herein," "hereof" and "hereby" and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof. ARTICLE II. AGREEMENT TO GUARANTEE SECTION 2.1. AGREEMENT TO GUARANTEE. The Debenture Guarantor hereby agrees to be bound by all applicable provisions of the Indenture as a Debenture Guarantor and to guarantee the Company's obligations under the Indenture and the Securities on the terms and subject to the conditions set forth below: SECTION 2.1.1 UNCONDITIONAL GUARANTEE. (a) Each Debenture Guarantor hereby jointly and severally and fully and unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee and its successors and assigns that: (1) the principal of, and premium, if any, and interest on, the Securities of each series will be duly and punctually paid in full when due, whether at maturity, by acceleration or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Securities of each series and all other obligations of the Company or the Debenture Guarantors to the Holders or the Trustee hereunder and thereunder (including fees, expenses or other) and all other Indenture Obligations will be promptly paid in full or performed, all in accordance with the terms hereof; and (2) in case of any extension of time of payment or renewal of any Securities of either series or any of such other Indenture Obligations with respect to the Securities of either series, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the Company to the Holders of Securities of either series, for whatever reason, each Debenture Guarantor will be obligated to pay or cause the payment of, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Securities of either series shall constitute an event of default under this Debenture Guarantee, and shall entitle the Holders of Securities of such series to accelerate the obligations of the Debenture Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. 2 3 Each Debenture Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of this Indenture, the Securities of either series or the obligations of the Company or any other Debenture Guarantor to the Holders or the Trustee hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder of Securities with respect to any provisions hereof or thereof, any release of any other Debenture Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a Debenture Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Debenture Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that (except as otherwise provided in Section 2.1.2) its Debenture Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and this Debenture Guarantee. This Debenture Guarantee is a guarantee of payment and not of collection. Each Debenture Guarantor further agrees that, as between it, on the one hand, and the Holders of Securities and the Trustee, on the other hand (1) subject to this Section 2.1, the maturity of the obligations guaranteed hereby may be accelerated as and to the extent provided in Article Five of the Indenture for the purposes of this Debenture Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any acceleration of such obligations as provided in Article Five of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by such Debenture Guarantor for the purpose of this Debenture Guarantee. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Indenture Obligations or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by any or all Debenture Guarantors of their liabilities and obligations under their respective Debenture Guarantees or under this Indenture. Until terminated in accordance with Section 2.1.2, this Debenture Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities of either series are, pursuant to applicable law, rescinded or reduced in amount, or 3 4 must otherwise be restored or returned by any obligee on such Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities of the relevant series shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. (b) Each Debenture Guarantor that makes a payment or distribution under this Debenture Guarantee shall have the right to seek contribution from any non-paying Debenture Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Debenture Guarantee. (c) Notwithstanding any of the foregoing, each Debenture Guarantor's liability under this Debenture Guarantee shall be limited to the maximum amount that would not result in this Debenture Guarantee constituting a fraudulent conveyance or fraudulent transfer under applicable law. (d) Each Debenture Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Debenture Guarantee, and the waiver set forth in Section 2.1.3, is knowingly made in contemplation of such benefits. SECTION 2.1.2. RELEASE OF A DEBENTURE GUARANTEE. (a) Any Debenture Guarantor shall be automatically and unconditionally released and discharged from all of its obligations under its Debenture Guarantee, and such Debenture Guarantee shall terminate, at any such time that such Debenture Guarantor is released and discharged from all of its obligations under all of its Guarantees in respect of Bank Indebtedness, unless such release results from payment under such Guarantee. Upon the delivery by the Company to the Trustee of an Officers' Certificate and, if requested by the Trustee, an Opinion of Counsel to the effect that the transaction giving rise to such release of such Debenture Guarantee was made by the Company in accordance with the provisions of this Indenture and the Securities, the Trustee shall execute any documents reasonably required in order to evidence such release and discharge of such Debenture Guarantor from its obligations under and termination of its Debenture Guarantee. (b) Upon the sale, exchange or transfer to any Person not an Affiliate of the Company of all of the Capital Stock held by the Company and its Subsidiaries in, or all or substantially all the assets of, a Debenture Guarantor (which sale, exchange or transfer is not prohibited by this Indenture), such Debenture Guarantor shall be automatically and unconditionally released and discharged from all its obligations under its Debenture Guarantee, and such Debenture Guarantee shall terminate. Upon such 4 5 occurrence, the Trustee shall execute any documents reasonably required in order to evidence such release, discharge and termination in respect of such Debenture Guarantee. (c) Upon the release of any Debenture Guarantor from its Debenture Guarantee pursuant to the provisions of the Indenture, each other Debenture Guarantor not so released shall remain liable for the full amount of principal of, and premium, if any, and interest on, the Securities as and to the extent provided in this Section 2.1. (d) Each Debenture Guarantee shall terminate and cease to be of further effect upon (i) defeasance of the Company's obligations in accordance with Section 1402 of the Indenture and (ii) satisfaction and discharge of this Indenture in accordance with Section 401 of the Indenture. SECTION 2.1.3. WAIVER OF SUBROGATION. Each Debenture Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company's obligations under the Securities of either series and this Indenture or such Debenture Guarantor's obligations under its Debenture Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim or remedy of any Holder of Securities of either series against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, until this Indenture is discharged and all of the Securities of both series are discharged and paid in full. If any amount shall be paid to any Debenture Guarantor in violation of the preceding sentence and the Securities of the relevant series shall not have been paid in full, such amount shall have been deemed to have been paid to such Debenture Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Securities of such series, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon such Securities, whether matured or unmatured, in accordance with the terms of this Indenture. SECTION 2.1.4. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT REGARDING DISSOLUTION, ETC. Upon any payment or distribution of assets of any Debenture Guarantor referred to in this Section 2.1, the Trustee, subject to the provisions of Section 601 of the Indenture, and the Holders of Securities of either series shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in 5 6 bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to such Holders, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of other Indebtedness of such Debenture Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 2.1; provided that the foregoing shall apply only if such court has been fully apprised of the provisions of this Section 2.1. SECTION 2.1.5. SECTION 2.1 APPLICABLE TO PAYING AGENTS. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term `Trustee' as used in this Section 2.1 shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Section 2.1 in addition to or in place of the Trustee. SECTION 2.1.6. NO SUSPENSION OF REMEDIES. Nothing contained in this Section 2.1 shall limit the right of the Trustee or the Holders of Securities of either series to take any action to accelerate the maturity of such Securities pursuant to Article Five of the Indenture or to pursue any rights or remedies hereunder or under applicable law. ARTICLE III. MISCELLANEOUS SECTION 3.1. TERMINATION. The Debenture Guarantor's Debenture Guarantee shall terminate and be of no further force or effect, and the Debenture Guarantor shall be released and discharged from all obligations in respect of such Debenture Guarantee, as and when provided in Section 2.1.2. SECTION 3.2. PARTIES. Nothing in this Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of the Debenture Guarantor's Debenture Guarantee or any provision contained herein or in Section 2.1. 6 7 SECTION 3.3. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS). SECTION 3.4. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture. SECTION 3.5. COUNTERPARTS. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement. SECTION 3.6. HEADINGS. The section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof. 7 8 IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the date first above written. BECKMAN INSTRUMENTS, INC. By: /s/ Dennis K. Wilson ----------------------------------- Name: Dennis K. Wilson Title: Vice President, Finance and Attest: Chief Financial Officer - -------------------------- THE FIRST NATIONAL BANK OF CHICAGO By: /s/ Leland Hansen ----------------------------------- Name: Leland Hansen Attest: Title: Assistant Vice President - -------------------------- BECKMAN INSTRUMENTS (NAGUABO) INC. By: /s/ William H. May ----------------------------------- Name: William H. May Attest: Title: Vice President and Secretary - -------------------------- HYBRITECH INCORPORATED By: /s/ William H. May ----------------------------------- Name: William H. May Attest: Title: Vice President and Secretary - -------------------------- S-1 9 SMITHKLINE DIAGNOSTICS, INC. By: /s/ Dennis K. Wilson ----------------------------------- Name: Dennis K. Wilson Attest: Title: Vice President, Finance and Chief Financial Officer - -------------------------- COULTER CORPORATION By: /s/ William H. May ----------------------------------- Name: William H. May Attest: Title: Vice President and Assistant Secretary - -------------------------- COULTER LEASING CORPORATION By: /s/ William H. May ----------------------------------- Name: William H. May Attest: Title: Vice President and Assistant Secretary - -------------------------- S-2 EX-5.1 8 a70593ex5-1.txt EXHIBIT 5.1 1 EXHIBIT 5.1 OPINION OF LATHAM & WATKINS [Latham & Watkins letterhead] April 13, 2001 Beckman Coulter, Inc. 4300 N. Harbor Blvd. Fullerton, California 92834 Re: $500,000,000 Aggregate Offering Price of Securities of Beckman Coulter, Inc. Ladies and Gentlemen: At your request, we have examined the registration statement on Form S-3 (the "Registration Statement") being filed by Beckman Coulter, Inc. (the "Company"), and Coulter Corporation and Hybritech Incorporated (together, the "Guarantors"), with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), relating to the offering from time to time, as set forth in the prospectus contained in the Registration Statement (the "Prospectus") and as shall be set forth in one or more supplements to the Prospectus (each, a "Prospectus Supplement"), by the Company of up to $500,000,000 aggregate offering price (as such amount may be increased pursuant to a registration statement filed with the Commission under Rule 462(b) in connection with the Registration Statement) of (i) debt securities (the "Debt Securities"), (ii) shares of preferred stock, par value $.01 per share (the "Preferred Stock"), (iii) shares of Preferred Stock represented by depositary shares (the "Depositary Shares"), (iv) shares of common stock, par value $.01 per share (the "Common Stock") or (v) warrants to purchase Debt Securities, Preferred Stock, Depositary Shares or Common Stock (collectively, the "Warrants"). The Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Warrants are collectively referred to as the "Securities." The Registration Statement provides that Debt Securities may be convertible into shares of Common Stock or Preferred Stock and Preferred Stock may be convertible into shares of Common Stock. The Debt Securities may be guaranteed by one or more of the Guarantors (the "Guarantees"). The Debt Securities will be issued pursuant to one or more indentures, the forms of which are attached as exhibits to the Registration Statement, by and among the Company and a trustee identified therein (the "Trustee"), as the same may be amended or supplemented from time to time (each, an "Indenture"). The Depositary Shares will be issued under one or more deposit agreements (each, a "Deposit Agreement"), by and among the Company and a financial institution identified therein as the depositary (each, a "Depositary"). The Company may issue receipts ("Depositary Receipts") for Depositary Shares, each of which will represent a fractional share of Preferred Stock represented by Depositary Shares. The Warrants will be issued under 2 one or more warrant agreements (each, a "Warrant Agreement"), by and among the Company and a financial institution identified therein as warrant agent (each, a "Warrant Agent"). In our capacity as your counsel in connection with such registration, we are familiar with the proceedings taken and proposed to be taken by the Company and the Guarantors in connection with the authorization and issuance of the Securities and any Guarantees and, for the purposes of this opinion, have assumed such proceedings will be timely completed in the manner presently proposed and that the terms of each issuance will otherwise be in compliance with law. As such counsel, we have examined such matters of fact and questions of law we considered appropriate for purposes of rendering the opinions expressed below. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to us as copies. We have been furnished with, and with your consent have relied upon, certificates of officers of the Company and the Guarantors with respect to certain factual matters. In addition, we have obtained and relied upon such certificates and assurances from public officials as we have deemed necessary. We are opining herein as to the effect on the subject transaction only of the federal laws of the United States, the General Corporation Law of the State of Delaware and the internal laws of the State of New York, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of Delaware, any other laws or as to any matters of municipal law or the laws of any local agencies within any state. Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof: (1) When the specific terms of a particular Debt Security have been duly established in accordance with an Indenture and applicable law, any such Debt Security has been duly authenticated by the Trustee and duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms of the Indenture and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, such Debt Security will constitute a valid and binding obligation of the Company. (2) When the specific terms of a particular Guarantee and the corresponding Debt Security have been duly established in accordance with an Indenture and applicable law, any such Debt Security has been duly authenticated by the Trustee and duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms of the Indenture and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, and any such Guarantee has been duly executed and delivered on behalf of the applicable Guarantor in accordance with the terms of the Indenture and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, such Guarantee will constitute a valid and binding obligation of each such Guarantor. 3 (3) The Company has the authority pursuant to its Amended and Restated Certificate of Incorporation (the "Certificate") to issue up to 10,000,000 shares of Preferred Stock. When a series of Preferred Stock has been duly established in accordance with the terms of the Company's Certificate and applicable law, and upon adoption by the Board of Directors of the Company of a resolution in form and content as required by applicable law and upon issuance and delivery of and payment of legal consideration in excess of the par value thereof for shares of such series in the manner contemplated by the Registration Statement and/or the applicable Prospectus Supplement and by such resolution, such shares of such series of Preferred Stock will be validly issued, fully paid and nonassessable. (4) When the specific terms of a particular issuance of Depositary Shares have been duly established in accordance with a Deposit Agreement and applicable law, and when the Depositary Receipts in the form contemplated and authorized by the Deposit Agreement have been duly executed and delivered by the Depositary and delivered to and paid for by the purchasers thereof in the manner contemplated by the Registration Statement and/or the applicable Prospectus Supplement, and when all corporate action necessary for the issuance of such Depositary Shares and the underlying Preferred Stock has been taken and the Company has received legal consideration in excess of the par value of the underlying Preferred Stock for the issuance thereof, such Depositary Shares will be validly issued and will entitle the holders thereof to the rights specified in the Depositary Receipts and such Deposit Agreement for such Depositary Receipts. (5) The Company has authority pursuant to its Certificate to issue up to 150,000,000 shares of Common Stock. Upon adoption by the Board of Directors of the Company of a resolution in form and content as required by applicable law and upon issuance and delivery of and payment of legal consideration in excess of the par value thereof for such shares in the manner contemplated by the Registration Statement and/or the applicable Prospectus Supplement and by such resolution, such shares of Common Stock will be validly issued, fully paid and nonassessable. (6) When the specific terms of a particular issuance of Warrants have been duly established by a Warrant Agreement in accordance with applicable law, duly authenticated by the Warrant Agent and duly executed and delivered by the Company against payment therefor in accordance with the terms of the Warrant Agreement and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, the Warrants will constitute valid and binding obligations of the Company. The opinions set forth in paragraphs (1), (2) and (6) above are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in 4 effect relating to or affecting the rights or remedies of creditors; (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought and (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy. We express no opinion (i) concerning the enforceability of the waiver of rights or defenses contained in Section 515 of the Indenture or (ii) with respect to whether acceleration of Debt Securities and any Guarantees may affect the collectibility of any portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon. To the extent that the obligations of the Company and the Guarantors under each Indenture may be dependent upon such matters, we assume for purposes of this opinion that each Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that each Trustee is duly qualified to engage in the activities contemplated by the Indenture; that each Indenture has been duly authorized, executed and delivered by the applicable Trustee and constitutes the legal, valid and binding obligation of such Trustee, enforceable against such Trustee in accordance with its terms; that each Trustee is in compliance, generally and with respect to acting as a trustee under the applicable Indenture, with all applicable laws and regulations; and that each Trustee has the requisite organizational and legal power and authority to perform its obligations under the applicable Indenture. To the extent that the obligations of the Company under each Deposit Agreement may be dependent upon such matters, we assume for purposes of this opinion that the Depositary is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that the Depositary is duly qualified to engage in the activities contemplated by the Deposit Agreement; that the Deposit Agreement has been duly authorized, executed and delivered by the Depositary and constitutes the legal, valid and binding obligation of the Depositary, enforceable against the Depositary in accordance with its terms; that the Depositary is in compliance, generally and with respect to acting as a Depositary under the Deposit Agreement, with all applicable laws and regulations; and that the Depositary has the requisite organizational and legal power and authority to perform its obligations under the Deposit Agreement. To the extent that the obligations of the Company under each Warrant Agreement may be dependent upon such matters, we assume for purposes of this opinion that the Warrant Agent is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that the Warrant Agent is duly qualified to engage in the activities contemplated by the Warrant Agreement; that the Warrant Agreement has been duly authorized, executed and delivered by the Warrant Agent and constitutes the legal, valid and binding obligation of the Warrant Agent, enforceable against the Warrant Agent in accordance with its terms; that the Warrant Agent is in compliance, generally and with respect to acting as a Warrant Agent under the Warrant Agreement, with all applicable laws and regulations; and that the Warrant Agent has the requisite organizational and legal power and authority to perform its obligations under the Warrant Agreement. 5 We consent to your filing this opinion as an exhibit to the Registration Statement, to the incorporation by reference of this opinion into any registration statement of the Company filed pursuant to Rule 462(b) of the Securities Act in relation to the Registration Statement, and to the reference to our firm under the caption "Legal Matters" in the prospectus included therein. Very truly yours, /s/ Latham & Watkins EX-12.1 9 a70593ex12-1.txt EXHIBIT 12.1 1 EXHIBIT 12.1 STATEMENT REGARDING CALCULATION OF RATIOS
YEAR ENDED DECEMBER 31, ------------------------------------------------------- RATIO OF EARNINGS TO FIXED CHARGES: 2000 1999 1998 1997 1996 ($ in millions) Earnings (loss) before income taxes .......................... $181.9 $154.7 $ 46.6 $(251.9) $111.5 Add: Interest Expense ........................................ 71.9 73.8 87.8 29.4 18.1 Portion of rents representative of interest factor ...... 24.4 23.4 17.9 10.6 9.9 ----- ----- ----- ------ ----- Earnings (loss) as adjusted ............................. 278.2 251.9 152.3 (211.9) 139.5 Fixed charges: Interest Expense ........................................ 71.9 73.8 87.8 29.4 18.1 Portion of rents representative of interest factor ...... 24.4 23.4 17.9 10.6 9.9 ----- ----- ----- ------ ----- Total fixed charges ..................................... 96.3 97.2 105.7 40.0 28.0 RATIO OF EARNINGS TO FIXED CHARGES ........................... 2.9X 2.6X 1.4X -- 5.0X
Earnings were inadequate to cover fixed charges for the year ended December 31, 1997. The coverage deficiency was $251.9 million. EX-23.2 10 a70593ex23-2.txt EXHIBIT 23.2 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the use of our report incorporated herein by reference and to the reference to our firm under the heading "Experts" in the prospectus. /s/ KPMG LLP Orange County, California April 13, 2001 EX-25.1 11 a70593ex25-1.txt EXHIBIT 25.1 1 EXHIBIT 25.1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE Check if an application to determine eligibility of a Trustee pursuant to Section 305 (b)(2) ____ ------------------------ CITIBANK, N.A. (Exact name of trustee as specified in its charter) 13-5266470 (I.R.S. employer identification no.) 399 Park Avenue, New York, New York 10043 (Address of principal executive office) (Zip Code) ----------------------- BECKMAN COULTER, INC. (Exact name of obligor as specified in its charter) Delaware 95-104-0600 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 4300 N. Harbor Boulevard Fullerton, California 92834-3100 (Address of principal executive offices) (Zip Code) ------------------------- Senior Indenture (Title of the indenture securities) 2 Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject.
Name Address ---- ------- Comptroller of the Currency Washington, D.C. Federal Reserve Bank of New York New York, NY 33 Liberty Street New York, NY Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as exhibits hereto. Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983) Exhibit 2 - Copy of certificate of authority of the Trustee to commence business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577). Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519) Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to Registration Statement No. 33-34988) Exhibit 5 - Not applicable. 3 Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement No. 33-19227.) Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as June 30, 2000- attached) Exhibit 8 - Not applicable. Exhibit 9 - Not applicable. ------------------ SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York and State of New York, on the _11th day of ,April 2001. CITIBANK, N.A. By /s/ Donna Marie White --------------------------------- Donna Marie White Assistant Vice President 4 Charter No. 1461 Comptroller of the Currency Northeastern District REPORT OF CONDITION CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF Citibank, N.A. of New York in the State of New York, at the close of business on December 31, 2000, published in response to call made by Comptroller of the Currency, under Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of the Currency Northeastern District. ASSETS Thousands of dollars Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin ............................... $ 9,321,000 Interest-bearing balances ........................................................ 17,968,000 Held-to-maturity securities ...................................................... 0 Available-for-sale securities .................................................... 42,056,000 Federal funds sold and securities purchased under agreements to resell ........... 4,408,000 Loans and lease financing receivables: Loans and Leases, net of unearned income .. $ 247,391,000 LESS: Allowance for loan and lease losses ........................................ 4,590,000 Loans and leases, net of unearned income, allowance, and reserve ................. 242,801,000 Trading assets ................................................................... 37,616,000 Premises and fixed assets (including capitalized leases) ......................... 4,063,000 Other real estate owned .......................................................... 315,000 Investments in unconsolidated subsidiaries and associated companies .............. 974,000 Customers' liability to this bank on acceptances outstanding ..................... 1,388,000 Intangible assets ................................................................ 5,914,000 Other assets ..................................................................... 15,282,000 TOTAL ASSETS ..................................................................... $ 382,106,000 LIABILITIES Deposits: In domestic offices .............................................................. $ 57,389,000 Noninterest-bearing .............................................................. $ 17,484,000 Interest-bearing ................................................................. 39,905,000 In foreign offices, Edge and Agreement subsidiaries, and IBFs .................... 214,975,000 Noninterest-bearing .............................................................. 13,977,000 Interest-bearing ................................................................. 200,998,000 Federal funds purchased and securities sold under agreements to repurchase ....... 6,851,000 Demand notes issued to the U.S. Treasury ......................................... 0 Trading liabilities .............................................................. 26,803,000 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less ................................. 15,184,000 With a remaining maturity of more than one year through three years ........... 4,325,000 With a remaining maturity of more than three years ............................ 2,651,000 Bank's liability on acceptances executed and outstanding ...................... 1,452,000
5 Subordinated notes and debentures ............................................. 8,525,000 Other liabilities ............................................................. 16,740,000 TOTAL LIABILITIES ............................................................. $ 354,895,000 EQUITY CAPITAL Perpetual preferred stock and related surplus ................................. 0 Common stock .................................................................. $ 751,000 Surplus ....................................................................... 11,354,000 Undivided profits and capital reserves ........................................ 15,903,000 Net unrealized holding gains (losses) on available-for-sale securities ........ 70,000 Accumulated net gains (losses) on cash flow hedges ............................ 0 Cumulative foreign currency translation adjustments ........................... (867,000) TOTAL EQUITY CAPITAL .......................................................... $ 27,211,000 TOTAL LIABILITIES AND EQUITY CAPITAL .......................................... $ 382,106,000
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief. ROGER W. TRUPIN CONTROLLER We, the undersigned directors, attest to the correctness of this Report of Condition. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct. ALAN S. MACDONALD WILLIAM R. RHODES VICTOR J. MENEZES DIRECTORS EX-25.2 12 a70593ex25-2.txt EXHIBIT 25.2 1 EXHIBIT 25.2 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ---------------------------- BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION (EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER) A NATIONAL BANKING ASSOCIATION 31-0838515 (I.R.S. EMPLOYER IDENTIFICATION NUMBER) 100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) BANK ONE TRUST COMPANY, N.A. ONE NORTH STATE STREET, 9TH FLOOR CHICAGO, ILLINOIS 60602 ATTN: SANDRA L. CARUBA, VICE PRESIDENT AND SENIOR COUNSEL, (312) 336-9436 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) ----------------------------- BECKMAN COULTER, INC. (EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER) DELAWARE 95-1040600 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 4300 N. HARBOR BOULEVARD 92834-3100 FULLERTON, CALIFORNIA (ZIP CODE) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) DEBT SECURITIES (TITLE OF INDENTURE SECURITIES) ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE: (a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT. 2 Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington D.C. (b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. No such affiliation exists with the trustee. ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY. 1. A copy of the articles of association of the trustee now in effect.* 2. A copy of the certificate of authority of the trustee to commence business.* 3. A copy of the authorization of the trustee to exercise corporate trust powers.* 4. A copy of the existing by-laws of the trustee.* 5. Not Applicable. 6. The consent of the trustee required by Section 321(b) of the Act. 2 3 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. Not Applicable. 9. Not Applicable. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and State of Illinois, on the 11th day of April, 2001. BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE BY /s/ SANDRA L. CARUBA ------------------------------- SANDRA L. CARUBA VICE PRESIDENT * Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One Trust Company, National Association, filed as Exhibit 25 to the Registration Statement on Form S-4 of U S WEST Communications, Inc., filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-32124). 3 4 EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT April 11, 2001 Securities and Exchange Commission Washington, D.C. 20549 Ladies and Gentlemen: In connection with the qualification of an indenture between Beckman Coulter, Inc. and Bank One Trust Company, National Association, as Trustee, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION BY: /s/ SANDRA L. CARUBA ------------------------------- SANDRA L. CARUBA VICE PRESIDENT 4 5 EXHIBIT 7 Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/00 State #: 391581 FFIEC 032 Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1 City, State Zip: Columbus, OH 43271 Transit #: 04400003
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 2000 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter. SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS C300 ---- ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): RCON ---- a. Noninterest-bearing balances and currency and coin(1) ............ 0081 64,969 1.a b. Interest-bearing balances(2) ..................................... 0071 0 1.b 2. Securities a. Held-to-maturity securities(from Schedule RC-B, column A) ........ 1754 0 2.a b. Available-for-sale securities (from Schedule RC-B, column D) ..... 1773 4,286 2.b 3. Federal funds sold and securities purchased under agreements to resell .............................................................. 1350 1,056,754 3. 4. Loans and lease financing receivables: RCON ---- a. Loans and leases, net of unearned income (from Schedule RC-C) ............................................................ 2122 346,052 4.a b. LESS: Allowance for loan and lease losses ........................ 3123 372 4.b c. LESS: Allocated transfer risk reserve ............................ 3128 0 4.c RCON ---- d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b and 4.c) ............................. 2125 345,680 4.d 5. Trading assets (from Schedule RD-D) ................................. 3545 0 5. 6. Premises and fixed assets (including capitalized leases) ............ 2145 21,835 6. 7. Other real estate owned (from Schedule RC-M) ........................ 2150 0 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ...................................... 2130 0 8. 9. Customers' liability to this bank on acceptances outstanding ........ 2155 0 9. 10. Intangible assets (from Schedule RC-M) .............................. 2143 13,697 10. 11. Other assets (from Schedule RC-F) ................................... 2160 131,390 11. 12. Total assets (sum of items 1 through 11) ............................ 2170 1,638,611 12.
- ---------- (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. 6 Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/00 State #: 391581 FFIEC 032 Address: 100 East Broad Street Vendor ID: D Cert #" 21377 Page RC-2 City, State Zip: Columbus, OH 43271 Transit #: 04400003
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN THOUSANDS LIABILITIES 13. Deposits: RCON --------- a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part 1) ...................................... 2200 1,410,826 13.a (1) Noninterest-bearing(1) ....................................... 6631 830,363 13.a1 (2) Interest-bearing ............................................. 6636 580,463 13.a2 b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II) ............................... (1) Noninterest bearing .......................................... (2) Interest-bearing ............................................. 14. Federal funds purchased and securities sold under agreements to repurchase: RCFD 2800 14 15. a. Demand notes issued to the U.S. Treasury ......................... RCON 2840 15.a b. Trading Liabilities(from Schedule RC-D) ............................................................ RCFD 3548 0 15.b RCON --------- 16. Other borrowed money: a. With original maturity of one year or less ....................... 2332 16.a b. With original maturity of more than one year .................... A547 16.b c. With original maturity of more than three years .................. A548 16.c 17. Not applicable 18. Bank's liability on acceptance executed and outstanding ............. 2920 18. 19. Subordinated notes and debentures ................................... 3200 19. 20. Other liabilities (from Schedule RC-G) .............................. 2930 75,186 20. 21. Total liabilities (sum of items 13 through 20) ...................... 2948 1,486,012 21. 22. Not applicable EQUITY CAPITAL 23. Perpetual preferred stock and related surplus ....................... 3838 23. 24. Common stock ........................................................ 3230 800 24. 25. Surplus (exclude all surplus related to preferred stock) ............ 3839 45,157 25. 26. a. Undivided profits and capital reserves ........................... 3632 106,620 26.a b. Net unrealized holding gains (losses) on available-for-sale securities ...................................................... 8434 22 26.b c. Accumulated net gains (losses) on cash flow hedges ............... 4336 0 26.c 27. Cumulative foreign currency translation adjustments ................. 28. Total equity capital (sum of items 23 through 27) ................... 3210 152,599 28. 29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, and 28) ............................... 3300 1,638,611 29.
Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most --------------------- comprehensive level of auditing work performed N/A Number for the bank by independent external auditors as M.1. of any date during 1996 ......... RCFD 6724 .... --------------------- 1 = Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank's parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Directors' examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 4 = Directors' examination of the bank performed by other external auditors (may be required by state chartering authority) 5 = Review of the bank's financial statements by external auditors 6 = Compilation of the bank's financial statements by external auditors 7 = Other audit procedures (excluding tax preparation work) 8 = No external audit work - ---------- (1) Includes total demand deposits and noninterest-bearing time and savings deposits. -----END PRIVACY-ENHANCED MESSAGE-----