Exhibit 10.1


 


AGREEMENT


 


This Agreement (“Agreement”)
is dated as of January 1, 2005, and is entered into by and between                                       
(“Employee”) and Beckman Coulter, Inc., a Delaware corporation (“Beckman”).
Employee and Beckman hereby agree to the following terms and conditions:


 


1.                                       Purpose
of Agreement.  The purpose of this
Agreement is to provide that, in the event of a “Change in Control,” Employee
may become entitled to receive additional benefits in the event of his termination.
It is believed that the existence of these potential benefits will benefit
Beckman by discouraging turnover among Employees with Agreements and causing
such Employees to be more able to respond to the possibility of a Change in
Control without being influenced by the potential effect of a Change in Control
on their job security.


 


2.                                       Change
in Control.  As used in this
Agreement, the phrase “Change in Control” shall mean the following and shall be
deemed to occur if any of the following events occur:


 


(a)                                  Any
“person,” as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), is or becomes
the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of Beckman representing 15% or more
of the combined voting power of Beckman’s then outstanding voting securities,
provided that, no Change in Control shall be deemed to occur solely because a
corporation (the “seller”) owns 15% or more of Beckman voting securities if
such ownership is only a transitory step in a reorganization whereby Beckman
purchases the assets of the seller for Beckman voting securities and the seller
liquidates shortly thereafter; or if the “person” described above is an underwriter
or underwriting syndicate that has acquired ownership of the Company’s
securities solely in connection with a public offering of the Company’s
securities or is an employee benefit plan maintained by the Company or any of
its subsidiaries.


 


(b)                                 Individuals
who, as of the date hereof, constitute the Board of Directors of Beckman (the “Incumbent
Board”), cease for any reason to constitute at least a majority of the Board of
Directors, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by Beckman’s stockholders,
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board (other than an election or nomination of an individual
whose initial


 


1





















 


assumption
of office is in connection with an actual or threatened election contest
relating to the election of the directors of Beckman, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
shall be deemed to be a member of the Incumbent Board of Beckman;


 


(c)                                  The
consummation of a merger or consolidation with any other corporation, other
than


 


(1)                                  a
merger or consolidation which would result in the voting securities of Beckman
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of another
entity) more than 85% of the combined voting power of the voting securities of
Beckman or such other entity outstanding immediately after such merger or
consolidation,


 


(2)                                  a
merger or consolidation affected to implement a recapitalization of Beckman (or
similar transaction) in which no person acquires 15% or more of the combined
voting power of Beckman’s then outstanding voting securities; or


 


(d)                                 The
stockholders of Beckman approve a plan of complete liquidation of Beckman or an
agreement for the sale or disposition by Beckman of all or substantially all of
Beckman’s assets.


 


Furthermore,
even though a transaction meets the definition of a Change in Control set forth
in clause (a) of the first sentence of this section, such transaction
shall not constitute a Change in Control under this Agreement if subsequent to
the transaction and at all times thereafter at least 70% of the voting power of
Beckman’s then outstanding voting securities remain widely held by members of
the general public.


 


In
addition, the merger or consolidation which would constitute a Change in
Control under clause (c) of the first sentence of this section shall
not be treated as a Change in Control if three criteria are met:  (1) after the merger or consolidation,
persons who owned Beckman voting securities prior to the merger or
consolidation own at least 60% of the voting securities of the surviving
entity; (2) the voting securities not owned by former Beckman shareholders
are widely held by the general public; and (3) the Organization and
Compensation Committee (“the Committee”) resolves, prior to the approval that
would otherwise constitute a Change in Control under clause (c), that no Change
in Control shall be treated as having occurred. 
For the purpose of this paragraph, the former Beckman shareholders shall
be treated as owning the shares owned by the entity into which their shares are
converted so that, for example, if the reorganization causes Beckman to become
a wholly-owned subsidiary of another entity and the former Beckman shareholders
own at least 60% of that entity, then the share ownership requirement shall be
considered to have been satisfied.


 


2





















 


3.                                       Revocability
of Change in Control Agreement. The Organization and Compen-sation
Committee of the Board of Directors reserves the right to periodically review
the appropriateness of the individual to have a Change in Control agreement and
may revoke such agreement depending upon whether the status of the individual
has changed within the Company under circumstances including, but not limited
to, change in position, change in performance, and/or a reorganization.  However, except as set forth in paragraph 2,
such authority to review and determine if an individual Change in Control
agreement should be discontinued cannot be made by the Organization and
Compensation Committee when a potential change in control is known or
threatened.


 


4.                                       Rights
and Obligations Prior to a Change in Control.  Prior to a Change in Control the rights and
obligations of Employee with respect to his employment by Beckman shall be
whatever rights and obligations are negotiated between Beckman and Employee
from time to time.  The existence of this
Agreement, which deals with such rights and obligations subsequent to a Change
in Control, shall not be treated as raising any inference with respect to what
rights and obligations exist prior to a Change in Control unless specifically
stated elsewhere in this Agreement.


 


5.                                       Effect
of a Change in Control.  In the event
of a Change in Control, Sections 7 through 10 of this Agreement shall become
applicable to Employee if his Qualifying Termination occurs on or prior to the
second anniversary of the date upon which the Change in Control occurred.  If a Qualifying Termination has occurred by
that date, this Agreement shall remain in effect until Employee receives the
various benefits to which he has become entitled under the terms of this
Agreement; otherwise, upon such date this Agreement shall be of no further
force or effect.


 


6.                                       Qualifying
Termination.  If, subsequent to a
Change in Control Employee’s employment terminates, such termination shall be
considered a Qualifying Termination unless:


 


(a)                                  Employee
voluntarily terminates employment.  It
shall not be considered, however, a voluntary termination of employment if,
following the Change in Control, Employee’s compensation or duties are changed
in any material respect from what they were immediately prior to a Change in
Control, and subsequent to such change Employee elects to terminate
employment.  A “change in any material
respect” shall encompass any substantial diminishment or modification in
Employee’s overall compensation (as measured by the overall value of such
compensation, including fringe benefits, to Employee), position, duties,
responsibilities, or reporting relationship, and shall also include the
transfer of Employee’s job location to a site more than 50 miles away from his
place of employment prior to the Change in Control.


 


3





















 


(b)                                 The
termination is on account of Employee’s death or disability.  As used herein, “disability” refers to an
illness or accident that causes Employee to be unable to perform the duties of
his or her job for six months or more consecutive months.


 


(c)                                  Employee
is involuntarily terminated for “cause.” 
For this purpose “cause” shall mean:


 


(i) any material act of
misconduct against Beckman or any of its affiliates, such as fraud,
misappropriation, or embezzlement;


 


(ii) conviction of a
felony involving a crime of moral turpitude;


 


(iii) willful and knowing
significant violation of rules or regulations of any governmental or
regulatory body which has a material impact to the business of Beckman; or


 


(iv) substantial and willful failure to render
services in accordance with the job description of Employee’s position (other
than as a result of illness, accident or other physical or mental incapacity),
provided that (A) a demand for performance of services has been delivered
to the Employee in writing by or on behalf of the Chief Executive Officer (CEO)
of Beckman at least 60 days prior to termination identifying the manner in
which such CEO believes that the Employee has failed to perform and (B) the
Employee has thereafter failed to remedy such failure to perform.


 


7.                                       Constructive
Qualifying Termination.  If within
six months prior to a change in control the Employee’s employment terminates
other than by causes listed in paragraph 6(a)(b) &
(c), Employee may submit to an arbitration proceeding under paragraph 18 the
determination of whether said termination within six month prior to a change in
control was a constructive Qualifying Termination, entitling the Employee to
Compensation and other benefits that would have been granted if said
termination had occurred after a change in control.


 


8.                                       Date
and Notice of Termination.  Any
termination of the Employee’s employment by Beckman or by the Employee shall be
communicated by a written notice of termination to the other party (the “Notice
of Termination”).  Where applicable, the
Notice of Termination shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee’s
employment under the provision so indicated. 
The date of the Employee’s


 


4





















 


termination
of employment with Beckman (the “Date of Termination”) shall be determined as
follows:  (i) if the Employee’s
employment is terminated by Beckman, either with or without Cause, the Date of
Termination shall be the date specified in the Notice of Termination (which, in
the case of a termination by Beckman other than for Cause, shall not be less
than two (2) weeks from the date such Notice of Termination is given
unless Beckman elects to pay the Employee, in addition to any other amounts
payable hereunder, an amount equal to two (2) weeks of the Employee’s base
salary in effect on the Date of Termination), and (ii) if the basis for
the Employee’s Termination is a Qualifying Termination, the Date of Termination
shall be determined by Beckman, but shall not in any event be less than fifteen
(15) days nor more than sixty (60) days from the date such Notice of
Termination is given.


 


9.                                       Severance Payment.  If Employee is terminated as a result of a
Qualifying Termination, Beckman shall pay Employee within 30 days of said
Qualifying Termination a cash lump sum equal to                     
(  ) times Employee’s “Compensation” as a
severance payment (“Severance Payment”).


 


(a)                                  “Compensation”
shall equal the sum of the Employee’s highest annual salary rate (i.e., the
highest rate of annual salary that Employee has been entitled to while an
employee of Beckman) plus a “Management Bonus Increment.”  The Management Bonus Increment equals the “applicable
percentage” of the highest annual salary rate. 
The “applicable percentage” is determined by looking at the management
bonus plan that is applicable to Employee at the time of the Qualifying
Termination and calculating the total award guideline percentage that would be
applicable if the target performance were achieved.  The total award guideline percentage (at
target) shall not be adjusted either up or down by any individual performance
rating under the plan.  If subsequent to
this Agreement the Beckman Management Bonus Plan is redesigned or replaced, the
applicable percentage shall be equitably adjusted to reflect the percentage of
salary that Employee could reasonably expect to receive as a bonus if his
performance had been excellent and profit objectives had been met for the year
of the Qualifying Termination. If at the time of the Qualifying Termination
neither the Beckman Management Bonus Plan nor a successor plan with a
substantially similar bonus potential is in place and applicable to Employee,
the calculation of the applicable percentage shall be based on the terms of the
Beckman Management Bonus Plan that applied to Employee at the time that this
Agreement was executed.


 


(b)                                 In
lieu of a cash lump sum, Employee may elect in writing to receive the Severance
Payment provided by this section  in equal monthly installments over                 
(  ) years (depending on the applicable
multiple discussed in this Section 9). 
Such election may only be made prior to the occurrence of the events
which constitute the Change in Control in question and such election is
irrevocable once made.


 


5





















 


(c)                                  The
Severance Payment hereunder is in lieu of any severance payments that Employee
might otherwise be entitled to from Beckman under the terms of any severance
pay arrangement not referred to in this Agreement.


 


(d)                                 If a Qualifying Termination occurs during a calendar
year, Employee shall receive a prorata Management Bonus for that portion of the
year before the Qualifying Termination occurred.  The prorata Management Bonus shall be
calculated to the nearest month based on a twelve month year.  Further, the prorata Management Bonus shall
be based on the total award guideline percentage applicable to Employee if the
target performance were achieved.  The
total award guideline percentage (at target) shall not be adjusted either up or
down by any individual performance rating under the plan.


 


10.                                 Stock
Option Grants and Other Forms of Employee Compensation.


 


(a)                                  Employee
may have received or will receive stock option grants or restricted stock under
the Beckman Incentive Compensation Plan, or other stock option plans of
Beckman.  In the event of a Qualifying
Termination, Beckman agrees (1) that all such stock options shall be
immediately exercisable and shall remain exercisable for the length of the
option period, and (2) that all such restricted stock shall have the
restrictions removed.


 


(b)                                 Beckman
acknowledges that it may establish new Employee compensation programs
subsequent to the date of this Agreement in addition to the ones described in
this Agreement.  If such a program is
established, Employee becomes a participant in such a program, and the receipt
by Employee of the benefits to which he is potentially entitled under the
program is conditioned upon the satisfaction of a vesting requirement, then
such vesting requirement shall be treated as completely satisfied in the event
of a Qualifying Termination.


 


11.                                 Pension
Plan for Employees of Beckman (the “Pension Plan”).  In addition to any retirement benefits that
might otherwise be due Employee under the Pension Plan or any successor plan,
Employee shall receive additional payments from Beckman calculated as set forth
in this section if Employee is terminated on account of a Qualifying
Termination.


 


(a)                                  At
the time that Employee (or Employee’s beneficiary) first begins to receive
benefits under the Pension Plan there shall be calculated the difference
between the benefit that Employee or Employee’s beneficiary has begun to
receive under the Pension Plan and the benefit that would have been


 


6





















 


received if Employee had worked
for another                 
(  ) years (depending on the compensation
multiple discussed in Section 9 used to calculate the Employee’s Severance
Payment) subsequent to the date of the Qualifying Termination.  For the purpose of the preceding sentence,
Employee shall be deemed to have received “Earnings” under the Pension Plan for
the period subsequent to the Qualifying Termination at an annual rate equal to his  Compensation, as
calculated under Section 9(a) of this Agreement.  This difference shall be paid by Beckman as a
supplemental payment to Employee or Employee’s beneficiary for the period of
time that he is entitled to the payment that is being supplemented.


 


(b)                                 To
the extent that Employee’s pension benefit is provided by a different
tax-qualified defined benefit pension plan for Beckman employees, the
calculation of the obligation under this section shall be calculated with
regard to such successor plan’s benefit formula and other relevant
features.  This section shall be
applied with regard to the new plan in a manner designed to provide Employee
with the additional benefits he would have received if he had remained employed
for another                         
(  ) years, as the case may be.  If Employee is not participating in a
tax-qualified defined benefit pension plan at the time of the Qualifying
Termination, the benefit under this section shall be calculated with
regard to the terms of the Pension Plan at the time of this Agreement.


 


12.                                 Additional
Benefits.  In the event of a
Qualifying Termination, Employee shall be entitled to continue to participate
in the following employee benefit programs which had been made available to
Employee before the Qualifying Termination: group medical insurance, group
dental insurance, group-term life insurance, disability insurance, automobile
allowance, financial planning services, outplacement services, continuation of
D&O insurance, and indemnification. 
These programs shall be continued at no additional cost to Employee;
provided that, Employee acknowledges that tax rules may require the
inclusion of the value of such benefits in Employee’s income.  The programs shall be continued in the same
way and at the same level as immediately prior to the Qualifying
Termination.  The programs shall continue
for                     
(  ) years, depending on Employee’s
compensation multiple under Section 9.


 


13.                                 Funding
of SERP Obligations Upon Change of Control and a
Qualifying Termination.  Upon the
occurrence of a Change in Control and a Qualifying Termination of the Employee,
Beckman shall fund that portion, if any, of the obligations of Beckman to the
Employee, under any supplemental executive retirement plan (“SERP”) and other
non qualified plans that may then cover the Employee, that are not then
irrevocably funded by establishing and irrevocably funding a trust for the
benefit of the Employee.  The amount of
such fund shall include the obligations of Beckman to Employee under any non
qualified plan as well as the then present value of the supplemental pension
obligation due as


 


7





















 


determined by a nationally
recognized firm qualified to provide actuarial services which has not rendered
services to Beckman during the two years preceding such determination.  The actuary shall be selected by Beckman,
subject to approval by the Employee (which approval shall not unreasonably be
withheld), and paid by Beckman.  The
establishment and funding of such trust shall not affect the obligation of
Beckman to pay any non qualified benefits, including, but not limited to
supplemental pension payments under the terms of the applicable SERP.


 


14.                                 Section 280G


 


(a)                                  Gross-Up.  Notwithstanding any other provisions of this
Agreement, in the event that any payment or benefit received or to be received
by the Employee or the acceleration of any payment or benefit (all such
payments and benefits, and accelerations thereof including the Change in
Control Severance Payments, being hereinafter called the “Total Payments”)
would be subject (in whole or in part) to the tax (the “Excise Tax”)
imposed under Section 4999 of the Code, Beckman shall pay to the Employee
such additional amounts (the “Gross-Up Payment”) such that the net amount
retained by the Employee, after deduction of any Excise Tax on the Total
Payments and any federal, state and local income and employment taxes and
Excise Tax upon the Gross-Up Payment, shall be equal to the Total
Payments.  For purposes of determining
the amount of the Gross-Up Payment, the Employee shall be deemed to pay federal
income tax at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment is calculated for purposes of this
section, net of the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes.  In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account
hereunder, the Employee shall repay to Beckman, at the time that the amount of
such reduction in Excise Tax is finally determined, the portion of the Gross-Up
Payment attributable to such reduction (plus that portion of the Gross-Up
Payment attributable to the Excise Tax and federal, state and local income tax
imposed on the Gross-Up Payment being repaid by the Employee to the extent that
such repayment results in a reduction in Excise Tax and/or a federal, state or
local income tax deduction) plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code.  In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder (including by
reason of any payment the existence or amount of which cannot be determined at
the time of the Gross-Up Payment), Beckman shall make an additional Gross-Up
Payment in respect of such excess (plus any interest, penalties or additions
payable by the Employee with respect to such excess) at the time that the
amount of such excess is finally determined. 
The Employee and Beckman shall each reasonably cooperate with the other
in connection with any administrative or judicial proceedings concerning the
existence or amount of liability for Excise Tax with respect to the Total
Payments.


 


8





















 


(b)                                 Accounting Firm.  All determinations
to be made with respect to this Section 14 shall be made by Beckman’s
independent accounting firm (or, in the case of a payment following a Change in
Control, the accounting firm that was, immediately prior to the Change in
Control, Beckman’s independent auditor). 
The accounting firm shall be paid by Beckman for its services performed
hereunder.


 


15.                                 Term
of Agreement.  This Agreement shall be
effective from January 1, 2005 through December 31, 2015.  Beckman may, in its sole discretion and for
any reason, provide written notice of termination (effective as of the then
applicable expiration date) to Employee no later than 60 days before expiration
date of this Agreement.  If written
notice is not so provided, this Agreement shall be automatically extended for
an additional period of 12 months past the expiration date.  This Agreement shall continue to be
automatically extended for an additional 12 months at the end of such 12-month
period and each succeeding 12-month period unless notice is given in the
manner described in this section.


 


16.                                 Governing
Law.  Except to the extent that
federal law is applicable, this Agreement is made and entered into in the State
of California, and the laws of California shall govern its validity and
interpretation in the performance by the parties hereto of their respective
duties and obligations hereunder.


 


17.                                 Entire
Agreement.  This Agreement constitutes
the entire agreement between the parties respecting the benefits due Employee
in the event of a Change in Control followed by a Qualifying Termination, and
there are no representations, warranties or commitments, other than those set
forth herein, which relate to such benefits. 
This Agreement may be amended or modified only by an instrument in
writing executed by all of the parties hereto. 
This is an integrated agreement.


 


18.                                 Dispute
Resolution.  Any disagreement,
dispute, controversy or claim arising out of or relating to this Agreement or
the interpretation of this Agreement or any arrangements relating to this
Agreement or contemplated in this Agreement or the breach, termination or
invalidity thereof shall be settled by final and binding arbitration
administered by JAMS/Endispute in Orange County, California in accordance with
the then existing JAMS/Endispute Arbitration Rules and Procedures for
Employment Disputes.  In the event of
such an arbitration proceeding, the Employee and Beckman shall select a
mutually acceptable neutral arbitrator from among the JAMS/Endispute panel of
arbitrators.  In the event the Employee
and Beckman cannot agree on an arbitrator, the Administrator of JAMS/Endispute
will appoint an arbitrator.  Neither the
Employee nor Beckman nor the arbitrator shall disclose the existence, content,
or results of any arbitration hereunder without the prior written consent of all
parties.  Except as provided


 


9





















 


herein, the Federal Arbitration
Act shall govern the interpretation, enforcement and all proceedings.  The arbitrator shall apply the substantive
law (and the law of remedies, if applicable), of the State of California, or
federal law, or both, as applicable and the arbitrator is without jurisdiction
to apply any different substantive law. 
The arbitrator shall have the authority to entertain a motion to dismiss
and/or a motion for summary judgement by any party and shall apply the standards
governing such motions under the Federal Rules of Civil Procedure.  The arbitrator shall render an award and a
written, reasoned opinion in support thereof. 
Judgement upon the award may be entered in any court having jurisdiction
thereof.  The Employee and Beckman shall
generally each be responsible for payment of one-half the amount of the
arbitrator’s fee, provided, however, that Beckman shall pay to the Employee all
legal fees and expenses (including but not limited to fees and expenses in
connection with any arbitration) incurred by the Employee in disputing in good
faith any issue arising under this Agreement relating to the termination of the
Employee’s employment in connection with a Change in Control or in seeking in
good faith to obtain or enforce any benefit or right provided by this Agreement
on account of a Change in Control.


 


In
the case of a termination for cause, and Employee files for arbitration under
the dispute resolution paragraph 18, the Company shall continue to pay Employee
his salary from the time of said termination for cause for a period of six (6) months.  The arbitrator in the dispute resolution
proceeding shall have the authority to direct the Company of the Employee
(taking into account the good faith claim and the needs of the Employee) to
continue payment of Employee’s salary beyond said six months.  If Employee is successful in the arbitration
proceeding with a finding of a Qualifying Termination and receives his
Compensation under this Agreement, the payment of salary subsequent to the
alleged termination for cause will be deducted from any payment of Compensation
to the Employee.


 


19.                                 Tax Withholding.  All amounts paid under this Agreement shall
be subject to all applicable federal, state and local wage and employment tax
withholding.


 


20.                                 Release.  Notwithstanding anything herein to the
contrary, Beckman’s obligation to make the payments provided for in this
Agreement is expressly made subject to and conditioned upon (i) the
Employee’s prior execution of a release substantially in the form attached
hereto as Exhibit A within forty-five days after the applicable Date of
Termination and (ii) the Employee’s non-revocation of such release in
accordance with the terms thereof.


 


21.                                 Successors:  Binding Agreement.


 


(a)                                  Assumption
by Successor.  Beckman shall require
any successor (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business or assets of Beckman
expressly to assume


 


10





















 


and to agree to perform its obligations
under this Agreement in the same manner and to the same extent that Beckman
would be required to perform such obligations if no such succession had taken
place; provided, however, that no such assumption shall relieve Beckman of its
obligations hereunder.  As used herein,
Beckman shall mean any successor to its business and/or assets as aforesaid
that assumes and agrees to perform its obligations by operation of law or
otherwise.


 


(b)                                 Enforceability
Beneficiaries.  This Agreement shall
be binding upon and inure to the benefit of the Employee (and the Employee’s
personal representatives and heirs) and Beckman and any organization which
succeeds to substantially all of the business or assets of Beckman, whether by
means of merger, consolidation, acquisition of all or substantially all of the
assets of Beckman or otherwise, including, without limitation, as a result of a
Change in Control or by operation of law. 
This Agreement shall inure to the benefit of and be enforceable by the
Employee’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.  If the Employee should die while any amount
would still be payable to such Employee hereunder if he had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to his devisee, legatee or other designee or,
if there is no such designee, to his estate.


 


22.                                 Confidentiality:  Non Solicitation.


 


(a)                                  Confidentiality.  The Employee acknowledges that in the course
of his employment within Beckman, he has acquired non-public privileged or
confidential information and trade secrets concerning the operations, future
plans and methods of doing business (“Proprietary Information”) of Beckman, and
the Employee agrees that it would be extremely damaging to Beckman if such
Proprietary Information were disclosed to a competitor of Beckman or to any
other person or corporation.  The
Employee understands and agrees that all Proprietary Information the Employee
has acquired during the course of such employment has been divulged to the
Employee in confidence and further understands and agrees to keep all
Proprietary Information secret and confidential (except for such information
which is or becomes publicly available other than as a result of a breach by
the Employee of this provision) without limitation in time.  In view of the nature of the Employee’s
employment and the Proprietary Information the Employee has acquired during the
course of such employment, the Employee likewise agrees that Beckman would be
irreparably harmed by any disclosure of Proprietary Information in violation of
the terms of this paragraph and that Beckman shall therefore be entitled to
preliminary and/or permanent injunctive relief prohibiting the Employee from
engaging in any activity or threatened activity in violation of the terms of
this


 


11





















 


paragraph and to any other
judicial relief available to it. 
Inquires regarding whether specific information constitutes Proprietary
Information shall be directed to Beckman’s General Counsel (or, if such
position is vacant, Beckman’s Chief Executive Officer); provided, however, that
Beckman shall not unreasonably classify information as Proprietary Information.


 


(b)                                 Non-Solicitation of Employees.  The Employee recognizes that he possesses and
will possess confidential information about other employees of Beckman,
relating to their education, experience, skills, abilities, compensation and
benefits, and interpersonal relationships with customers of Beckman.  The Employee recognizes that the information
he possesses and will possess about these other employees is not generally
known, is of substantial value to Beckman in developing their business and in
securing and retaining customers, and has been and will be acquired by him
because of his business position within Beckman.  The Employee agrees that for a period of one (1) year
following the Date of Termination, he will not, directly or indirectly, solicit
recruit any employee of Beckman for the purpose of being employed by him or by
any other competitor of Beckman on whose behalf he is acting as an agent,
representative or employee and that he will not convey any such confidential
information or trade secrets about other employees of Beckman to any other
person; provided, however, that it shall not constitute a solicitation or
recruitment of employment in violation of this paragraph to discuss employment
opportunities with any employee of Beckman who has either first contacted the
Employee or regarding whose employment the Employee has discussed with and
received written approval of Beckman’s Vice President, Human Resources (or, if
such position is vacant, Beckman Chief Executive Officer), prior to making such
solicitation or recruitment.  In view of
the nature of the Employee’s employment with Beckman, the Employee likewise
agrees that Beckman would irreparably harmed by any solicitation or recruitment
in violation of the terms of this paragraph and that Beckman shall therefore be
entitled to preliminary and/or permanent injunction relief prohibiting the
Employee from engaging in any activity or threatened activity in violation of
the terms of this paragraph and to any other judicial relief available to it.


 


23.                                 Notices.  Any notice or communications required or
permitted to be given to the parties hereto shall be delivered personally or be
sent by United States registered or certified mail, postage prepaid and return receipt requested, and addressed or delivered as
follows, or to such other addresses the party addressed may have substituted by
notice pursuant to this section:


 


 


 


12





















 


(a)                                  If
to Beckman Coulter, Inc.:


 


Beckman
Coulter, Inc.


4300 N.
Harbor Boulevard


Fullerton,
California 92835


Attn: Senior
Vice President, General Counsel and Secretary


 


(b)                                 If
to Employee:


 


 


 


 


24.                                 Captions.  The captions of this Agreement are inserted
for convenience and do not constitute a part hereof.


 


25.                                 Severability.  In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in other respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein and there shall be deemed substituted
for such other provision as will most nearly accomplish the intent of the parties
to the extent permitted by the applicable law. 
In case this Agreement, or any one or more of the provisions hereof,
shall be held to be invalid, illegal or unenforceable within any governmental
jurisdiction or subdivision thereof, this Agreement or any such provision
thereof shall not as a consequence thereof be deemed to be invalid, illegal or
unenforceable in any other governmental jurisdiction or subdivision thereof.


 


26.                                 Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.


 


IN
WITNESS HEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first written above in Fullerton,
California.


 


	
   

  	
  BECKMAN COULTER,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Scott Garrett

  
	
   

  	
   

  	
  President and
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Betty Woods

  
	
   

  	
   

  	
  Chairman of the
  Board

  



 


 


	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


13





















 


Exhibit A


 


RELEASE OF ALL CLAIMS


 


1.0                                 This
Release of all Claims (“Release”) serves to conclude                                       ’s
(name) employment at Beckman Coulter, Inc. (“Company”) pursuant to a
change in control Agreement dated                                       
and a Qualifying Termination thereunder.


 


2.0                                 Consideration
of the full and final settlement of any and all claims that                                             
(name) may have or have made against the Company, or any of its agents at any
time through and including, the effective date of this Release and for the
execution and delivery of this Release is the Company’s obligations under the
Agreement between                                               
(name) and the Company dated                                           .


 


3.0                                 (name)
and (his/her) heirs, executors and administrators, if any, hereby forever
release and discharge the Company, any of its past, present or future parent
companies, subsidiaries, affiliates, divisions, successors, assigns, trust
fiduciaries, stockholders, agents, directors, officers, employees,
representatives, heirs, attorneys, and all persons acting by, through, under or
in concert with them, or any of them (hereinafter collectively known as “Releasees”)
of and from any and all manner of claims, causes of action, or complaints, in
law or in equity, of any nature whatsoever, known or unknown, fixed or
contingent (hereinafter called “Claims”), which                                               
(name) now has or may have against the Releasees, or any of them, arising out
of (his/her) employment or separation from Company, and any other claim of any
nature whatsoever based upon any fact or event occurring prior to the date of
this Release.


 


4.0                                 Without
limiting the generality of paragraph 3,                                   
(name) ALSO SPECIFICALLY AGREES TO WAIVE ANY RIGHT TO RECOVERY BASED ON LOCAL,
STATE OR FEDERAL AGE, SEX, SEXUAL ORIENTATION, PREGNANCY, RACE, COLOR, NATIONAL
ORIGIN, MARITAL STATUS, RELIGION, PHYSICAL DISABILITY, MENTAL CONDITION OR
MENTAL DISABILITY DISCRIMINATION LAWS, INCLUDING WITHOUT LIMITATION, TITLE VII
OF THE CIVIL RIGHTS ACT OF 1964, THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE
AMERICANS WITH DISABILITIES ACT, THE FEDERAL FAMILY MEDICAL LEAVE ACT OF 1993,
THE CALIFORNIA FAMILY RIGHTS ACT OF 1991 AND THE FAIR EMPLOYMENT AND HOUSING
ACT, WHETHER SUCH CLAIM OR CLAIMS MAY BE BASED ON AN ACTION FILED BY YOU
OR BY A GOVERNMENTAL AGENCY.


 


5.0                                 (name)
is aware that after the effective date of this Release,                                         
(name) may discover facts different from, or in addition, those                                         (name)
now knows or believes to be true with respect to the Claims released in
paragraphs 3 and 4 above and agrees that this Release shall be and remain in
effect in all respects as a complete and general release as to all matters
released, notwithstanding any different or additional facts.


 


14





















 


6.0                                 It
is                                           ’s
(name) intention in executing this Release that it shall be effective as a bar
to each and every Claim of any nature whatsoever.  In furtherance of this intention,                                         (name)
specifically waives the benefit of SECTION 1542 OF THE CIVIL CODE OF THE
STATE OF CALIFORNIA, which states the following:


 


A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THIS RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY EFFECTED HIS SETTLEMENT WITH THE DEBTOR.


 


7.0                                 This
Release shall be construed and interpreted in accordance with the laws of the
State of California.


 


8.0                                 I,                                           ,
(name) understand, acknowledge and represent that:


 


(a)              I have carefully read and understand this Release and its final and
binding effect;


 


(b)             This
Release constitutes a voluntary waiver of any and all rights and claims I have
against Company as of the date of the execution of this Release;


 


(c)              I
have waived rights or claims pursuant to this Release in exchange for
consideration, the value of which exceeds payment or remuneration to which I
was already entitled;


 


(d)             I
was advised to consult and have had the opportunity to fully discuss the
contents and consequences of this Release with any attorney of my choice prior
to executing it;


 


(e)              I
have a period of at least 21 days to consider the terms of this Release.  I may revoke this Release at any time during
the seven (7) days following the date I execute this Release, and this
Release shall not become effective or enforceable until such revocation period
has expired;


 


(f)                I
have voluntarily and knowingly signed this Release.


 


	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date

  



 


15