Exhibit
10.1


 


BECKMAN COULTER, INC.

BENEFIT EQUITY TRUST AGREEMENT

Dated as of October 5, 2004

between

Beckman Coulter, Inc. 

and

Wells Fargo Bank, N.A.


 


TABLE OF CONTENTS


 


	
  SECTION 1.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Establishment of the Trust

  	
   

  
	
   

  	
  2.1.

  	
  Trust Fund

  	
   

  
	
   

  	
  2.2.

  	
  Irrevocability

  	
   

  
	
   

  	
  2.3.

  	
  Claims of Creditors

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  Acceptance by the Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Investment of the Trust

  	
   

  
	
   

  	
  4.1.

  	
  General Duty of the Trustee

  	
   

  
	
   

  	
  4.2.

  	
  Additional Powers
  of the Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Establishment and Maintenance of Participant
  Schedule

  	
   

  
	
   

  	
  5.1.

  	
  Form of Participant Schedule

  	
   

  
	
   

  	
  5.2.

  	
  Maintaining the
  Participant Schedule

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Maintenance of Trust

  	
   

  
	
   

  	
  6.1.

  	
  Trust Assets and
  Allocation to Plans

  	
   

  
	
   

  	
  6.2.

  	
  Valuation of Trust and Accounts

  	
   

  
	
   

  	
  6.3.

  	
  Relationship to Plans

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  Voting and Tender of Company Stock Held in Trust

  	
   

  
	
   

  	
  7.1.

  	
  Voting Rights

  	
   

  
	
   

  	
  7.2.

  	
  Tender Rights

  	
   

  
	
   

  	
  7.3.

  	
  Notices and
  Information Statements

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Distributions from the Trust

  	
   

  
	
   

  	
  8.1.

  	
  Distributions from the Trust

  	
   

  
	
   

  	
  8.2.

  	
  Significant Event

  	
   

  
	
   

  	
  8.3.

  	
  Protection of the Trustee

  	
   

  
	
   

  	
  8.4.

  	
  Company Obligations

  	
   

  
	
   

  	
  8.5.

  	
  Trustee as Holder
  of Legal Title to Trust Assets

  	
   

  
	
   

  	
  8.6.

  	
  Federal Income
  Tax Consequences of the Trust

  	
   

  
	
   

  	
  8.7.

  	
  Reversion to the Company

  	
   

  



 


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  SECTION 9.

  	
  Expenses, Compensation and Indemnification

  	
   

  
	
   

  	
  9.1.

  	
  Compensation

  	
   

  
	
   

  	
  9.2.

  	
  Charge on Trust Fund

  	
   

  
	
   

  	
  9.3.

  	
  Indemnification

  	
   

  
	
   

  	
  9.4.

  	
  Force Majeure

  	
   

  
	
   

  	
  9.5.

  	
  Payment from Trust Fund

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  Administration and Records

  	
   

  
	
   

  	
  10.1.

  	
  Records

  	
   

  
	
   

  	
  10.2.

  	
  Settlement of Accounts

  	
   

  
	
   

  	
  10.3.

  	
  Audit

  	
   

  
	
   

  	
  10.4.

  	
  Judicial Settlement

  	
   

  
	
   

  	
  10.5.

  	
  Delivery of
  Records to Successor

  	
   

  
	
   

  	
  10.6.

  	
  Tax Filings

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  Removal or Resignation of the Trustee and
  Designation of Successor Trustee

  	
   

  
	
   

  	
  11.1.

  	
  Removal

  	
   

  
	
   

  	
  11.2.

  	
  Resignation

  	
   

  
	
   

  	
  11.3.

  	
  Successor Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  Enforcement of Trust Agreement

  	
   

  
	
   

  	
  12.1.

  	
  Rights of Parties
  to Enforce the Trust Agreement

  	
   

  
	
   

  	
  12.2.

  	
  Limitation on
  Rights of Participants and Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  Termination

  	
   

  
	
   

  	
  13.1.

  	
  Termination upon
  Specific Events

  	
   

  
	
   

  	
  13.2.

  	
  Termination in Other Events

  	
   

  
	
   

  	
  13.3.

  	
  Limitation on
  Trustee Liability Upon Total Distribution; Continuation of Trustee Powers

  	
   

  
	
   

  	
  13.4.

  	
  Nonapplicability of ERISA

  	
   

  
	
   

  	
  13.5.

  	
  Reversion to the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  Amendment

  	
   

  
	
   

  	
  14.1.

  	
  Amendments in General

  	
   

  
	
   

  	
  14.2.

  	
  Nonapplicability
  of ERISA; Preventing Current Taxation

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.

  	
  Nonalienation

  	
   

  
	
   

  	
  15.1.

  	
  Prohibition Against
  Certain Transfers, Pledges, Etc

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 16.

  	
  Communications

  	
   

  
	
   

  	
  16.1.

  	
  To the Company, Board of Directors and
  Committee

  	
   

  
	
   

  	
  16.2.

  	
  To the Trustee

  	
   

  
	
   

  	
  16.3.

  	
  To a Participant

  	
   

  
	
   

  	
  16.4.

  	
  Binding upon Receipt

  	
   

  
	
   

  	
  16.5.

  	
  Authority to Act

  	
   

  
	
   

  	
  16.6.

  	
  Authenticity of Instruments

  	
   

  



 


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  SECTION 17.

  	
  Claims of the Company’s Bankruptcy Creditors

  	
   

  
	
   

  	
  17.1.

  	
  Bankruptcy Creditors

  	
   

  
	
   

  	
  17.2.

  	
  Resumption of
  Benefits; Restoration of Accounts

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 18.

  	
  Consolidation, Merger or Sale of the Company

  	
   

  
	
   

  	
  18.1.

  	
  Consolidation,
  Merger or Sale of the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 19.

  	
  Miscellaneous Provisions

  	
   

  
	
   

  	
  19.1.

  	
  Binding Effect

  	
   

  
	
   

  	
  19.2.

  	
  Inquiry as to Authority

  	
   

  
	
   

  	
  19.3.

  	
  Responsibility
  for Company Action

  	
   

  
	
   

  	
  19.4.

  	
  Successor to
  Trustee

  	
   

  
	
   

  	
  19.5.

  	
  Intercompany Agreements

  	
   

  
	
   

  	
  19.6.

  	
  Titles Not to Control

  	
   

  
	
   

  	
  19.7.

  	
  Laws of the State
  of California to Govern

  	
   

  
	
   

  	
  19.8.

  	
  Fractional Shares

  	
   

  
	
   

  	
  19.9.

  	
  Entire Agreement

  	
   

  



 


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THE
BECKMAN COULTER, INC. BENEFIT EQUITY TRUST AGREEMENT (“Trust
Agreement”), made and entered into as of
               ,
2004 by and between Beckman Coulter, Inc.,
a corporation organized under the laws of the State of Delaware (the
“Company”), and Wells Fargo Bank, N.A.,
a national banking association, organized under the law of the United States of
America (the “Trustee”),


 


W
I T N E S S E T H:


 


WHEREAS,
the Company has in place various qualified and non-qualified employee benefit
plans and arrangements for the benefit of some or all of the employees of the
Company and certain of its subsidiaries and affiliates and may from time to
time adopt one or more additional plans or arrangements;


 


WHEREAS,
the Company and its subsidiaries or affiliates have and will have certain legal
obligations under these employee benefit plans or arrangements;


 


WHEREAS,
the Company desires to establish a trust and to enter into this Trust Agreement
to assist it in meeting certain of these obligations and intends to make
contributions to such trust at such time or times and in such amount or amounts
as it may determine;


 


WHEREAS,
the Company intends that such contributions shall be held by the Trustee and
invested and reinvested primarily in common stock of the Company, all in
accordance with the provisions of this Trust Agreement;


 


WHEREAS,
inasmuch as the income and corpus of such trust may and will be applied in
discharge of the Company’s legal obligations, such trust is intended to be a
“grantor trust” within the meaning of Section 671 of the Internal Revenue Code
of 1986;


 


WHEREAS,
the Company intends that the assets of such trust at all times shall be subject
to the claims of bankruptcy and other general creditors of the Company and its
subsidiaries and affiliates that maintain the employee benefit plans and
arrangements as provided in Section 17 of this Trust Agreement; and


 


WHEREAS,
the Company desires to appoint the Trustee to serve as Trustee of such trust
and the Trustee accepts such appointment.


 


NOW,
THEREFORE, in consideration of the mutual covenants herein
contained, the Company and the Trustee declare and agree as follows:


 


SECTION 1.         Definitions.


 


As used in this Trust
Agreement, the following definitions apply to the terms indicated below:


 


1.1           “Administrator” or
“Administrators” shall refer to the committee, person or persons charged with
responsibility for overseeing and administering the Plans.


 
















 


1.2           “Affiliate” shall mean
(i) any corporation, other than the Company, which is included in a controlled
group of corporations (within the meaning of Code Section 414(b)) of which
the Company is a member, (ii) any trade or business, other than the Company,
which is under common control (within the meaning of Code Section 414(c))
with the Company, (iii) any entity or organization, other than the Company,
which is a member of an affiliated service group (within the meaning of Code
Section 414(m)) of which the Company is a member, and (iv) any entity
or organization, other than the Company, which is affiliated with the Company
under Code Section 414(o).  An
entity shall be considered an Affiliate only during the period of time in which
such entity has the required relationship with the Company under clauses (i),
(ii), (iii) or (iv) above following the execution of this Trust Agreement.


 


1.3           “Authorized
Administrator” shall mean an Administrator to whom the Committee has delegated
authority to initiate distributions of Company Stock in accordance with Section
8.1.


 


1.4           “Authorized Employee”
shall mean an employee of the Company to whom the Committee has delegated
authority to initiate distributions of Company Stock in accordance with Section
8.1.


 


1.5           “Beneficiary” shall
mean any person entitled to receive benefits under any Plan on the death of a
Participant.


 


1.6           “Benefits” shall mean
amounts that the Company or an Affiliate has an obligation pursuant to any Plan
to (i) pay from its general assets, (ii) provide for the payment of by making
contributions from its general assets, or (iii) deliver in shares of Company
Stock.


 


1.7           “Board of Directors”
shall mean the Board of Directors of the Company.


 


1.8           “Change in Control”
shall be deemed to occur if the secretary of the Company certifies to the
Trustee that any of the following events has occurred:


 


1.8.1        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”), other than an employee benefit plan of the
Company, or a trustee or other fiduciary holding securities under an employee
benefit plan of the Company, is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power of the
Company’s then outstanding voting securities. 
Notwithstanding the preceding sentence, a Change in Control shall not be
deemed to have occurred if the “person” described in the preceding sentence is
an underwriting syndicate which has acquired the ownership of 20% or more of
the combined voting power of the Company’s then outstanding voting securities
solely in connection with a public offering of the Company’s securities; or


 


1.8.2        The Company consummates a
reorganization, merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company or the acquisition of assets of
another entity, other than (A) a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior


 


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thereto continuing
to represent (either by remaining outstanding or by being converted into voting
securities of another entity) more than 50% of the combined voting power of the
voting securities of the Company or such other entity outstanding immediately
after such merger or consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which
no person acquires 20% or more of the combined voting power of the Company’s
then outstanding voting securities; or


 


1.8.3        The stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the Company’s
assets.


 


1.9           “Code” shall mean the
Internal Revenue Code of 1986, as it may be amended from time to time.


 


1.10         “Committee” shall mean
such committee as the Board of Directors shall appoint from time to time to
administer the Trust.  The Committee
shall consist of three or more persons. 
The members of the Committee will be certified to the Trustee by the
secretary or assistant secretary of the Board of Directors.


 


1.11         “Company Stock” shall
mean the common stock of the Company, par value $.10 per share.


 


1.12         “Daily Value” shall mean,
with respect to a share of Company Stock, the closing reported sales price per
share of Company Stock on the New York Stock Exchange Composite Tape, or if
Company Stock is not traded on such stock exchange, the principal national
securities exchange on which Company Stock is traded, or if not so traded, the
mean between the highest bid and lowest asked quotation on the over-the-counter
market as reported by the National Quotations Bureau, or any similar
organization, on any relevant date, or if not so reported, as determined by the
Committee in a manner consistently applied.


 


1.13         “Eligible Participant”
shall mean a Participant who is an Employee and who, during the 6-month period
preceding the date as of which Eligible Participants are to be determined for
purposes of this Trust Agreement, purchased Common Stock pursuant to the
Beckman Coulter, Inc. Employees’ Stock Purchase Plan, other than a Participant
who is a member of the Board of Directors.


 


1.14         “Employee” shall mean any
individual who is actively employed by the Company or an Affiliate.


 


1.15         “ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as it may be amended from time
to time.


 


1.16         “Exchange Act” shall mean
the Securities Exchange Act of 1934, as it may be amended from time to time.


 


1.17         “Minimum Distribution
Schedule” shall mean the schedule (or schedules) set forth in Schedule B.


 


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1.18         “Other Assets” shall mean
any asset or investment aside from cash held by the Trust that is not Company
Stock.


 


1.19         “Participant Schedule”
shall mean the schedule prepared by the Company pursuant to Section 5.1.


 


1.20         “Participants” shall mean
those individuals who participate in one or more of the Plans described in
Schedule A.


 


1.21         “Plans” shall mean the
plans or arrangements referred to in Schedule A, as it may be amended from time
to time.


 


1.22         “Trust” shall mean the
trust established pursuant to this Trust Agreement.


 


1.23         “Trust Fund” shall mean
all Company Stock, money and Other Assets from time to time contributed to the
Trust and all investments and reinvestments made therewith or proceeds thereof
and all earnings and profits thereon, less all payments and charges as
authorized herein.


 


SECTION 2.         Establishment
of the Trust.


 


2.1.          Trust
Fund.  The Company hereby
establishes the Trust.  The Trust Fund
shall consist of such sums of Company Stock, other securities of the Company,
money and other property acceptable to the Trustee as are from time to time
paid or delivered to the Trustee.  The
Company shall have no duty or obligation to make any contribution to the Trust
and the Trustee shall have no duty or obligation to require the Company to make
any contribution to the Trust.  The Trust
Fund shall be held by the Trustee in trust and shall be dealt with in
accordance with the provisions of this Trust Agreement.  The Trustee, and any successor Trustee
appointed pursuant to Section 11 hereof or resulting under Section 19.4 hereof
shall at all times be a bank and trust company or other national banking association
that is neither a subsidiary of nor other firm related by direct or indirect
beneficial stock ownership to the Company.


 


2.2.          Irrevocability.  Except as provided in Section 17 hereof, the
Trust shall be for the exclusive purpose of assisting the Company in providing
Benefits and defraying expenses of the Trust in accordance with the provisions
of this Trust Agreement.  No part of the
income or corpus of the Trust Fund shall be recoverable by the Company prior to
a termination of the Trust in accordance with Section 13.2; provided, however, that the Trust Fund
shall be applied in discharge of the Company’s legal obligations as provided in
this Trust Agreement.


 


2.3.          Claims of Creditors.  Notwithstanding anything in this Trust
Agreement or the Plans to the contrary, the Trust Fund shall at all times be
subject to the claims of bankruptcy and other general creditors of the Company
and its Affiliates, as provided in Section 17 hereof.  No Participant or Plan shall have any claim
against the Trust Fund other than as a general unsecured creditor of the
Company.


 


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SECTION 3.         Acceptance
by the Trustee.


 


The Trustee accepts the
Trust established under this Trust Agreement on the terms and subject to the
provisions set forth herein.  The Trustee
agrees to discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.


 


SECTION 4.         Investment
of the Trust.


 


4.1.          General Duty of the Trustee.  Except as otherwise directed in writing by
the Committee pursuant to this Section 4.1, and except as otherwise expressly
provided in this Trust Agreement, all assets received by the Trustee other than
Company Stock shall be invested as soon as practicable in, and remain invested
in, Company Stock.  The Trustee shall
acquire shares of Company Stock in the open market or through the method of
purchase and sales which is used by the Trustee in the normal course of its
security transactions, including transactions with the Company.  The Committee may direct in writing that cash
or Other Assets received by the Trustee may be retained and invested in Other
Assets.


 


4.1.1.       Upon any purchase by or contribution to the Trust of
Company Stock pursuant to this Section 4, the Trustee shall promptly take such
steps as are necessary to register such Company Stock on the books of the
Company in accordance with Section 4.2.13 hereof.


 


4.1.2.       In the event a Change in Control
occurs, it is the intention of the Company that the Trustee’s duties under this
Trust Agreement will not change other than expressly stated herein.  The Board of Directors shall inform the
Trustee in writing of a Change in Control in accordance with Section 1.8
herein.  The original Company will
require the successor Company to provide the Trustee with an interim procedure
or default as to who will instruct the Trustee after the Change in Control but
before the successor Company has named a successor Committee (if a Committee is
named as the successor Company’s delegate and is the one who instructs the
Trustee.)  The successor Company shall
continue to have all the rights, duties, responsibilities and obligations as
the original Company with regard to this Trust Agreement.


 


4.2.          Additional Powers of the Trustee.  Subject to the provisions of Section 4.1, the
Trustee shall have the right, power and authority to take any action and to
enter into and carry out every agreement with respect to the Trust Fund that
may be necessary or advisable to discharge its responsibilities hereunder, and
without limiting the generality of the foregoing and in addition to all other
powers and authorities herein elsewhere specifically granted to the Trustee,
the Trustee shall have the following powers and authorities, except as
otherwise expressly provided herein, with respect to all property constituting
a part of the Trust Fund:


 


4.2.1.       Subject to Section 7 hereof, to sell, exchange or
transfer any such property at public or private sale for cash or on credit and
grant options for the purchase or exchange thereof, solely as directed by the
Committee.


 


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4.2.2.       Subject to Section 7 hereof, to participate in any
plan of reorganization, consolidation, merger, combination, liquidation or
other similar plan relating to any such property, and to consent to or oppose
any such plan or any action thereunder, or any contract, lease, mortgage,
purchase, sale or other action by any corporation or other entity any of the
securities of which may at any time be held in the Trust Fund, and to do any
act with reference thereto, to the extent that a holder of such property has
any such rights, solely as directed by the Committee.


 


4.2.3.       Pursuant to the direction of the Committee, to deposit
cash or any Other Assets with any protective, reorganization or similar
committee; to delegate discretionary power to any such committee; and to pay
part of the expenses and compensation of any such committee and any assessments
levied with respect to any property so deposited.


 


4.2.4.       Pursuant to the direction of the Committee, to
exercise any conversion privilege or subscription right available in connection
with any such property, and to do any act with reference thereto, including the
exercise of options, the making of agreements or subscriptions and the payment
of expenses, assessments or subscriptions, which may be deemed necessary or
advisable in connection therewith, and to hold and retain any securities or
other property which it may so acquire.


 


4.2.5.       To commence or defend suits or legal proceedings and
to represent the Trust in all suits or legal proceedings; to settle, compromise
or submit to arbitration any claims, debts or damages, due or owing to or from
the Trust.


 


4.2.6.       Subject to Section 7 hereof, to exercise, personally
or by general or limited power of attorney, any right, including the right to
vote, appurtenant to any securities or other such property, solely as directed
by the Committee.


 


4.2.7.       To hold cash awaiting investment uninvested, and to
maintain such additional cash balances as it shall deem reasonable or necessary
to meet anticipated cash distributions from or administrative costs of the
Trust, notwithstanding that the Trustee or a related entity may directly or
indirectly benefit from any “float” that accrues during such period.


 


4.2.8.       To hold cash uninvested, in such amounts and for such
times as the Trustee in its discretion deems reasonable or necessary under the
circumstances, during any period in which an investment or distribution
transaction or any comparable transaction is pending, without incurring
liability for payment of interest thereon, and to invest cash or Other Assets
at Wells Fargo Bank, N.A., or another bank and trust company or national
banking association in any type of interest-bearing investment, including,
without limitation, deposit accounts, certificates of deposit and repurchase
agreements, notwithstanding that the Trustee or a related entity may directly
or indirectly benefit from any “float” that accrues during such period.


 


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4.2.9.       To form corporations or partnerships and to create
trusts to hold title to any cash or Other Assets constituting the Trust Fund,
upon such terms and conditions as may be deemed advisable.


 


4.2.10.     To engage legal counsel, including (except following
the occurrence of a Change in Control) counsel to the Company, or any other
suitable agents, to consult with such counsel or agents with respect to the
implementation or construction of this Trust Agreement, the duties of the
Trustee hereunder, the transactions contemplated by this Trust Agreement or any
act which the Trustee proposes to take or omit, to rely upon the advice of such
counsel or agents, and to pay any such counsel’s or agent’s reasonable fees,
expenses and compensation.


 


4.2.11.     To register or hold any securities or other property
held by it in its own name or of its nominee or in the name of any affiliate or
of its nominee or in the name of any custodian of such property or of its
nominee, including the nominee of any system for the central handling of
securities, with or without the addition of words indicating that such
securities are held in a fiduciary capacity, to deposit or arrange for the
deposit of any such securities with such a system and to hold any securities in
bearer form.


 


4.2.12.     To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers, releases or other instruments in writing that are necessary or proper
for the accomplishment of any of the foregoing powers.


 


4.2.13.     To take all action necessary to settle authorized
transactions, including exercising the power to borrow or raise money from any
lender, which may be the Trustee in its corporate capacity or any affiliate or
agent of the Trustee, upon such terms and conditions as are necessary to settle
security purchases and/or foreign exchange or contracts for foreign exchange
and to secure the repayments thereof by pledging all or any part of the Trust
Fund.


 


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SECTION 5.         Establishment
and Maintenance of Participant Schedule.


 


5.1.          Form of Participant Schedule.  Upon request by the Trustee, the Company
shall prepare, and shall deliver to the Trustee in accordance with Section 5.2
hereof, a schedule that sets forth the name of each Participant entitled to
receive a Benefit under a Plan or describes the classes of Participants
entitled to receive Benefits under the Plans. 
Such Participant Schedule shall also include a list of Eligible Participants.


 


5.2.          Maintaining the Participant Schedule.  As soon as practicable after execution of
this Trust Agreement, the Company shall deliver to the Trustee the Participant
Schedule.  The Company shall from time to
time update the Participant Schedule, as may be required under this Trust
Agreement.  Each Participant Schedule
shall state the date as of which it applies, and the Trustee shall be entitled
to rely upon such Participant Schedule, without a duty of further inquiry,
until it receives an updated Participant Schedule bearing a later date.  Each Participant Schedule shall contain all
information concerning a Participant which the Trustee will need to complete
its responsibilities under this Trust Agreement.


 


SECTION 6.         Maintenance
of Trust.


 


6.1.          Trust Assets and Allocation to Plans.  The Trustee shall hold all assets contributed
or otherwise obtained by the Trust and shall distribute such contributions and
any earnings thereon to such Administrators, Employees or Participants as the
Committee may from time to time direct pursuant to Section 8 hereof or as may
be required pursuant to Section 8 hereof.


 


6.2.          Valuation of Trust and Accounts.  The Trustee shall revalue the Trust Fund as
of the last business day of each calendar quarter.  Shares of Company Stock shall be valued at
the Daily Value of Company Stock as of such date.


 


6.3.          Relationship to Plans.  The list of Plans shall include at all times
at least one plan which is not a “pension plan” or “welfare plan” within the
meaning of ERISA.  Benefits available
under any of the Plans shall not be limited or governed in any way by the
amount of contributions to the Trust.  No
contributions from any Participant under any of the Plans shall be made to the
Trust.


 


SECTION 7.         Voting
and Tender of Company Stock Held in Trust.


 


7.1.          Voting
Rights.  The Trustee shall vote
the shares of Company Stock held by the Trust in accordance with directions
received from Eligible Participants determined as of the record date.  As soon as practicable following the record
date in question, the Company shall deliver to the Trustee a Participant
Schedule listing Eligible Participants determined as of such record date.  Each Eligible Participant listed on such
Participant Schedule shall have the right to direct the vote with respect to
that number of shares of Company Stock held by the Trust as is equal to the
total number of shares of Company Stock held by the Trust as of such record
date divided by the number of Eligible Participants listed on the Participant
Schedule who submit such voting directions. 
All actions taken by Eligible Participants pursuant to this Section 7.1
shall be held confidential by the Trustee and shall not be divulged or released
to any person, other than (i) agents of the Trustee who are not affiliated


 


8
















 


with the Company or its
Affiliates, (ii) by virtue of the execution by the Trustee of any proxy,
consent or letter of transmittal for the shares of Company Stock held in the
Trust, or (iii) as may be required by court order.


 


7.2.          Tender
Rights.  If any person shall
commence a tender or exchange offer or any similar transaction with respect to
the Company Stock, the Trustee shall pass through tender or exchange rights to
Eligible Participants determined as of the commencement of such tender or
exchange offer.  As soon as practicable
following the commencement of such tender or exchange offer, the Company shall
deliver to the Trustee a Participant Schedule listing the Eligible Participants
determined as of the commencement of such tender or exchange offer.  Each Eligible Participant listed on such
Participant Schedule shall have the right to direct the tender or exchange of
that number of shares of Company Stock held by the Trust as is equal to the
total number of shares of Company Stock held by the Trust divided by the number
of Eligible Participants listed on the Participant Schedule who submit such
tender or exchange directions.  The
Trustee shall devise and implement a procedure to assure the confidentiality of
any directions given by Eligible Participants in response to such offers.  All actions taken by Eligible Participants
pursuant to this Section 7.2 shall be held confidential by the Trustee and
shall not be divulged or released to any person, other than (i) agents of the
Trustee who are not affiliated with the Company or its Affiliates, (ii) by
virtue of the execution by the Trustee of any proxy, consent or letter of
transmittal for the shares of Company Stock held in the Trust, or (iii) as may
be required by court order.


 


7.3.          Notices and Information Statements.  The Company shall provide the Trustee in a
timely manner with notices and information statements (including proxy
statements) when voting rights are to be exercised, and with respect to tender,
exchange or similar offers, at the same time and in the same manner (except to
the extent the Exchange Act requires otherwise) as such notices and information
statements (including proxy statements) are provided to shareholders of the
Company generally.  The Trustee shall, in
turn, at no expense to itself, provide all material received by the Company
pursuant to this Section 7.3 to Eligible Participants described in Sections 7.1
and 7.2.


 


SECTION 8.         Distributions
from the Trust.


 


8.1.          Distributions from the Trust.  Subject to Section 8.1.3 below, the
particular Plan with respect to which any distribution from the Trust is made
and the timing of any distribution will be determined by the Committee in
accordance with the following directions: (a) to the extent available, shares
of Company Stock sufficient to meet the obligations of the Beckman Coulter,
Inc. Employees’ Stock Purchase Plan shall first be allocated to the
Administrator of such Plan, and (b) remaining shares of Company Stock (if any)
shall be allocated to the Administrators of other Plans or directly to
Participants in such other Plans or Employees, as determined by the Committee
in good faith taking into account the best interests of a broad cross-section
of Participants.  Distributions from the
Trust shall not be subject to the consent or approval of any adverse party
within the meaning of Code Section 672(a).


 


8.1.1.       Reliance Upon Written Instructions. 
The Committee, an Authorized Administrator or an Authorized Employee
shall inform the Trustee in writing of how


 


9
















 


many shares are required to fund distributions under Section
8.1(a).  The Trustee may rely upon
written instructions received from the Committee, Authorized Administrator or
Authorized Employee to carry out the instructions contained in this Section 8.1
and shall have no responsibility to verify or monitor the determinations made
by the Committee, Authorized Administrator or Authorized Employee.  Notwithstanding the foregoing, in the event
the Trustee receives a distribution request it knows or should reasonably know
to be fraudulent, the Trustee shall promptly notify the Committee of such
request and its concerns therewith.  No
shares of Company Stock shall be released in satisfaction of any such request
unless and until the Committee confirms the authenticity of such request and
provides written notification to the Trustee of such determination.


 


8.1.2.       Delegation to Administrators. 
Notwithstanding anything to the contrary in this Section 8.1, the
Committee may authorize one or more Administrators and/or employees of the
Company to initiate distributions from the Trust under this Section 8.1,
subject to such limitations as the Committee deems advisable.  The Committee shall provide the Trustee with
written notification of any such delegation of authority (including any
limitations thereon).  Following the
Trustee’s receipt of such written notification, the Trustee shall be entitled
to rely on written distribution requests received from an Authorized
Administrator or Authorized Employee as if such requests had been submitted by
the Committee; provided that such distribution
requests do not exceed the authority delegated to the Authorized Administrator
or Authorized Employee submitting the request. 
The Board shall have complete and exclusive power and authority to
modify or terminate the ability of an Authorized Administrator or Authorized
Employee to initiate distributions at any time. 
The Committee shall provide written notification of any such
modification or termination to the Trustee.


 


8.1.3.       Minimum
Distribution.  At the end of each
full calendar year prior to the termination of the Trust, the Trustee shall
determine whether the total number of shares distributed pursuant to requests
submitted by the Committee, all Authorized Administrators and all Authorized
Employees exceeds the minimum distribution for such year, as set forth in the
Minimum Distribution Schedule.  If the
number of shares of Company Stock distributed does not exceed the specified
minimum distribution, the Trustee shall distribute such additional shares of
Company Stock as may be necessary to satisfy such requirements.  All distributions of Company Stock pursuant
to this Section 8.1.3 shall be allocated among the various Administrators of
the Plans pursuant to written instructions provided by the Committee that are
designed to ensure that such shares are promptly distributed pro rata to all
Participants employed by the Company at the end of the relevant calendar year
on a uniform and non-discriminatory basis.


 


8.1.4.       Acceleration. 
Notwithstanding anything herein to the contrary, the Committee may
direct that the number of shares distributed in any year exceed the number of
shares required to be distributed under the Minimum Distribution Schedule
and/or that shares be distributed prior to the date specified in such
schedule.  If the number of shares
distributed in any year exceeds the number of shares required to be distributed
in such year pursuant to the Minimum Distribution Schedule, the minimum


 


10
















 


distribution amount for each subsequent year shall
automatically be reduced by a pro rata amount of the excess shares distributed.


 


8.1.5.       Final Distribution of Company Stock.  In the event the total number of shares of
Company Stock requested for distribution by the Committee, all Authorized
Administrators and all Authorized Employees exceeds the number of shares of
Company Stock then remaining available for distribution, the Trustee shall
promptly provide written notification to the Committee and the final
distribution of shares shall be determined by the Committee in accordance with
Section 8.1 above.


 


8.2.          Significant Event.  If an event occurs that causes 30 percent or
more of the Participants to cease to be Employees within a 12-month period, as
certified by the Committee, then all remaining distribution amounts under the
Minimum Distribution Schedule will be reduced in direct proportion to such
reduction and the Minimum Distribution Schedule will be correspondingly
extended.


 


8.3.          Protection of the Trustee.  The Trustee shall, to the maximum extent
permitted by applicable law, be fully protected in acting upon the Participant
Schedule and any written statement, affidavit or certification referred to in
this Trust Agreement.  The Trustee shall
at all times, to the maximum extent permitted by applicable law, be fully
protected in making distributions pursuant to Sections 4.1, 8, 13 and 17
hereof.


 


8.4.          Company Obligations.  Notwithstanding the provisions of this Trust
Agreement, the Company and its Affiliates shall remain obligated with respect
to the Benefits attributable to their respective employees.  Nothing in this Trust Agreement shall relieve
the Company or any of its Affiliates of their respective liabilities with
respect to the Benefits except to the extent such amounts are paid to a Plan or
a Participant from the Trust, it nevertheless being the Company’s intent that
the Trust Fund shall be applied in discharge of the Company’s legal obligations
as provided in this Trust Agreement.


 


8.5.          Trustee as Holder of Legal Title to
Trust Assets.  Subject to Section
17 hereof, the Trustee shall hold legal title to all assets in the Trust for
the benefit of the Participants and Employees.


 


8.6.          Federal Income Tax Consequences of
the Trust.  The Trust Fund may be
applied in the discharge of legal obligations of the Company as provided
herein.  Accordingly, the Company shall
take into account in computing its tax liability, those items of income,
deductions and credits against tax attributable to assets held in the Trust to
which the Company would have been entitled had the Trust not been in
existence.  The Trustee shall notify the
Company promptly after it becomes aware of any tax liability assessed against,
or imposed upon, the Trust or the Trustee in its capacity as Trustee of the
Trust.  The Company shall be responsible
for all matters in respect of such assessment or imposition, and shall have
sole responsibility for any defense in connection therewith.  Payments in respect of any tax liability of
the Company arising in connection with earnings, gains or activities relating
to the Trust, including, without limitation, interest and penalties, shall be
made from the Trust Fund after a final determination of such liability, unless
the Company promptly pays such liability.


 


11
















 


In the event the assets
of the Trust are insufficient to pay such liability, any deficit shall be paid
promptly by the Company.


 


8.7.          Reversion to the Company.  Notwithstanding the foregoing provisions of
this Section 8, to the extent that Company Stock held by the Trust has not been
transferred to Participants in accordance with the terms of this Trust
Agreement, such Company Stock shall revert to the Company upon the termination
of the Trust.


 


SECTION 9.         Expenses,
Compensation and Indemnification.


 


9.1.          Compensation.  The Company shall pay the Trustee
compensation in such amount as is mutually agreed upon from time to time
between the Company and the Trustee and documented in one or more written
agreements.  The Company acknowledges
that, as part of the Trustee’s compensation, the Trustee will earn interest on
balances, including disbursement balances and balances arising from purchase
and sale transactions.  To the extent the
Trustee advances funds to the Trust Fund for disbursements or to effect the
settlement of purchase transactions, the Trustee shall be entitled to collect from
the Trust Fund an amount equal to what would have been earned on the sums
advanced (an amount approximating the “federal funds” interest rate).  The Trustee shall not be reimbursed by the
Company for any expenses incurred in connection with the implementation,
management or administration of the Trust.


 


9.2.          Charge on Trust Fund.  All compensation referred to in Section 9.1
hereof shall be a charge on the Trust Fund and shall constitute a lien on the
Trust Fund in favor of the Trustee and shall be payable from the Trust Fund
unless paid when due by the Company.


 


9.3.          Indemnification.  The Company hereby agrees to indemnify and
hold harmless the Trustee from and against any losses, costs, damages, claims
or expenses, including, without limitation, reasonable attorneys’ fees, which
the Trustee may incur or pay out in connection with, or otherwise arising out
of:


 


9.3.1.       The performance by the Trustee of its duties
hereunder, unless any such loss, cost, damage, claim or expense is a result of
negligence or willful misconduct by the Trustee or the breach by the Trustee of
its fiduciary duties hereunder; or


 


9.3.2.       Any action taken by the Trustee in good faith pursuant
to the written direction of the Company, any Participant or any Participant’s
beneficiaries or any action omitted to be taken by the Trustee because any
direction required by the Trust Agreement to be given to the Trustee by the
Company, any Participant or any Participant’s beneficiaries has not been given
to the Trustee.


 


In the event that any action or regulatory proceeding shall be commenced
or claim asserted which may entitle the Trustee to be indemnified hereunder,
the Trustee shall give the Company written notice of such action or claim
promptly after becoming aware of such commencement or assertion unless the
Company has otherwise received notice of such action or claim.  The Company shall be entitled to participate
in and, upon notice to the Trustee, assume the defense of, any such action or
claim using counsel reasonably acceptable to the Trustee.  The Trustee shall cooperate with the Company
in connection with the defense


 


12
















 


of any such action or claim.  Subject to Section 17, the Trustee shall have
no claim on the assets of the Trust Fund in respect of amounts payable to the
Trustee under this Section 9.3.


 


9.4.          Force
Majeure.  The Trustee shall not
be responsible or liable for any losses to the Trust Fund resulting from
nationalization, expropriation, devaluation, seizure or similar action by any
governmental authority, de facto or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, levies or other charges affecting the
property; or acts of war, terrorism, insurrection or revolution; or acts of
God; or any other similar event beyond the control of the Trustee or its
agents.  This Section 9.4 shall survive
the termination of this Trust Agreement.


 


9.5.          Payment from Trust Fund.  All payments of compensation referred to in
Sections 9.1 hereof may be made without approval or direction of the Company.


 


SECTION 10.       Administration
and Records.


 


10.1.        Records.  Subject to Sections 7.1 and 7.2, the Trustee
shall keep or cause to be kept accurate and detailed accounts of any
investments, receipts, disbursements and other transactions hereunder and all
accounts, books and records relating thereto shall be open to inspection and
audit at all reasonable times by any person designated by the Company.  The Trustee shall preserve all such accounts,
books and records, in original form or on microfilm, magnetic tape or any other
similar process, for such period as the Trustee may determine, but the Trustee
may destroy such accounts, books and records only after first notifying the
Company in writing of its intention to do so and transferring to the Company,
subject to Sections 7.1 and 7.2 hereof, any of such accounts, books and records
that the Company shall request.


 


10.2.        Settlement of Accounts.  Subject to Sections 7.1 and 7.2 hereof,
within 60 days after the close of each calendar year, and within 60 days after
the removal or resignation of the Trustee or the termination of the Trust (or
any portion thereof), the Trustee shall file with the Company a written account
setting forth all investments, receipts, disbursements and other transactions
effected by it with respect to the Trust during the preceding calendar year or
during the period from the close of the preceding calendar year to the date of
such removal, resignation or termination, including a description of all
investments and securities purchased and sold, with the cost or net proceeds of
such purchases or sales, and showing all cash, securities and other property
held at the end of such calendar year or other period.


 


It shall be the duty of
the Company to review such written account promptly within 90 days from the
date of filing any such account and if, within such 90-day period, the Company
does not file with the Trustee a written notice of objection to any of the
Trustee’s acts or transactions, the initial account shall become an account
stated between the Trustee and the Company. 
If the Company files a written notice of objection with the Trustee, the
Trustee may file with the adjusted account, in which case it shall be the duty
of the Company to review such adjusted account promptly within 30 days from the
date of its filing.  If, within such
30-day period, the Company fails to file a written notice of objection to any
of the Trustee’s acts or transactions as so adjusted with the Trustee, the adjusted
account shall become an account


 


13
















 


stated between the Trustee and the Company.  Unless an account is fraudulent, when it
becomes an account stated it shall be finally settled, and the Trustee shall, to
the maximum extent permitted by applicable law, be forever released and
discharged from all liability and accountability with respect to the propriety
of its acts and transactions shown in such account.


 


10.3.        Audit.  The Trustee shall from time to time permit an
independent public accountant selected by the Company to have access during
ordinary business hours to such records as may be necessary to audit the
Trustee’s accounts.


 


10.4.        Judicial Settlement.  Nothing contained in this Trust Agreement
shall be construed as depriving the Trustee or the Company of the right to have
a judicial settlement of the Trustee’s accounts.  Upon any proceeding for a judicial settlement
of the Trustee’s accounts or for instructions, the only necessary party thereto
in addition to the Trustee shall be the Company.


 


10.5.        Delivery of Records to Successor.  In the event of the removal or resignation of
the Trustee, the Trustee shall deliver to the successor Trustee all records
which shall be required by the successor Trustee to enable it to carry out the
provisions of this Trust Agreement.


 


10.6.        Tax
Filings.  In addition to any
returns required of the Trustee by law (e.g., any information return required
to be filed on IRS Form 1041), the Trustee shall prepare and file such tax
reports and other returns as the Company and the Trustee may from time to time
agree.


 


SECTION 11.       Removal or
Resignation of the Trustee and Designation of Successor Trustee.


 


11.1.        Removal.  At any time prior to the occurrence of a
Change in Control, the Company may remove the Trustee with or without cause
upon at least 60 days’ notice in writing to the Trustee.  At any time after the occurrence of a Change
in Control, the Trustee may not be removed except by order of a court of
competent jurisdiction.  No removal of
the Trustee shall be effective until the Company has appointed in writing a
successor Trustee, and such successor Trustee has accepted the appointment in
writing.


 


11.2.        Resignation.  The Trustee may resign at any time upon at
least 90 days’ notice in writing to the Company, except that any such
resignation shall not be effective until the Company has appointed in writing a
successor Trustee, and such successor Trustee has accepted the appointment in
writing.  At any time after 60 days
following the sending of such notice of resignation, if the Company is unable
to appoint a successor Trustee or if a successor Trustee has not accepted an
appointment, the Trustee shall be entitled, at the expense of the Company, to
petition a United States District Court or any of the courts of the State of
California or other court having jurisdiction to appoint its successor.


 


11.3.        Successor
Trustee.  Subject to Section 2.1
hereof, each successor Trustee, during such period as it shall act as such,
shall have the powers and duties herein conferred upon the Trustee, and the
word “Trustee” wherever used herein, except where the context otherwise
requires, shall be deemed to include any successor Trustee.  Upon


 


14
















 


designation of a
successor Trustee and delivery to the resigned or removed Trustee of written
acceptance by the successor Trustee of such designation, such resigned or
removed Trustee shall promptly assign, transfer, deliver and pay over to such
Trustee, in conformity with the requirements of applicable law, the funds and
properties in its control or possession then constituting the Trust Fund.


 


SECTION 12.       Enforcement
of Trust Agreement.


 


12.1.        Rights of Parties to Enforce the
Trust Agreement.  The Company and
the Trustee shall have the right to enforce any provision of this Trust
Agreement.  In any action or proceeding
affecting the Trust, the only necessary parties shall be the Company and the
Trustee and, except as otherwise required by applicable law, no other person
shall be entitled to any notice or service of process.  Any judgment entered in such an action or
proceeding shall, to the maximum extent permitted by applicable law, be binding
and conclusive on all persons having or claiming to have any interest in the
Trust or any Plan.


 


12.2.        Limitation on Rights of
Participants and Beneficiaries. 
Neither the Plans nor any Participant or Beneficiary shall have any
rights with respect to the Trust Fund, no Plan shall be deemed to have any
beneficial interest in the Trust Fund and no Employee shall be deemed to have
any beneficial interest in the Trust Fund arising from his participation in any
particular Plan.


 


SECTION 13.       Termination.


 


13.1.        Termination upon Specific Events.  The Trust shall be terminated as soon as
practicable after the Trustee has received written notice from the Committee
that one or more of the following events has occurred:


 


13.1.1.     In the Committee’s sole discretion, the Department of
Labor or a court of competent jurisdiction has determined or would be likely to
determine that the assets of the Trust are subject to Part 4 of Subtitle B of
Title I of ERISA, or


 


13.1.2.     In the Committee’s sole discretion, the Internal
Revenue Service or a court of competent jurisdiction has determined or would be
likely to determine that any portion of the Trust Fund is presently taxable to
any Participant or Beneficiary.


 


In the event of a
termination pursuant to this Section 13.1, the Company shall provide the
Trustee with a Participant Schedule and the addresses of all Participants, and
the Trustee shall distribute all assets then constituting the Trust Fund to all
Participants listed on the Participant Schedule in an equal amount per
Participant.


 


13.2.        Termination in Other Events.  Notwithstanding anything herein to the
contrary, the Trust shall terminate on the earliest of (a) 21 years following
the death of the youngest Participant included on the Participant Schedule
received by the Trustee in 2004, (b) the date on which the Committee informs the
Trustee in writing that the Company and its Affiliates have no obligations
under any Plans (or the date on which there are no Plans), or (c) the date on
which the Trust contains no assets and retains no claims to recover assets from
the Company and its Affiliates pursuant to any provision hereof.  In the event of a termination


 


15
















 


described in clauses (a)
or (b) of this Section 13.2, the Trustee shall distribute the assets remaining
in the Trust Fund to all Participants listed on the Participant Schedule in an
equal amount per Participant.


 


13.3.        Limitation on Trustee Liability
Upon Total Distribution; Continuation of Trustee Powers.  Upon a total distribution of the Trust assets
pursuant to Sections 8 or 13, the Trustee shall be relieved from all further
liability.  The powers of the Trustee
hereunder shall continue so long as any assets of the Trust remain in its
hands.


 


13.4.        Nonapplicability of ERISA.  Notwithstanding anything herein to the
contrary, no amount shall be distributed to any Participant pursuant to this
Section 13 if such distribution could, in the opinion of independent counsel,
cause the Trust to be subject to ERISA (other than as an unfunded plan
described in Section 201(2) of ERISA). 
Prior to a distribution pursuant to this Section, the Committee shall
provide the Trustee with a Participant Schedule (taking into account this
Section 13.4).


 


13.5.        Reversion
to the Company. 
Notwithstanding anything in this Trust Agreement to the contrary, if an
event of termination has occurred and Company Stock held by the Trust has not
been transferred to Participants in accordance with the terms of this Trust
Agreement, such Company Stock shall revert to the Company.


 


SECTION 14.       Amendment.


 


14.1.        Amendments in General.  The Company may, in its sole discretion, from
time to time amend, in whole or in part, any or all of the provisions of this
Trust Agreement, including, without limitation, by adding to, or subtracting
from, Schedule A hereto one or more “pension plans” or “welfare plans” (within
the meaning of ERISA) or plans or arrangements that are not “pension plans” or
“welfare plans” (within the meaning of ERISA); provided
that, (a) in making any modification to Schedule A hereto, the
Company shall act in good faith taking into account the best interests of a
broad cross-section of employees, and (b) the Company shall ensure that at all
times Schedule A shall include at least one Plan that is not a “pension plan”
or “welfare plan” within the meaning of ERISA. 
No amendment to this Trust Agreement or the Plans shall be made that
would (a) purport to alter the irrevocable character of the Trust, (b) without
the Trustee’s prior written consent, adversely affect the Trustee’s rights,
increase the Trustee’s duties or responsibilities or decrease the Trustee’s
compensation hereunder, (c) without the prior written consent of a majority of
the Participants, adversely affect the Participants’ rights under the Plan, or
(d) decrease the Trustee’s compensation hereunder or alter Sections 1.8, 2, 4,
6, 7, 8, 13 or 14.1.


 


14.2.        Nonapplicability of ERISA;
Preventing Current Taxation. 
Notwithstanding Section 14.1, the Company may amend this Trust Agreement
from time to time in such a manner as may be necessary, in the opinion of
independent counsel, to prevent this Trust Agreement or the Trust from becoming
subject to ERISA and to prevent the current taxation of the Trust Fund to
Participants.


 


16
















 


SECTION 15.       Nonalienation.


 


15.1.        Prohibition Against Certain Transfers,
Pledges, Etc.  Except as
otherwise provided by this Trust Agreement and except as otherwise may be
required by applicable law, (a) no amount payable to or in respect of any Plan,
Participant or Employee at any time under the Trust shall be subject in any
manner to alienation by anticipation, sale, transfer, assignment, bankruptcy,
pledge, attachment, charge, or encumbrance of any kind, and any attempt to so
alienate, sell, transfer, assign, pledge, attach, charge, or otherwise encumber
any such amount, whether presently or thereafter payable, shall be void, and
(b) the Trust Fund shall in no manner be liable for or subject to the debts or
liabilities of any Participant.


 


SECTION 16.       Communications.


 


16.1.        To
the Company, Board of Directors and Committee.  Communications to the Company, the Board of
Directors and the Committee shall be addressed to:


 


Beckman Coulter, Inc.


4300 North Harbor
Boulevard


Fullerton, CA 92835


Attention:  Treasurer


 


with a copy to:


 


Beckman Coulter, Inc.


4300 North Harbor
Boulevard


Fullerton, CA 92835


Attention:  Office of General Counsel


 


provided,
however, that upon the Company’s written request, such
communications shall be sent to such other address as the Company may specify.


 


16.2.        To
the Trustee.  Communications to
the Trustee shall be addressed to:


 


Wells Fargo Bank, N.A.


Institutional Trust
Operations


P.O. Box 63050


San Francisco, CA  94163


 


with a copy to:


 


Wells Fargo Bank, N.A.


Institutional Trust
Services


4365 Executive Drive, 17th
Floor


San Diego, CA  92121


 


provided,
however, that upon the Trustee’s written request, such
communications shall be sent to such other address as the Trustee may specify.


 


17
















 


16.3.        To
a Participant.  Communications to
a Participant or to his Beneficiaries shall be addressed to the Participant or
his Beneficiaries, respectively, at the address indicated on the Company’s
records as in effect at the time of the communication, which the Company shall
provide to the Trustee upon the Trustee’s request.


 


16.4.        Binding upon Receipt.  No communication shall be binding on the
Trustee until it is received by the Trustee, and no communication shall be
binding on the Company, the Board of Directors or the Committee until it is
received by the Company, the Board of Directors or the Committee, respectively,
and no communication shall be binding on a Participant or the Participant’s
Beneficiaries until it is received by the Participant or the Participant’s
Beneficiaries, respectively.


 


16.5.        Authority
to Act.  The secretary of the
Company shall from time to time certify to the Trustee the person or persons
authorized to act for the Company, the Committee and the Board of Directors,
and shall provide the Trustee with such information regarding the Company as
the Trustee may reasonably request.  The
Trustee may continue to rely on any such certification until notified to the
contrary.


 


16.6.        Authenticity of Instruments.  The Trustee shall be fully protected in
acting upon any instrument, certificate or paper reasonably believed by it to
be genuine and to be signed or presented by the proper person or persons, and
the Trustee shall be under no duty to make any investigation or inquiry as to
any statement contained in any such writing but may accept the same as
conclusive evidence of the truth and accuracy of the statements therein
contained.


 


SECTION 17.       Claims of
the Company’s Bankruptcy Creditors.


 


17.1.        Bankruptcy Creditors.  In the event of the Company’s “insolvency,”
the assets of the Trust shall be available to pay the claims of any creditor of
the Company to whom a distribution may be made in accordance with state and
federal bankruptcy laws.  The Company
shall be deemed to be “insolvent” if it is either (a) unable to pay its debts
and liabilities as they become due, or (b) subject to a pending proceeding as a
debtor under the federal bankruptcy code (or any successor federal statute) or
any state bankruptcy code.  In the event
the Company becomes insolvent, the Board of Directors and the Chief Executive
Officer of the Company shall notify the Trustee of the event as soon as
practicable.  Upon receipt of such
notice, or if the Trustee receives other written allegations of the Company’s
insolvency from a third party considered by the Trustee to be reliable and
responsible, the Trustee shall cease making any distributions from the assets
of the Trust, shall hold the assets in the Trust for the benefit of the
Company’s creditors and shall take such steps as are necessary to determine
within a reasonable period of time whether the Company is insolvent.  In making such determination, the Trustee may
rely upon a certificate of the Board of Directors and the Chief Executive
Officer of the Company or a determination by a court of competent jurisdiction
that the Company is or is not insolvent. 
In the case of the Trustee’s determination of the Company’s insolvency,
the Trustee will deliver assets of the Trust to satisfy claims of the Company’s
creditors as directed pursuant to a final order of a court of competent
jurisdiction.


 


18
















 


17.2.        Resumption of Benefits; Restoration
of Accounts.  In the event the
Trustee ceases making distributions by reason of Section 17.1, the Trustee
shall resume making distributions pursuant to Sections 4 or 13 of this
Agreement only after the Trustee has determined that the Company is no longer
insolvent or upon receipt of an order of a court of competent jurisdiction
requiring such distributions.  In making
any determination under this Section 17, the Trustee may rely upon a
certificate of the Board of Directors and the Chief Executive Officer of the
Company.


 


SECTION 18.       Consolidation,
Merger or Sale of the Company.


 


18.1.        Consolidation,
Merger or Sale of the Company. 
Effective upon consolidation of the Company with, or merger of the
Company into, any corporation or corporations, or any sale or conveyance of all
or substantially all of the assets of the Company, the Trustee shall deal with
the corporation formed by such consolidation, or with or into which the Company
is merged, or the person that acquires the assets of the Company, on the same
basis as it dealt with the Company prior to such transactions and, in such
event, the term “Company” within this Agreement shall mean such corporation or
person.


 


SECTION 19.       Miscellaneous
Provisions.


 


19.1.        Binding
Effect.  This Trust Agreement
shall be binding on the Company and the Trustee and their respective successors
and assigns.


 


19.2.        Inquiry as to Authority.  A third party dealing with the Trustee shall
not be required to make inquiry as to the authority of the Trustee to take any
action nor be under any obligation to follow the proper application by the
Trustee of the proceeds of sale of any property sold by the Trustee or to
inquire into the validity or propriety of any act of the Trustee.


 


19.3.        Responsibility for Company Action.  The Trustee assumes no obligation or
responsibility with respect to any action required by this Trust Agreement on
the part of the Company, the Board of Directors, the Committee, any Affiliate,
the Participants or any Beneficiaries. 
The Trustee shall be under no duties except such duties as are
specifically set forth as such in this Trust Agreement or under applicable law,
and no implied covenant or obligation shall be read into this Trust Agreement
against the Trustee.


 


19.4.        Successor to Trustee.  Subject to Section 2.1, any corporation into
which the Trustee may be merged or with which it may be consolidated, or any
corporation resulting from any merger, reorganization or consolidation to which
the Trustee may be a party, or any corporation to which all or substantially
all the trust business of the Trustee may be transferred shall be the successor
of the Trustee hereunder without the execution or filing of any instrument or
the performance of any act.


 


19.5.        Intercompany Agreements.  The Company may require any Affiliate to
enter into such other agreement or agreements as it shall deem necessary to
obligate such Affiliate to reimburse the Company for any other amounts paid by
the Company hereunder, directly or indirectly, in respect of such Affiliate’s
employees.


 


19
















 


19.6.        Titles Not to Control.  Titles to the Sections of this Trust
Agreement are included for convenience only and shall not control the meaning
or interpretation of any provision of this Trust Agreement.


 


19.7.        Laws of the State of California to
Govern.  This Trust Agreement and
the Trust established hereunder shall be governed by and construed, enforced
and administered in accordance with the laws of the State of California,
without reference to the principles of conflicts of law thereof.


 


19.8.        Fractional
Shares.  Notwithstanding anything
herein to the contrary, the Trustee may distribute any fractional share
otherwise required to be distributed to Administrators or Participants pursuant
to Sections 8 or 13, in cash in an amount equal to the Daily Value, multiplied
by such fraction.


 


19.9.        Entire
Agreement.  This Trust Agreement
sets forth the entire agreement and understanding of the Company and the
Trustee with respect to the subject matter hereof and supersedes all prior oral
or written agreements, understandings, negotiations, discussions and
commitments related to the subject matter hereof.  In the event the Company and the Trustee
enter into one or more additional agreements in the future and one or more
provisions of such future agreements conflicts with the terms of this Trust
Agreement, the provisions of this Trust Agreement shall be controlling unless expressly provided otherwise.


 


IN
WITNESS WHEREOF, this Trust Agreement has been duty executed
by the parties hereto as of the day and year first above written.


 


	
   

  	
   

  	
  BECKMAN COULTER, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ James
  J. Glover

  
	
  Attest:

  	
  /s/ William
  H. May

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WELLS FARGO BANK, N.A., as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Marianne Nelson

  
	
  Attest:

  	
  /s/ Chris Gold

  	
   

  	
   

  
						



 


20
















 


SCHEDULE A


 


BECKMAN COULTER, INC. 

BENEFIT EQUITY FUND 

WELLS FARGO BANK, N.A. TRUSTEE


 


 


LIST OF PLANS


 


Beckman Coulter, Inc.
Incentive Compensation Plan of 1990


Beckman Coulter, Inc.
Stock Option Plan for Non-Employee Directors


Beckman Coulter, Inc.
1998 Incentive Compensation Plan


Beckman Coulter, Inc.
2004 Long-Term Performance Plan


Beckman Coulter, Inc.
Employees’ Stock Purchase Plan (U.S. and Canada)


Beckman Coulter, Inc.
Savings Plan


Beckman Coulter, Inc.
Option Gain Deferral Program


 
















 


SCHEDULE B


 


BECKMAN COULTER, INC. 

BENEFIT EQUITY FUND

WELLS FARGO BANK, N.A., TRUSTEE


 


 


MINIMUM DISTRIBUTION
SCHEDULE 

AS OF OCTOBER 5, 2004




	
  YEAR

  	
   

  	
  SHARES REMAINING

  BEGINNING OF YEAR

  	
   

  	
  SHARES

  DEPOSITED

  	
   

  	
  MINIMUM

  DISTRIBUTION

  	
   

  	
  SHARES REMAINING

  END OF YEAR

  	
   

  
	
  2004

  	
   

  	
  5,000,000

  	
   

  	
  5,000,000

  	
   

  	
  —

  	
   

  	
  5,000,000

  	
   

  
	
  2005

  	
   

  	
  4,800,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  4,600,000

  	
   

  
	
  2006

  	
   

  	
  4,600,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  4,400,000

  	
   

  
	
  2007

  	
   

  	
  4,400,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  4,200,000

  	
   

  
	
  2008

  	
   

  	
  4,200,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  4,000,000

  	
   

  
	
  2009

  	
   

  	
  4,000,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  3,800,000

  	
   

  
	
  2010

  	
   

  	
  3,800,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  3,600,000

  	
   

  
	
  2011

  	
   

  	
  3,600,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  3,400,000

  	
   

  
	
  2012

  	
   

  	
  3,400,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  3,200,000

  	
   

  
	
  2013

  	
   

  	
  3,200,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  3,000,000

  	
   

  
	
  2014

  	
   

  	
  3,000,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  2,800,000

  	
   

  
	
  2015

  	
   

  	
  2,800,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  2,600,000

  	
   

  
	
  2016

  	
   

  	
  2,600,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  2,400,000

  	
   

  
	
  2017

  	
   

  	
  2,400,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  2,200,000

  	
   

  
	
  2018

  	
   

  	
  2,200,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  2,000,000

  	
   

  
	
  2019

  	
   

  	
  2,000,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  1,800,000

  	
   

  
	
  2020

  	
   

  	
  1,800,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  1,600,000

  	
   

  
	
  2021

  	
   

  	
  1,600,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  1,400,000

  	
   

  
	
  2022

  	
   

  	
  1,400,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  1,200,000

  	
   

  
	
  2023

  	
   

  	
  1,200,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  1,000,000

  	
   

  
	
  2024

  	
   

  	
  1,000,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  800,000

  	
   

  
	
  2025

  	
   

  	
  800,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  600,000

  	
   

  
	
  2026

  	
   

  	
  600,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  400,000

  	
   

  
	
  2027

  	
   

  	
  400,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  200,000

  	
   

  
	
  2028

  	
   

  	
  200,000

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  —