Exhibit 10.1
BECKMAN COULTER,
INC.
AMENDED AND
RESTATED
CHANGE IN CONTROL
AGREEMENT
This Amended and Restated Change in
Control Agreement (“ Agreement ”) is dated as of
December 31, 2008 (the “ Effective Date ”),
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 upon
certain terminations of employment with Beckman. 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. This
Agreement supersedes and negates any and all previous agreements
among the parties hereto with respect to such change in control
severance benefits [ , including, without limitation, that
certain change in control Agreement, dated as of [_________, 200_],
by and between Employee and Beckman (the “Prior
Agreement”) ] .
2. Change
in Control . As used in this Agreement, the phrase “
Change in Control ” shall mean the first to occur of
any of the following events at any time after the Effective Date
and prior to the expiration of this Agreement pursuant to
Section 13 below:
(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 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;
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(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
consummation of a sale or disposition by Beckman of all or
substantially all of Beckman’s assets or the approval by the
stockholders of Beckman of a plan of complete liquidation of
Beckman.
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.
3. Rights
and Obligations Prior to a Change in Control . Prior to a
Change in Control the rights and obligations of Employee with
respect to 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.
4. Effect
of a Change in Control . In the event of a Change in Control,
Employee shall become entitled to the severance and other benefits
described below if Employee incurs a Qualifying Termination 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 Employee has become entitled
under the terms of this Agreement; otherwise, upon such date this
Agreement shall be of no further force or effect.
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5.
Qualifying Termination . If, within two (2) years
following a Change in Control, Employee incurs a Separation from
Service, such Separation from Service shall be considered a
Qualifying Termination unless:
(a)
Employee voluntarily incurs a Separation from Service . It
shall not be considered, however, a voluntary Separation from
Service if, following the Change in Control, Employee incurs a
Separation from Service for good reason. For these purposes,
“good reason” shall mean the occurrence of any one or
more of the following conditions without Employee’s express
written consent:
(i) a
material diminution in Employee’s authority, duties or
responsibilities;
(ii) a
material diminution in Employee’s rate of annual base salary
or a material diminution in Employee’s rate of annual
compensation (when viewed in the aggregate taking into account
Employee’s rate of annual base salary, target annual
incentive, target grant-date value of long-term incentives, and
group benefits), excluding any reduction in group benefits that is
applicable to employees generally;
(iii) a
change in the location of Employee’s principal workplace for
Beckman (or the subsidiary of Beckman that employs Employee, as
applicable) to a location that is more than fifty (50) miles
from Employee’s principal workplace as of the date
immediately preceding the occurrence of a Change in Control and
that results in an increased commute for Employee from his or her
principal residence (except for reasonable periods of required
travel on Beckman business); or
(iv) a
material breach by Beckman (or, if Employee is employed by a
Beckman subsidiary, the subsidiary) of any agreement with
Employee;
provided, however, that any such
condition shall not constitute “good reason” unless
both (x) Employee provides written notice to Beckman of the
condition claimed to constitute good reason within ninety
(90) days of the initial existence of such condition, and
(y) Beckman fails to remedy (or fails to cause the subsidiary
that employs Employee to remedy, as the case may be) such condition
within thirty (30) days of receiving such written notice
thereof; and provided, further, that in all events Employee’s
Separation from Service with Beckman (or the subsidiary that
employs Employee, as applicable) shall not be treated as a
Separation from Service for “good reason” unless such
separation occurs not more than one (1) year following the
initial existence of the condition claimed to constitute
“good reason.”
(b) The
Separation from Service 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.
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(c)
Employee incurs an involuntary Separation from Service 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 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
Employee has failed to perform and (B) Employee has thereafter
failed to remedy such failure to perform.
(d)
Separation from Service . For purposes of this Agreement,
“Separation from Service” shall mean a termination of
services provided by Employee to Beckman or the subsidiary of
Beckman that Employee last performed services for or was employed
by, whether such termination of services is voluntary or
involuntary, as determined by the Committee in accordance with
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”) and Treasury Regulation
Section 1.409A-1(h).
6.
Constructive Qualifying Termination . If within six months
prior to a Change in Control Employee incurs a Separation from
Service, Employee may submit to an arbitration proceeding under
Section 16 to determine whether such Separation from Service
would have constituted a Qualifying Termination under
Section 5 above if such Separation from Service had occurred
within the two-year period following a Change in Control. In the
event that the arbitrator determines that such Separation from
Service would have constituted a Qualifying Termination, Employee
shall be entitled to the severance benefits that would have been
provided hereunder in connection with a Qualifying Termination
(subject to the release requirement set forth in
Section 18).
7. Date
and Notice of Termination . Any termination of Employee’s
employment by Beckman or by 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 Employee’s employment under the provision so
indicated. The date of Employee’s termination of employment
with Beckman (the “ Date of Termination ”) shall
be determined as follows: (i) if 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 Employee, in addition to any other
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amounts payable hereunder, an amount equal to
two (2) weeks of Employee’s base salary in effect on the
Date of Termination), and (ii) except as otherwise provided in
Section 5(a) in the case of a termination by Employee for good
reason, if the basis for 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.
8.
Severance Payment . Subject to Section 8(d) and the
release requirement set forth in Section 18, if Employee is
terminated as a result of a Qualifying Termination, Beckman shall
pay Employee a cash lump sum equal to __________
( )
times Employee’s “Compensation” as a severance
payment (“ Severance Payment ”). Such payment
shall be made as soon as possible after the release contemplated by
Section 18 becomes irrevocable and in all events within ninety
(90) days after the Date of Termination (or, in the event of a
constructive Qualifying Termination pursuant to Section 6,
within ninety (90) days after the date of the related Change
in Control). For avoidance of doubt, if the release has not been
executed and delivered to Beckman and has not become irrevocable by
the date that is ninety (90) days after the Date of
Termination (or, in the event of a constructive Qualifying
Termination pursuant to Section 6, within ninety
(90) days after the date of the related Change in Control), no
benefits will be paid or provided pursuant to this
Agreement.
(a) For
purposes of this Agreement, “Compensation” shall equal
the sum of 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 or her 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) 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.
(c) In
addition to the Severance Payment and subject to the release
requirement set forth in Section 18, 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
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award guideline percentage (at target) shall not
be adjusted either up or down by any individual performance rating
under the plan. The prorata Management Bonus shall be paid at the
same time as the Severance Payment as provided above in this
Section 8 (including, without limitation, the provisions of
Section 8(d) to the extent applicable).
(d) Notwithstanding any
other provision in this Agreement, Employee’s benefits under
this Agreement shall not be paid until the earlier of (i) the
date which is six (6) months after Employee’s Separation
from Service for any reason other than death, or (ii) the date
of Employee’s death. The provisions of this paragraph shall
only apply if, and to the extent, required to avoid the imputation
of any tax, penalty or interest pursuant to Section 409A of
the Code. It is Beckman’s intent that this Agreement will
constitute a “separation pay plan” that provides for
benefits only upon an “involuntary separation from service
(within the meaning of Section 409A of the Code and Treasury
Regulations promulgated thereunder) and that, accordingly, the
six-month waiting period described in this Section 8(d) will
generally apply to Employee’s benefits hereunder only to the
extent that
