Exhibit 10.8
TRANSITION AND RETIREMENT
AGREEMENT
This TRANSITION AND RETIREMENT AGREEMENT
(this “Agreement”) is entered into as of March 16,
2006 by and between BECKMAN COULTER, INC. , a Delaware
corporation (the “Company”), and James T. Glover
(“Executive”).
RECITALS
WHEREAS , Executive is the Senior Vice President and
Chief Financial Officer (the “CFO”) of
Company;
WHEREAS , the Company desires to have the continued
benefit of Executive’s knowledge and expertise until
Executive retires from the Company on or about June 30, 2006,
or such later date to which the parties may mutually agree to
extend Executive’s employment (“Retirement Date”)
and Executive desires to provide such services as the Company
may reasonably require during such period of time;
NOW, THEREFORE
, in consideration of the premises
and the mutual agreements set forth below, the parties hereby agree
as follows:
1.
Services.
Executive shall remain the CFO and
continue to perform the services of the CFO of the Company
until the Retirement Date.
2.
Compensation and
Benefits .
a. The Company shall continue to pay Executive a
base salary at Executive’s current rate of $12,146.31 for
each bi-weekly period, until the Retirement Date.
b. Also, for an eighteen month period, commencing
on the Retirement Date, the Company shall pay Executive or his
estate $12,146.31 bi-weekly.
c. The Company shall also pay Executive or his
estate a prorated 2006 incentive bonus on or about the time it pays
its employees incentive bonuses for 2006 performance. The bonus
Executive shall be paid shall equal the product of (i) the
number of days in 2006 until the Retirement Date divided by 365,
but no less than 183 days, times (ii) one hundred percent of
what the Executive would have received had the Executive served
throughout 2006 and received a one hundred percent (100%) bonus
payout. For purposes of certainty, the parties acknowledge that in
calculating the bonus paid to Executive, the Company shall
assume i) Company performance for 2006 that equals the Operating
Plan target for a 100% bonus payout to executives, and ii) that
Executive’s performance
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was at a level warranting a 100%
bonus. The Company shall amend the Supplemental Pension Plan to
include this incentive bonus payment in Executive’s final
average earnings calculations for purposes of calculating benefits,
and other matters under such plan at Retirement.
d. The Company shall provide to Executive
continued eligibility to participate in the Company’s medical
plan coverage at normal active employee rates from the Retirement
Date for a period of one year, and thereafter at the
Company’s COBRA rates. In the event of Executive’s
death during the one year period from the Retirement Date,
Executive’s dependents may continue medical coverage at
COBRA rates for the period required by COBRA. From and after the
Retirement Date and for a period required by COBRA, Executive shall
be eligible for any other health benefits, including dental and
vision benefits, at rates provided for under COBRA, and in
accordance with the provisions of COBRA. Executive acknowledges and
agrees that all medical and other health benefit premiums,
including but not limited to those set forth above, shall be at
Executive’s own expense and are subject to premium
increases.
e. The vesting of Executive’s special stock
option grant, scheduled to vest on April 1, 2007 will be
accelerated to vest on the Retirement Date. Also, Executive’s
restricted stock grant scheduled to vest on August 6, 2007,
will be accelerated to vest on May 1, 2006.
f.
The Company shall provide to
Executive the Ayco Financial Planning Service (or a successor
service if one is selected by the Company) until December 31,
2007, in accordance with the program provisions applicable during
this period.
g. The Company shall provide an executive
outplacement program to Executive through the firm of
Executive’s choice in an amount not to exceed $35,000. This
amount is to be used for outplacement services only. These services
will be provided until the date Executive obtains other employment
or December 31, 2007, whichever date is earlier. The Company
will make payments directly to the outplacement services provider.
No amount of any unused portion will be refunded or payable to
Executive.
h. Upon or as soon as practicable after the
Retirement Date, the Company shall pay Executive or his estate
$24,292.62 for twenty (20) accrued, but unused, vacation days. This
amount will be included in the Executive’s final average
earnings for calculation purposes of all pension benefits at
Retirement.
i.
Payments and benefits under this
Agreement are contingent upon Executive signing and delivering to
the Senior Vice President, General Counsel and Secretary of the
Company, a General Release of All Claims in the form of
Attachment “A” hereto dated as of the Retirement
Date.
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j.
The Company and Executive agree to
reasonably cooperate to adopt any amendments to this Agreement that
may be necessary or advisable in order to avoid the imputation
of tax or any tax penalties pursuant to Section 409A of the
Internal Revenue Code of 1986, as amended. No such future
amendments will reduce the amounts due the Executive or his estate
under this Agreement.
3.
Severance Plan Waiver
. Executive agrees that by
accepting, agreeing to and executing this Agreement, Executive is
waiving any and all rights to Basic and Additional Benefits as
defined under the Beckman Coulter, Inc. Separation Pay Plan -
#594 and any payments under any annual incentive plan, including
but not limited to the 2006 Executive Annual Incentive Plan, except
as provided in Paragraph 2(c) above. Company and Executive
agree that the agreement dated January 1, 2001 shall remain in
effect until Executive’s Retirement Date and that, should any
payments and benefits under such agreement become due prior to his
Retirement Date, then such payments and benefits shall be in lieu
of those provided under Paragraph 2(a) through
2(f) above.
4.
General Release
.
a. Executive and Executive’s heirs,
executors, and administrators, if any, hereby absolutely and
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 Executive now has or
may have against the Releasees, or any of them, arising out of
Executive’s employment or retirement from the Company, and
any other claim of any nature whatsoever based upon any fact or
event occurring prior to the date Executive executes this
Agreement. If any action is brought by or on Executive’s
behalf relating to any matters released, Releasees shall be
entitled to a return from Executive in the amount equivalent to all
payments mentioned under Paragraphs 2b through 2c above. The return
of such amounts shall not extinguish the Agreement of
Executive’s obligations hereunder.
b. Without limiting the generality of Paragraph
4(a), Executive 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, medical condition, physical disability, 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
and the Fair
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Employment and Housing Act, whether
such claim or claims may be based on an action filed by
Executive or by a governmental agency.
c. Executive is aware that after the effective
date of this Agreement, Executive may discover facts different
from, or in addition to, those Executive now knows or believes to
be true with respect to the Claims released in Paragraphs 3 and 4
above and agrees that this Agreement shall be and remains in effect
in all respects as a complete and general release as to all matters
released, notwithstanding any different or additional
facts.
d. It is Executive’s intention in executing
this Agreement that it shall be effective as a bar to each and
every claim of any nature whatsoever hereby released. In
furtherance of this intention, Executive 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 HIS
FAVOR AT THE TIME OF EXECUTING THIS RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
e. Nothing in this Agreement shall prohibit
Executive from bringing an action to enforce this Agreement, or to
obtain any rights under Article VIII of the By-laws of the
Company (indemnification).
5.
Benefit and Compensation
Plans . Executive
acknowledges and agrees that except as to benefits and compensation
expressly provided for in this agreement, any rights to receive
payments and benefits from various employee benefit and
compensation plans or programs shall be governed by the
rules of those plans or programs as they now exist or are
amended in the future, and further, that entering into this
Agreement shall not limit the right of the Company, its
subsidiaries or its or their successors to amend or terminate any
such plans or programs or benefits thereunder. Any amendments or
terminations of such plans, programs or benefits shall
apply
