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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Beckman Coulter, Inc.

Date:

2007

Size:

Preview shows 63KB of 272KB total

Price:

$71

ID:

#2799854

► Plans ► Agreements ► Agreements & Plans of Merger
► Technology ► Scientific & Technical Instruments

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AGREEMENT AND PLAN OF MERGER

by and among:

BECKMAN COULTER, INC.,

a Delaware corporation;

LOUISIANA ACQUISITION SUB, INC.,

a Delaware corporation; and

BIOSITE INCORPORATED,

a Delaware corporation

Dated as of March 24, 2007

TABLE OF CONTENTS


			Page
SECTION 1. THE OFFER			2
	1.1	The Offer	2
	1.2	Actions of Parent and Purchaser	3
	1.3	Actions of the Company	4
	1.4	Board of Directors	5
	1.5	Actions by Directors	6
	1.6	Top-Up Option	6

SECTION 2. THE MERGER; EFFECTIVE TIME			7
	2.1	Merger of the Purchaser into Company	7
	2.2	Effect of the Merger	7
	2.3	Effective Time	7
	2.4	Certificate of Incorporation and Bylaws; Officers and Directors	8
	2.5	Conversion of Company Shares.	8
	2.6	Closing of the Companys Transfer Books	9
	2.7	Payment for Company Shares	9
	2.8	Appraisal Rights	10
	2.9	Further Action	11

SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY			11
	3.1	Due Organization and Good Standing; Subsidiaries	11
	3.2	Authority; Binding Nature of Agreement	12
	3.3	Non-Contravention; Consents	12
	3.4	Certificate of Incorporation; Bylaws	13
	3.5	Capitalization.	13
	3.6	SEC Filings; Financial Statements	15
	3.7	Information Supplied	16
	3.8	Schedule 14D-9	16
	3.9	Internal Controls; Sarbanes-Oxley Act	17
	3.10	Absence of Certain Changes	18
	3.11	Title to Assets; Real Property	18
	3.12	Intellectual Property Rights	20

-i-

TABLE OF CONTENTS

(CONTINUED)


			Page
	3.13	Contracts	23
	3.14	Compliance with Legal Requirements	25
	3.15	Foreign Corrupt Practices and International Trade Sanctions	25
	3.16	Governmental Authorizations	25
	3.17	Legal Proceedings; Orders	26
	3.18	Regulatory Matters.	26
	3.19	Product Recalls	29
	3.20	Tax Matters.	29
	3.21	Employee Benefit Plans.	31
	3.22	Labor Matters.	34
	3.23	Environmental Matters	35
	3.24	Insurance	36
	3.25	Transactions with Affiliates	37
	3.26	Vote Required	37
	3.27	Section 203 of the DGCL; Company Rights Agreement	37
	3.28	Opinion of Financial Advisor	37
	3.29	Brokers	37

SECTION 4. REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER			38
	4.1	Due Organization	38
	4.2	Authority; Binding Nature of Agreement	38
	4.3	Non-Contravention; Consents	39
	4.4	Not an Interested Stockholder	39
	4.5	Financing	39
	4.6	Ownership of Company Shares	40
	4.7	Offer Documents	40
	4.8	Information in Schedule 14D-9 and Proxy Statement	40

SECTION 5. COVENANTS			40
	5.1	Interim Operations of the Company	40
	5.2	No Solicitation.	45

-ii-

TABLE OF CONTENTS

(CONTINUED)


			Page
	5.3	Board Recommendation.	47
	5.4	Meeting of the Companys Stockholders.	49
	5.5	Filings; Other Action.	50
	5.6	Access	51
	5.7	Interim Operations of Purchaser	52
	5.8	Publicity	52
	5.9	Stock Options/ESPP.	52
	5.10	Other Employee Benefits.	54
	5.11	Indemnification; Directors and Officers Insurance.	56
	5.12	Section 16 Matters	57
	5.13	Rule 14d-10(d)	57
	5.14	Cooperation Regarding Transition of Business	57
	5.15	Termination of Certain Company Plans	57
	5.16	Financing.	58
	5.17	Tax Matters.	59

SECTION 6. CONDITIONS TO EACH PARTYS OBLIGATION TO EFFECT THE MERGER			59
	6.1	Stockholder Approval	59
	6.2	No Injunctions; Laws	59
	6.3	Government Consents	59
	6.4	Offers Purchased	59

SECTION 7. TERMINATION			59
	7.1	Termination	60
	7.2	Effect of Termination	62
	7.3	Termination Fee.	62

SECTION 8. MISCELLANEOUS PROVISIONS			63
	8.1	Amendment	63
	8.2	Waiver.	63
	8.3	No Survival of Representations and Warranties	63
	8.4	Entire Agreement; Counterparts	63

-iii-

TABLE OF CONTENTS

(CONTINUED)


		Page
8.5	Applicable Law; Jurisdiction; Waiver of Jury Trial.	64
8.6	Payment of Expenses	65
8.7	Assignability; No Third Party Rights	65
8.8	Notices	65
8.9	Severability	66
8.10	Obligation of Parent	66
8.11	Specific Performance	67
8.12	Cumulative Remedies	67
8.13	Representation by Counsel	67
8.14	Construction	67



Schedule A		Products Under Development
Annex I		Offer Conditions
Exhibit A		Certain Definitions
Exhibit B		Certificate of Incorporation of Surviving Corporation

-iv-

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (Agreement) is made and entered into as of March 24, 2007, by and among BECKMAN COULTER, INC., a Delaware corporation (Parent); LOUISIANA ACQUISITION SUB, INC., a Delaware corporation and a wholly-owned Subsidiary of Parent (Purchaser); and BIOSITE INCORPORATED, a Delaware corporation (the Company). Certain capitalized terms used in this Agreement are defined in Exhibit A.

RECITALS

WHEREAS, the board of directors of each of Parent, Purchaser and the Company has approved the acquisition of the Company by Parent on the terms and conditions set forth in this Agreement;

WHEREAS, on the terms and subject to the conditions set forth herein, Purchaser has agreed to commence a tender offer (the Offer) to purchase all outstanding Company Shares, at a price of $85.00 per Company Share, in cash without interest (such price, or any higher price as may be paid in the Offer in accordance with this Agreement, the Offer Price);

WHEREAS, following consummation of the Offer, on the terms and subject to the conditions set forth herein Purchaser shall merge with and into the Company (the Merger) and each Company Share that is issued and outstanding immediately prior to the Effective Time (other than Company Shares held in the treasury of the Company or owned by Parent, Purchaser or any direct or indirect wholly-owned Subsidiary of Parent or the Company immediately prior to the Effective Time, which will be canceled with no consideration issued in exchange therefor, and other than Appraisal Shares) will be canceled and converted into the right to receive cash in an amount equal to the Offer Price (the Merger Consideration), all upon the terms and conditions set forth herein;

WHEREAS, the Company Board has, on the terms and subject to the conditions set forth herein, unanimously and duly adopted resolutions (i) determining that the transactions contemplated by this Agreement are advisable and fair to, and in the best interests of, the Company and its stockholders, (ii) adopting and approving this Agreement and the transactions contemplated hereby, including the Offer, the Merger and the agreement of merger (as such term is used in Section 251 of the Delaware General Corporation Law (the DGCL)), in accordance with the DGCL, (iii) directing that the agreement of merger (as such term is used in Section 251 of the DGCL) contained in this Agreement be submitted to the stockholders of the Company for adoption (unless the Merger is consummated in accordance with Section 253 of the DGCL as contemplated herein), and (iv) recommending that the Companys stockholders accept the Offer, tender their Company Shares to Purchaser pursuant to the Offer, and adopt the agreement of merger (as such term is used in Section 251 of the DGCL) set forth in this Agreement;

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