EXHIBIT 10.1
TENDER AND STOCKHOLDER SUPPORT
AGREEMENT
This TENDER AND STOCKHOLDER SUPPORT
AGREEMENT (this “ Agreement ”), dated
March 24, 2007, is 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 Kim D.
Blickenstaff and Rita Blickenstaff (the “ Stockholder
”), a stockholder of Biosite Incorporated, a Delaware
corporation (the “ Company ”).
WHEREAS, Parent, Purchaser and the
Company propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the “ Merger Agreement
”), which provides, among other things, for Purchaser to
conduct a tender offer for all of the issued and outstanding
Company Shares (as defined below) of the Company (the “
Offer ”) and the merger of Purchaser with and into the
Company, with the Company continuing as the surviving corporation
(the “ Merger ”), upon the terms and subject to
the conditions set forth in the Merger Agreement (capitalized terms
used herein without definition shall have the respective meanings
specified in the Merger Agreement);
WHEREAS, the Stockholder owns
241,946 issued and outstanding shares of common stock, par value
$0.001 per share, of the Company (the “ Company Shares
”) (such Company Shares, together with any other issued and
outstanding shares of capital stock of the Company acquired by the
Stockholder after the date hereof and prior to the earlier of the
Effective Time and the termination of all of the
Stockholder’s obligations under this Agreement, including any
Company Shares acquired by means of purchase, dividend or
distribution, or issued upon the exercise of any warrants or
options, or the conversion of any convertible securities or
otherwise, being collectively referred to herein as the “
Shares ”); and
WHEREAS, as a condition to the
willingness of Parent and Purchaser to enter into the Merger
Agreement and as an inducement and in consideration therefor, the
Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements set forth
herein and in the Merger Agreement, and intending to be legally
bound hereby, the parties hereto agree as follows:
SECTION 1. Representations and
Warranties of the Stockholder . The Stockholder hereby
represents and warrants to Parent and Purchaser as
follows:
(a) The Stockholder (i) is the
record or beneficial owner, and has good and marketable title to,
the Shares, free and clear of any and all liens, claims, security
interests, proxies, voting trusts or agreements, options, rights,
understandings or arrangements or any other encumbrances whatsoever
on title, transfer, or exercise of any rights of a stockholder in
respect of such Shares (collectively, “ Encumbrances
”); (ii) does not own, of record or beneficially, any
shares of capital stock of the Company (or rights to acquire any
such shares) other than the Shares and other than Company Options
to purchase up to 437,811 Company Shares); and (iii) has the
sole right to vote, sole power
of disposition, sole power to issue
instructions with respect to the matters set forth in Sections 3,
4, and 6 hereof, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the
Stockholder’s Shares, with no material limitations
qualification or restrictions on such rights, subject to applicable
federal securities law and the terms of this Agreement.
(b) The Stockholder has the legal
capacity and all requisite power and authority to execute and
deliver this Agreement and to perform the Stockholder’s
obligations hereunder and consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder, and constitutes a valid and binding
obligation of the Stockholder enforceable in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law).
(c) The execution and delivery of
this Agreement and the consummation by the Stockholder of the
transactions contemplated hereby will not (i) result in a
violation of, or a default under, or conflict with any contract,
trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Stockholder is a party or by
which the Stockholder or the Stockholder’s assets are bound,
or (ii) violate, or require any consent, approval, or notice
under, any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Stockholder.
SECTION 2. Representations and
Warranties of Parent and Purchaser . Each of Parent and
Purchaser hereby, jointly and severally, represents and warrants to
the Stockholder as follows:
(a) Each of Parent and Purchaser is
a corporation duly organized, validly existing and in good standing
(with respect to jurisdictions which recognize such concept) under
the laws of the jurisdiction in which it is incorporated, and each
of Parent and Purchaser has all requisite corporate power and
corporate authority to execute and deliver this Agreement and to
perform its obligations hereunder and consummate the transactions
contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this
Agreement.
(b) This Agreement has been duly
authorized, executed and delivered by each of Parent and Purchaser,
and constitutes a valid and binding obligation of Parent and
Purchaser enforceable in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law).
(c) The execution and delivery of
this Agreement and the consummation by Parent and Purchaser of the
transactions contemplated hereby will not (i) result in a
violation of, or a default under, or conflict with (x) any
provisions of the
2
organizational documents of Parent
or Purchaser or (y) any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to
which such Parent or Purchaser is a party or by which Parent or
Purchaser or their assets are bound, or (ii) violate, or
require any consent, approval, or notice under, any provision of
any judgment, order, decree, statute, law, rule or regulation
applicable to Parent or Purchaser.
SECTION 3. Tender of the
Shares .
(a) Unless this Agreement shall have
been terminated in accordance with its terms, and subject to
Section 4, the Stockholder hereby agrees that he shall
(i) tender (and deliver any certificates evidencing) his
Shares, or cause his Shares to be tende
