Exhibit 10.1
Execution
Version
VOTING
AGREEMENT
This VOTING AGREEMENT (the “
Agreement ”), dated as of April 5, 2007, is made among
Agilent Technologies, Inc., a Delaware corporation (“
Acquiror ”), and Joseph A. Sorge, M.D., J.A. Sorge
Trust I, J.A. Sorge Trust II, J.A. Sorge Trust III, J.A. Sorge
Trust IV, Joseph A. Sorge Charitable Remainder Trust dated December
26, 2002 and BioSenses Partners, L.P. (collectively, the “
Stockholder ”).
WHEREAS , Acquiror, Jackson Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of Acquiror
(“ Merger Sub ”) and Stratagene Corporation, a
Delaware corporation (the “ Company ”) propose
to enter into an Agreement and Plan of Merger, dated as of the date
hereof (as the same may be amended or supplemented, the “
Merger Agreement ”) providing for the merger of Merger
Sub with and into the Company (the “ Merger
”). For the purposes of this Agreement, capitalized
terms that are used but not defined herein shall have the
respective meanings ascribed thereto in the Merger
Agreement.
WHEREAS , the Stockholder is the record or beneficial
owner of the number of shares of common stock, par value $0.0001,
of the Company (the “ Capital Shares ”) set
forth on the signature page hereto (such securities, as they may be
adjusted by stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by the Company,
together with securities that may be acquired either beneficially
or of record after the date hereof by the Stockholder, including
Capital Shares issuable upon the exercise of options to purchase
Capital Shares (as the same may be adjusted as aforesaid), being
collectively referred to herein as the “ Securities
”).
WHEREAS , pursuant to the Merger, among other things,
all of the issued and outstanding shares of capital stock of the
Company will be converted into the right to receive the
consideration set forth in the Merger Agreement, all upon the terms
and subject to the conditions set forth in the Merger
Agreement.
WHEREAS , as a condition to its willingness to enter
into the Merger Agreement, Acquiror has requested that the
Stockholder enter into this Agreement.
NOW, THEREFORE
, to induce Acquiror to enter into,
and in consideration of it entering into, the Merger Agreement, and
in consideration of the premises and the representations,
warranties and agreements contained herein, the parties agree as
follows:
1.
Covenants of the Stockholder . The Stockholder agrees
as follows:
(a)
The Stockholder will not directly or indirectly: (i) sell,
transfer, exchange, pledge, encumber assign or otherwise dispose of
(including by gift), or enter into any Contract, option or other
arrangement (including any profit sharing arrangement) or
understanding with respect to the sale, transfer, pledge,
assignment or other disposition of (a “ Transfer ”), the Securities
owned by the Stockholder to any person other than Acquiror or
Acquiror’s designee, other than Permitted Transfers; (ii)
enter into any voting agreement or
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arrangement,
whether by proxy, voting agreement, voting trust, power-of-attorney
or otherwise, with respect to the Securities (other than this
Agreement); or (iii) take any other action that would in any way
make any representation or warranty of the Stockholder contained
herein untrue or incorrect or restrict, limit or interfere with the
performance of his obligations hereunder or the transactions
contemplated hereby or, in his capacity as a stockholder of the
Company, prevent or delay the consummation of the transactions
contemplated hereby. For purposes of this Agreement,
“ Permitted
Transfers ” shall mean (i) the
Transfer of up to an aggregate of 73,000 shares of Capital
Securities per any calendar month as described in the 10b5-1 Sales
Plan by and between Joseph A. Sorge, M.D. and Pacific Growth
Equities, LLC, dated as of June 8, 2006, and (ii) inter-Stockholder
Transfers.
(b)
Until the Merger is consummated or the Merger Agreement is
terminated, the Stockholder shall not, nor shall the Stockholder
permit any of its Affiliates, officers, directors, trustees,
investment bankers, financial advisers, attorneys, accountants,
advisors, agents, financing sources (and their respective advisors)
and/or other representatives (collectively, “
Representatives ”) to, directly or
indirectly, (i) solicit, initiate, seek, endorse, recommend,
facilitate or support or knowingly encourage any inquiry, offer or
proposal from, furnish any non-public information concerning the
Company and/or its subsidiaries to, or participate in any
discussions or negotiations with, any Person regarding any
Alternative Transaction, (ii) approve, endorse or recommend any
Alternative Transaction (except to the extent expressly permitted
by the Merger Agreement), or (iii) enter into any agreement,
letter of intent or other similar document or any Contract (whether
binding or not) relating to or contemplating any Alternative
Transaction Proposal, except and solely to the extent that the
Company, the Special Committee or the Company Board, as applicable,
are expressly permitted to engage in any of the foregoing
activities pursuant to Section 5.2(c) and 5.2(d) of the Merger
Agreement. The Stockholder shall, and shall cause its
Representatives to, immediately cease any and all existing
activities, discussions or negotiations with any third parties
conducted heretofore with respect to any Alternative Transaction
Proposal and, upon Acquiror’s request, shall request the
prompt return or destruction of all confidential information
previously furnished to any Person with which the Stockholder or
any of its Representatives have engaged in any such activities
within the 12-month period preceding the date of this Agreement.
Without limiting the foregoing, it is understood that any violation
of the restrictions set forth in the preceding sentence by a
Representative of the Stockholder shall be deemed to be a violation
of this Section 1(b) by the Stockholder.
(c)
At every meeting of stockholders of the Company called with respect
to any of the following, and at every adjournment or postponement
thereof, and on every action or approval by written consent of
stockholders of the Company with respect to any of the following,
the Stockholder shall vote, to the extent not voted by the
person(s) appointed as proxies under Section 2 , or shall
cause the record holder of any Securities on the applicable record
date to appear (in person or by proxy) and vote, the Securities:
(i) in favor of adoption of the Merger Agreement and approval of
the Merger contemplated thereby, including each other action,
agreement and transaction contemplated by or in furtherance of the
Merger Agreement, the Merger and this Agreement; (ii) against
approval of any proposal made in opposition to, or in competition
with, consummation of the Merger and the other transactions
contemplated by the Merger Agreement; and (iii) against approval of
any Alternative Transaction. The Stockholder further agrees
not to commit or agree to take any action inconsistent with the
foregoing.
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(d)
The Stockholder will not exercise any appraisal or
dissenters’ rights to which he may be entitled whether under
applicable laws or otherwise in connection with the Merger and the
other transactions contemplated by the Merger
Agreement.
(e)
The Stockholder hereby gives any consents or waivers that are
reasonably required for the consummation of the Merger under the
terms of any agreement or instrument to which the Stockholder is a
party or subject or in respect of any rights the Stockholder may
have in connection with the Merger or the other transactions
provided for in the Merger Agreement. Without limiting the
generality or effect of the foregoing, the Stockholder hereby
waives any and all rights to contest or object to the execution and
delivery of the Merger Agreement, the actions of the Company Board
or the Special Committee in approving and recommending the Merger,
the consummation of the Merger and the other transactions provided
for in the Merger Agreement or to seek an injunction to the
Merger.
2.
Grant of Irrevocable Proxy Coupled with an Interest; Appointment
of Proxy . Upon the Stockholder’s execution and
delivery of this Agreement, the Stockholder hereby irrevocably and
unconditionally revokes any and all proxies granted with respect to
the Securities other than the proxy granted pursuant to this
Section 2 and agrees not to grant any subsequent proxies or
enter into any agreement or understanding with any Person to vote
or give instructions with respect to the Securities in any manner
inconsistent with the terms of this Agreement and the proxy granted
pursuant to this Section 2 . By entering into this
Agreement, the Stockholder hereby irrevocably and unconditionally
grants a proxy appointing the officers of Acquiror, and each of
them, as Stockholder’s sole and exclusive attorneys-in-fact
and proxies, with full power of substitution and resubstitution,
for and in the Stockholder’s name, to vote, express, consent
or dissent, or otherwise to exercise all voting and related rights
with respect to the Securities at every annual, special or
adjourned meeting of the stockholders of the Company, and in every
written consent in lieu of any such meeting, as specifically set
forth in Section 1(c) as to the matters specified in
Section 1(c) . The proxy granted by the Stockholder
pursuant to this Section 2 is coupled with an interest and
is irrevocable until the termination of this Agreement in
accordance with its terms and is granted in consideration of
Acquiror entering into the Merger Agreement and incurring certain
related fees and expenses. Such irrevocable proxy is executed
and intended to be irrevocable in accordance with Section 212(c) of
Delaware Law.
3.
Representations and Warranties of the Stockholder .
The Stockholder hereby represents and warrants to A
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