According to the complaint filed on February 25, 2011, on February 7, 2011, a definitive agreement was announced commencing a tender offer to acquire all of the outstanding shares of Beckman Coulter for $83.50 per share in cash. The Proposed Transaction is valued at $6.8 billion, including debt assumed and net of cash acquired. Danaher commenced the tender offer on February 15, 2011, and it is scheduled to expire on March 23, 2011.
Defendants have exacerbated their breaches of fiduciary duty by agreeing to lock up
the Proposed Transaction with deal protection devices that preclude other bidders from making a successful competing offer for the Company. Specifically, pursuant to the merger agreement dated February 6, 2011 (the “Merger Agreement”), defendants agreed to: (i) a strict no-solicitation provision that prevents the Company from soliciting other potential acquirors or even in continuing discussions and negotiations with potential acquirors; (ii) a provision that provides Danaher with three business days to match any competing proposal in the event one is made; and (iii) a provision
that requires the Company to pay Danaher a termination fee of $165 million in order to enter into a transaction with a superior bidder. These provisions substantially and improperly limit the Board’s ability to act with respect to investigating and pursuing superior proposals and alternatives including a sale of all or part of Beckman Coulter.
On June 30, 2011, the Honorable Gary A. Fees signed an Order to Show Cause why this case should not be dismissed, for lack of prosecution. The plaintiffs must respond within twenty days of this order. On August 18, 2011, the Court dismissed the action without prejudice for lack of prosecution and for failure to respond to the Court's Order to Show Cause.