EXHIBIT 10.2


 


AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT


 


THIS
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Agreement”) dated as of February 15,
2008 (the “Effective Date”)
between (a) SILICON VALLEY BANK,
a California corporation and with a loan production office located at One
Newton Executive Park, Suite 200, 2221 Washington Street, Newton,
Massachusetts 02462 (“Bank”), and (b) CALIPER LIFE SCIENCES, INC., a Delaware
corporation (“Caliper”), NOVASCREEN BIOSCIENCES CORPORATION, a
Maryland corporation (“NovaScreen”),
XENOGEN CORPORATION, a Delaware
corporation (“Xenogen”), and XENOGEN BIOSCIENCES CORPORATION, an Ohio
corporation (“Xenogen Biosciences”)
(hereinafter, Caliper, NovaScreen, Xenogen, and Xenogen Biosciences are jointly
and severally, individually and collectively, referred to as “Borrower”), amends and restates a certain
Loan and Security Agreement by and among Borrower and Bank dated as of August 9,
2006, as amended, and provides the terms on which Bank shall lend to Borrower
and Borrower shall repay Bank. The parties agree as follows:


 


1                                         ACCOUNTING
AND OTHER TERMS


 


1.1                               Accounting
terms not defined in this Agreement shall be construed following GAAP. Calculations
and determinations must be made following GAAP. Capitalized terms not otherwise
defined in this Agreement shall have the meanings set forth in Section 13.
All other terms contained in this Agreement, unless otherwise indicated, shall
have the meaning provided by the Code to the extent such terms are defined
therein.


 


1.2                               Agented
Loan Arrangement.


 


(a)                                  Designation
of Agent. Each Borrower hereby designates Caliper as the agent (the “Agent”) of each Borrower to discharge the
duties and responsibilities of the Agent as provided herein.


 


(b)                                 Operation
of Loan Arrangement.


 


(i)                                     Except as otherwise permitted by Bank, Credit
Extensions hereunder shall be requested solely by the Agent as agent for each
Borrower.


 


(ii)                                  Any Credit Extension which may be made by
Bank under this Agreement and which is directed to the Agent is received by the
Agent in trust for that Borrower who is intended to receive such Credit
Extension. The Agent shall distribute the proceeds of any such Credit Extension
solely to that Borrower. Each Borrower shall be directly indebted to Bank for
each Credit Extension distributed to any Borrower by the Agent, together with
all accrued interest thereon, as if that amount had been advanced directly by
Bank to a Borrower (whether or not the subject Credit Extension was based upon
the accounts and/or inventory or other assets of the Borrower which actually
received such distribution), in addition to which each Borrower shall be liable
to Bank for all Obligations under this Agreement, whether or not the proceeds
of the Credit Extension are distributed to any particular Borrower.


 


(iii)                               Bank shall have no responsibility to inquire
as to the distribution of Credit Extensions made by Bank through the Agent as
described herein.


 


(c)                                  Credit
Extensions Directly to Borrower.


 


(i)                                     If, for any reason, and at any time during
the term of this Agreement:


 


(A)                              any Borrower, including the Agent, as agent
for each Borrower, shall be unable to, or prohibited from carrying out the
terms and conditions of this Agreement (as determined by Bank in Bank’s sole
and absolute discretion); or


 


(B)                                Bank deems it inexpedient (in Bank’s sole and
absolute discretion) to continue making Credit Extensions to or for the account
of any particular Borrower, or to channel such Credit Extensions through the
Agent, then Bank may make Credit Extensions directly to such Borrower as Bank
determines to be expedient, which Credit 


 

















 


Extensions may be made without regard to the
procedures otherwise included in this Article 1.


 


(ii)                                  In the event that Bank determines to forgo
the procedures included herein pursuant to which Credit Extensions are to be
channeled through the Agent, then Bank may designate one or more Borrower to
fulfill the financial and other reporting requirements otherwise imposed herein
upon the Agent.


 


(iii)                               Each Borrower shall remain liable to Bank for
the payment and performance of all Obligations (which payment and performance
shall continue to be secured by all Collateral) notwithstanding any
determination by Bank to cease making Credit Extensions to or for the benefit
of any Borrower.


 


(d)                                 Continuation
of Authority of Agent. The authority of the Agent to request Credit
Extensions on behalf of, and to bind, each Borrower, shall continue unless and
until Bank acts as provided in Section 1.2(c) above, or Bank actually
receives:


 


(i)                                     written notice of: (i) the termination
of such authority, and (ii) the subsequent appointment of a successor
Agent, which notice is executed by the respective Presidents of each Borrower
then eligible for borrowing under this Agreement; and


 


(ii)                                  written notice from the successor Agent (i) accepting
such appointment; (ii) acknowledging that the removal and appointment has
been effected by the respective Presidents of each Borrower eligible for
borrowing under the within Agreement; and (iii) acknowledging that from
and after the date of appointment, the newly appointed Agent shall be bound by
the terms hereof, and that as used herein, the term “Agent” shall mean and
include the newly appointed Agent.


 


(e)                                  Indemnification.
The Agent and each Borrower respectively shall indemnify, defend, and save and
hold Bank harmless from and against any liabilities, claims, demands, expenses,
or losses made against or suffered by Bank on account of, or arising out of,
this Agreement, Bank’s reliance upon Credit Extension requests made by the Agent,
or any other action taken by Bank hereunder or under any of Bank’s various
agreements with the Agent and/or any Borrower and/or any other Person arising
under this Agreement.


 


2                                         LOAN
AND TERMS OF PAYMENT


 


2.1                               Promise
to Pay. Borrower hereby unconditionally promises to pay Bank the
outstanding principal amount of all Credit Extensions and accrued and unpaid
interest thereon as and when due in accordance with this Agreement.


 


2.1.1                     Revolving
Advances.


 


(a)                  Availability.
Subject to the terms and conditions of this Agreement, Bank shall make Advances
not exceeding the Availability Amount. Amounts borrowed under the Revolving
Line may be repaid and, prior to the Revolving Line Maturity Date, reborrowed,
subject to the applicable terms and conditions precedent herein.


 


(b)                 Termination;
Repayment. The Revolving Line terminates on the Revolving Line Maturity
Date, when the principal amount of all Advances, the unpaid interest thereon,
and all other Obligations relating to the Revolving Line shall be immediately
due and payable.


 


(c)                  Prepayment.
Borrower shall have the option to prepay the Revolving Line at anytime,
provided Borrower (i) provides written notice to Bank of its election to
prepay the Revolving Line, and (ii) pays, on the date of such prepayment (A) all
outstanding principal plus accrued interest, (B) the Minimum Usage Fee
which would be due, and (C) all other sums, if any, that shall have become
due and payable.


 


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2.1.2                     Letters of
Credit Sublimit.


 


(a)                                  As
part of the Revolving Line, Bank shall issue or have issued Letters of Credit
for Borrower’s account. The face amount of outstanding Letters of Credit
(including drawn but unreimbursed Letters of Credit and any Letter of Credit
Reserve) may not exceed $5,000,000.00. Such aggregate amounts utilized
hereunder shall at all times reduce the amount otherwise available for Advances
under the Revolving Line. If, on the Revolving Maturity Date, there are any
outstanding Letters of Credit, then on such date Borrower shall provide to Bank
cash collateral in an amount equal to 105% of the face amount of all such
Letters of Credit plus all interest, fees, and costs due or to become due in
connection therewith (as estimated by Bank in its good faith business judgment),
to secure all of the Obligations relating to said Letters of Credit. All
Letters of Credit shall be in form and substance acceptable to Bank in its sole
discretion and shall be subject to the terms and conditions of Bank’s standard
Application and Letter of Credit Agreement (the “Letter of Credit Application”). Borrower agrees to execute any
further documentation in connection with the Letters of Credit as Bank may
reasonably request. Borrower further agrees to
be bound by the regulations and interpretations of the issuer of any Letters of
Credit guarantied by Bank and opened for Borrower’s account or by Bank’s
interpretations of any Letter of Credit issued by Bank for Borrower’s account,
and Borrower understands and agrees that Bank shall not be liable for any
error, negligence, or mistake, whether of omission or commission, in following
Borrower’s instructions or those contained in the Letters of Credit or any
modifications, amendments, or supplements thereto.


 


(b)                                 The
obligation of Borrower to immediately reimburse Bank for drawings made under
Letters of Credit shall be absolute, unconditional, and irrevocable, and shall
be performed strictly in accordance with the terms of this Agreement, such
Letters of Credit, and the Letter of Credit Application.


 


(c)                                  Borrower
may request that Bank issue a Letter of Credit payable in a Foreign Currency. If
a demand for payment is made under any such Letter of Credit, Bank shall treat
such demand as an Advance to Borrower of the equivalent of the amount thereof (plus
fees and charges in connection therewith such as wire, cable, SWIFT or similar
charges) in Dollars at the then-prevailing rate of exchange in San Francisco,
California, for sales of the Foreign Currency for transfer to the country
issuing such Foreign Currency.


 


(d)                                 To
guard against fluctuations in currency exchange rates, upon the issuance of any
Letter of Credit payable in a Foreign Currency, Bank shall create a reserve
(the “Letter of Credit Reserve”)
under the Revolving Line in an amount equal to ten percent (10%) of the face
amount of such Letter of Credit. The amount of the Letter of Credit Reserve may
be adjusted by Bank from time to time to account for fluctuations in the
exchange rate. The availability of funds under the Revolving Line shall be
reduced by the amount of such Letter of Credit Reserve for as long as such
Letter of Credit remains outstanding.


 


2.2                               Overadvances.
If, at any time Borrower’s Unrestricted Cash is less than Twenty-Five Million
Dollars ($25,000,000.00) and the Credit Extensions under Section 2.1.1 and
Section 2.1.2 exceed the lesser of either (a) the Revolving Line or (b) the
Borrowing Base, Borrower shall immediately pay to Bank in cash such excess.


 


2.3                               Payment
of Interest on the Credit Extensions.


 


(a)                  Interest
Rate. Subject to Section 2.3(b), the principal amount outstanding
under the Revolving Line shall accrue interest at a floating per annum rate
equal to: (x) if Borrower’s Unrestricted Cash is equal to or greater than
Twenty-Five Million Dollars ($25,000,000.00), the Prime Rate, or (y) if
Borrower’ Unrestricted Cash is less than Twenty-Five Million Dollars
($25,000,000.00), one-half of one percentage point (.50%) above the Prime Rate,
which interest shall be payable monthly in accordance with Section 2.3(f) below.
Any changes to the applicable interest rate due as set forth in (x) or (y) above,
shall be effective on the first day of the month following such event.


 


(b)                 Default
Rate. Immediately upon the occurrence and during the continuance of an
Event of Default, Obligations shall bear interest at a rate per annum which is
two percentage points above the rate effective immediately before the Event of
Default (the “Default Rate”). Payment
or acceptance of the increased interest rate provided in this Section 2.3(b) is
not a permitted alternative to timely payment and shall not constitute a waiver
of any Event of Default or otherwise prejudice or limit any rights or remedies
of Bank.


 


(c)                  Adjustment
to Interest Rate. Changes to the interest rate of any Credit Extension based
on changes to the Prime Rate shall be effective on the effective date of any
change to the Prime Rate and to the extent of any such change.


 


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(d)                 360-Day
Year. Interest shall be computed on the basis of a 360-day year for the
actual number of days elapsed.


 


(e)                  Debit
of Accounts. Bank may debit any of Borrower’s deposit accounts, including
the Designated Deposit Account, for principal and interest payments or any
other amounts Borrower owes Bank when due. These debits shall not constitute a
set-off.


 


(f)                    Payments.
Unless otherwise provided, interest is payable monthly on the first calendar
day of each month. Payments of principal and/or interest received after 12:00
noon Eastern time are considered received at the opening of business on the
next Business Day. When a payment is due on a day that is not a Business Day,
the payment is due the next Business Day and additional fees or interest, as
applicable, shall continue to accrue.


 


2.4                               Fees.
Borrower shall pay to Bank:


 


(a)                  Commitment
Fee. A non-refundable commitment fee of $100,000.00 fully earned as of the
Effective Date and due and payable upon the earliest to occur of: (i) July 1,
2008, (ii) the termination of this Agreement, or (iii) the occurrence
of an Event of Default; and


 


(b)                 Letter
of Credit Fee. Bank’s customary fees and expenses for the issuance or
renewal of Letters of Credit, upon the issuance, each anniversary of the
issuance, and the renewal of such Letter of Credit; and


 


(c)                  Bank
Expenses. All Bank Expenses (including reasonable attorneys’ fees and
expenses for documentation and negotiation of this Agreement) incurred through
and after the Effective Date, when due.


 


3                                         CONDITIONS
OF LOANS


 


3.1                               Conditions
Precedent to Initial Credit Extension. Bank’s obligation to make the
initial Credit Extension is subject to the condition precedent that Bank shall
have received, in form and substance satisfactory to Bank, such documents, and
completion of the following matters:


 


(a)                  Duly
executed original signatures to the Loan Documents to which it is a party;


 


(b)                 Duly
executed original signatures to the Control Agreements;


 


(c)                  Each
Borrower shall have delivered its Operating Documents and a good standing
certificate certified by the Secretary of State of the state in which such
Borrower is incorporated as of a date no earlier than thirty (30) days prior to
the Effective Date;


 


(d)                 Duly
executed original signatures to the completed Borrowing Resolutions for each
Borrower;


 


(e)                  Bank
shall have received certified copies, dated as of a recent date, of financing
statement searches, as Bank shall request, accompanied by written evidence
(including any UCC termination statements) that the Liens indicated in any such
financing statements either constitute Permitted Liens or have been or, in
connection with the initial Credit Extension, will be terminated or released;
and


 


(f)                    Borrower
shall have paid the fees and Bank Expenses then due as specified in Section 2.4
hereof.


 


3.2                               Conditions
Precedent to all Credit Extensions. Bank’s obligations to make each Credit
Extension, including the initial Credit Extension, is subject to the following:


 


(a)                  except
as otherwise provided in Section 3.4, timely receipt of an executed
Payment/Advance Form;  and


 


(b)                 the
representations and warranties in Section 5 shall be true in all material
respects on the date of the Payment/Advance Form and on the Funding Date
of each Credit Extension; provided, however, that 


 


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such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or modified by
materiality in the text thereof; and provided, further that those
representations and warranties expressly referring to a specific date shall be true,
accurate and complete in all material respects as of such date, and no Default
or Event of Default shall have occurred and be continuing or result from the
Credit Extension. Each Credit Extension is Borrower’s representation and
warranty on that date that the representations and warranties in Section 5
remain true in all material respects; provided, however, that such materiality
qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof; and
provided, further that those representations and warranties expressly referring
to a specific date shall be true, accurate and complete in all material
respects as of such date; and


 


(c)                  there
has not been a Material Adverse Change.


 


3.3                               Covenant
to Deliver.


 


Borrower agrees to deliver to Bank each item required to be delivered
to Bank under this Agreement as a condition to any Credit Extension. Borrower
expressly agrees that the extension of a Credit Extension prior to the receipt
by Bank of any such item shall not constitute a waiver by Bank of Borrower’s
obligation to deliver such item, and any such extension in the absence of a
required item shall be in Bank’s sole discretion.


 


3.4                               Procedures
for Borrowing. Subject to the prior satisfaction of all other applicable
conditions to the making of an Advance set forth in this Agreement, to obtain
an Advance, Agent shall notify Bank (which notice shall be irrevocable) by
electronic mail, facsimile, or telephone by 12:00 noon Eastern time on the
Funding Date of the Advance. Together with any such electronic or facsimile
notification, Agent shall deliver to Bank by electronic mail or facsimile a
completed Payment/Advance Form executed by a Responsible Officer or his or
her designee. Bank may rely on any telephone notice given by a person whom Bank
believes is a Responsible Officer or designee. Bank shall credit Advances to
the Designated Deposit Account. Bank may make Advances under this Agreement
based on instructions from a Responsible Officer or his or her designee or
without instructions if the Advances are necessary to meet Obligations which
have become due.


 


4                                         CREATION
OF SECURITY INTEREST


 


4.1                               Grant
of Security Interest. Borrower hereby grants Bank, to secure the payment
and performance in full of all of the Obligations, a continuing security
interest in, and pledges to Bank, the Collateral, wherever located, whether now
owned or hereafter acquired or arising, and all proceeds and products thereof. Borrower
represents, warrants, and covenants that the security interest granted herein
is and shall at all times continue to be a first priority perfected security
interest in the Collateral (subject only to Permitted Liens that may have
superior priority to Bank’s Lien under this Agreement). If Borrower shall
acquire a commercial tort claim, Borrower shall promptly notify Bank in a
writing signed by Borrower of the general details thereof and grant to Bank in
such writing a security interest therein and in the proceeds thereof, all upon
the terms of this Agreement, with such writing to be in form and substance
reasonably satisfactory to Bank.


 


If this Agreement
is terminated, Bank’s Lien in the Collateral shall continue until the
Obligations (other than inchoate indemnity obligations) are repaid in full in
cash. Upon payment in full in cash of the Obligations and
at such time as Bank’s obligation to make Credit Extensions has terminated,
Bank shall, at Borrower’s sole cost and expense, release its Liens in the
Collateral and all rights therein shall revert to Borrower.


 


4.2                               Authorization
to File Financing Statements. Borrower hereby authorizes Bank to file
financing statements, without notice to Borrower, with all appropriate
jurisdictions to perfect or protect Bank’s interest or rights hereunder,
including a notice that any disposition of the Collateral, by either Borrower
or any other Person, shall be deemed to violate the rights of Bank under the
Code.


 


5                                         REPRESENTATIONS
AND WARRANTIES


 


Borrower
represents and warrants as follows:


 


5.1                               Due
Organization and Authorization. Borrower and each of its Subsidiaries are
duly existing and in good standing, as Registered Organizations in their
respective jurisdictions of formation and are qualified and licensed to do
business and are in good standing in any jurisdiction in which the conduct of
their business or their ownership of property requires that they be qualified
except where the failure to do so could not reasonably be 


 


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expected to have a material adverse effect on Borrower’s
business. Borrower has previously delivered to Bank the Perfection Certificate.
Borrower represents and warrants to Bank that (a) Borrower’s exact legal
name is that indicated on the Perfection Certificate and on the signature page hereof;
(b) Borrower is an organization of the type and is organized in the
jurisdiction set forth in the Perfection Certificate; (c) the Perfection
Certificate accurately sets forth Borrower’s organizational identification
number or accurately states that Borrower has none; (d) the Perfection
Certificate accurately sets forth Borrower’s place of business, or, if more
than one, its chief executive office as well as Borrower’s mailing address (if
different than its chief executive office); (e) Borrower (and each of its
predecessors) has not, in the past five (5) years, changed its
jurisdiction of formation, organizational structure or type, or any
organizational number assigned by its jurisdiction; and (f) all other
information set forth on the Perfection Certificate pertaining to Borrower and
each of its Subsidiaries is accurate and complete in all material respects. If
Borrower is not now a Registered Organization but later becomes one, Borrower
shall promptly notify Bank of such occurrence and provide Bank with Borrower’s
organizational identification number.


 


The execution, delivery
and performance of the Loan Documents have been duly authorized, and do not
conflict with Borrower’s organizational documents, nor constitute an event of
default under any material agreement by which Borrower is bound. Borrower is
not in default under any agreement to which it is a party or by which it is
bound in which the default could reasonably be expected to have a material
adverse effect on Borrower’s business.


 


5.2                               Collateral.
Borrower has good title to, has rights in, and the power to transfer each item
of the Collateral upon which it purports to grant a Lien hereunder, free and
clear of any and all Liens except Permitted Liens. Borrower has no deposit
accounts other than the deposit accounts with Bank, the deposit accounts, if
any, described in the Perfection Certificate delivered to Bank in connection
herewith, or of which Borrower has given Bank notice and taken such actions as
are necessary to give Bank a perfected security interest therein. The Accounts
are bona fide, existing obligations of the Account Debtors.


 


The Collateral is not in
the possession of any third party bailee (such as a warehouse) except (x) as
otherwise provided in the Perfection Certificate and (y) Equipment or
Inventory in the possession of third party carriers in the ordinary course of
business for delivery to Borrower or to customers of Borrower and its
Subsidiaries. None of the components of the Collateral shall be maintained at
locations other than as provided in the Perfection Certificate or as Borrower
has given Bank notice pursuant to Section 7.2. In the event that Borrower,
after the date hereof, intends to store or otherwise deliver any portion of the
Collateral to a bailee, then Borrower will first receive the written consent of
Bank and such bailee must execute and deliver a bailee agreement in form and
substance satisfactory to Bank in its sole discretion.


 


All Inventory is in all
material respects of good and marketable quality, free from material defects.


 


Except as noted on the
Perfection Certificate, Borrower is not a party to, nor is bound by, any
material license or other agreement with respect to which Borrower is the
licensee that prohibits or otherwise restricts Borrower from granting a
security interest in Borrower’s interest in such license or agreement or any
other property. Borrower shall provide written notice to Bank within ten (10) days
of entering or becoming bound by any such license or agreement which is
reasonably likely to have a material impact on Borrower’s business or financial
condition (other than over-the-counter software that is commercially available
to the public). Borrower shall take such steps as Bank requests to obtain the
consent of, or waiver by, any person whose consent or waiver is necessary for
all such licenses or contract rights to be deemed “Collateral” and for Bank to
have a security interest in it that might otherwise be restricted or prohibited
by law or by the terms of any such license or agreement (such consent or
authorization may include a licensor’s agreement to a contingent assignment of
the license to Bank if Bank determines that is necessary in its good faith
judgment), whether now existing or entered into in the future. Notwithstanding
the foregoing, the terms of the preceding sentence shall not apply to, and the
Collateral shall not include, license agreements solely for the use of
Intellectual Property of a third party, with respect to which license Borrower
is the licensee.


 


5.3                               Accounts
Receivable. For any Eligible Account  in
any Borrowing Base Certificate, all statements made and all unpaid balances
appearing in all invoices, instruments and other documents evidencing such
Eligible Accounts are and shall be true and correct and all such invoices,
instruments and other documents, and all of Borrower’s Books are genuine and in
all respects what they purport to be. All sales and other transactions
underlying or giving rise to each Eligible Account shall comply in all material
respects with all applicable laws and governmental rules and regulations. Borrower
has no knowledge of any actual or imminent Insolvency Proceeding of any Account
Debtor whose accounts are an Eligible Account in any Borrowing Base Certificate.
To the best of Borrower’s knowledge, all signatures and endorsements on all
documents, instruments, and agreements relating to 


 


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all Eligible Accounts are genuine, and all such
documents, instruments and agreements are legally enforceable in accordance
with their terms.


 


5.4                               Litigation.
Except as disclosed in Borrower’s Report of Form 10-K for the year ended December 31,
2006 and in Xenogen’s Report of Form 10-K for the year ended December 31,
2006 and as otherwise disclosed to Bank in writing prior to the Effective Date,
there are no actions or proceedings pending or, to the knowledge of the
Responsible Officers, threatened in writing by or against Borrower or any of
its Subsidiaries involving more than One Million Dollars ($1,000,000.00).


 


5.5                               No
Material Deviation in Financial Statements. All consolidated financial
statements for Borrower and any of its Subsidiaries delivered to Bank fairly
present in all material respects Borrower’s consolidated financial condition
and Borrower’s consolidated results of operations. There has not been any
material deterioration in Borrower’s consolidated financial condition since the
date of the most recent financial statements submitted to Bank.


 


5.6                               Solvency.
The fair salable value of Borrower’s assets (including goodwill minus
disposition costs) exceeds the fair value of its liabilities; Borrower is not
left with unreasonably small capital after the transactions in this Agreement;
and Borrower is able to pay its debts (including trade debts) as they mature.


 


5.7                               Regulatory
Compliance. Borrower is not an “investment company” or a company “controlled”
by an “investment company” under the Investment Company Act. Borrower is not
engaged as one of its important activities in extending credit for margin stock
(under Regulations T and U of the Federal Reserve Board of Governors). Borrower
has complied in all material respects with the Federal Fair Labor Standards Act.
Borrower has not violated any laws, ordinances or rules, the violation of which
could reasonably be expected to have a material adverse effect on its business.
None of Borrower’s or any of its Subsidiaries’ properties or assets has been
used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by
previous Persons, in disposing, producing, storing, treating, or transporting
any hazardous substance other than legally. Borrower and each of its
Subsidiaries have obtained all consents, approvals and authorizations of, made
all declarations or filings with, and given all notices to, all government
authorities that are necessary to continue its business as currently
conducted,  except for such consents,
approvals, authorizations, declarations and filings the failure to obtain or
make would not reasonably be expected to have a material adverse effect on
Borrower’s business or operations.


 


5.8                               Subsidiaries;
Investments. Borrower does not own any stock, partnership interest or other
equity securities except for Permitted Investments.


 


5.9                               Tax
Returns and Payments; Pension Contributions. Borrower has timely filed all
required tax returns and reports, and Borrower and its Subsidiaries have timely
paid all foreign, federal, state and local taxes, assessments, deposits and
contributions owed by Borrower. Borrower may defer payment of any contested
taxes, provided that Borrower (a) in good faith contests its obligation to
pay the taxes by appropriate proceedings promptly and diligently instituted and
conducted, (b) notifies Bank in writing of the commencement of, and any
material development in, the proceedings, (c) posts bonds or takes any
other steps required to prevent the governmental authority levying such
contested taxes from obtaining a Lien upon any of the Collateral that is other
than a “Permitted Lien”. Borrower is unaware of any claims or adjustments
proposed for any of Borrower’s prior tax years which could result in additional
taxes becoming due and payable by Borrower in the aggregate in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00). Borrower has paid all amounts necessary
to fund all present pension, profit sharing and deferred compensation plans in
accordance with their terms, and Borrower has not withdrawn from participation
in, and has not permitted partial or complete termination of, or permitted the
occurrence of any other event with respect to, any such plan which could
reasonably be expected to result in any liability of Borrower, including any
liability to the Pension Benefit Guaranty Corporation or its successors or any
other governmental agency.


 


5.10                        Use of
Proceeds. Borrower shall use the proceeds of the Credit Extensions solely
as working capital and to fund its general business requirements, and not for
personal, family, household or agricultural purposes.


 


5.11                        Full
Disclosure. No written representation, warranty or other statement of
Borrower in any certificate or written statement given to Bank, as of the date
such representations, warranties, or other statements were made, taken together
with all such written certificates and written statements given to Bank,
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained in the 


 


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certificates or statements not misleading (it being
recognized by Bank that the projections and forecasts provided by Borrower in
good faith and based upon reasonable assumptions are not viewed as facts and
that actual results during the period or periods covered by such projections
and forecasts may differ from the projected or forecasted results).


 


6                                         AFFIRMATIVE
COVENANTS


 


Borrower shall do all of
the following:


 


6.1                               Government
Compliance. Maintain its and all its Subsidiaries’ legal existence and good
standing in their respective jurisdictions of formation and maintain
qualification in each jurisdiction in which the failure to so maintain
existence of a Subsidiary or to so qualify would reasonably be expected to have
a material adverse effect on Borrower’s business or operations. Borrower shall
comply, and have each Subsidiary comply, with all laws, ordinances and
regulations to which it is subject, the noncompliance with which could have a
material adverse effect on Borrower’s business.


 


6.2                               Financial
Statements, Reports, Certificates.


 


(a)                  Deliver
to Bank:  (i) as soon as available,
but no later than forty-five (45) days after the last day of each quarter, a
company prepared consolidated balance sheet and income statement covering
Caliper’s consolidated (including each Borrower and any other Subsidiary of
Caliper) operations during the period certified by a Responsible Officer and in
a form acceptable to Bank; (ii) as soon as available, but no later than
one hundred twenty (120) days after the last day of Caliper’s fiscal year,
Caliper’s audited consolidated (including each Borrower and any other
Subsidiary of Caliper) financial statements prepared under GAAP, consistently
applied, together with an unqualified opinion on the financial statements from
an independent certified public accounting firm acceptable to Bank in its
reasonable discretion; (iii) within five (5) days of delivery, copies
of all statements, reports and notices made available to Borrower’s security
holders or to any holders of Subordinated Debt (iv) within five (5) days
of filing, all reports on Form 10-K, 10-Q and 8-K filed with the
Securities and Exchange Commission or a link thereto on Caliper’s or another
website on the Internet; (v) a prompt report of any legal actions pending
or threatened against Borrower or any of its Subsidiaries that could result in
damages or costs to Borrower or any of its Subsidiaries of One Million Dollars
($1,000,000.00) or more; (vi) annually, Caliper’s consolidated (including
each Borrower and any other Subsidiary of Caliper) annual operating budget,
substantially as presented to the Board; (vii) as soon as available, but
no later than fifteen (15) days after the last day of each month, a monthly
cash report; and (viii) other financial information reasonably requested
by Bank.


 


(b)                 Within
thirty (30) days after the last day of each month in which the Borrower’s
Unrestricted Cash is less than Twenty-Five Million Dollars ($25,000,000.00),
and Advances are outstanding or an Advance request has been made, deliver to
Bank a duly completed Borrowing Base Certificate signed by a Responsible
Officer, with aged listings of accounts receivable (by invoice date).


 


(c)                  Within
forty-five (45) days after the last day of each quarter, deliver to Bank with
the quarterly financial statements, a duly completed Compliance Certificate
signed by a Responsible Officer setting forth calculations showing compliance
with the financial covenants set forth in this Agreement.


 


(d)                 Allow
Bank to audit Borrower’s Collateral at Borrower’s expense. Such audits shall be
conducted no more often than once every twelve (12) months unless a Default or
an Event of Default has occurred and is continuing.


 


6.3                               Inventory;
Returns. Keep all Inventory in good and marketable condition, free from
material defects. Returns and allowances between Borrower and its Account
Debtors shall follow Borrower’s customary practices. Borrower must promptly
notify Bank of all returns, recoveries, disputes and claims that involve more
than One Million Dollars ($1,000,000).


 


6.4                               Taxes;
Pensions. Make, and cause each of its Subsidiaries to make, timely payment
of all foreign, federal, state, and local taxes or assessments (other than
taxes and assessments which Borrower is contesting pursuant to the terms of Section 5.9
hereof) and shall deliver to Bank, on demand, appropriate certificates
attesting to such payments, and pay all amounts necessary to fund all present
pension, profit sharing and deferred compensation plans in accordance with
their terms.


 


8

















 


6.5                               Insurance.
Keep its business and the Collateral insured for risks and in amounts standard
for companies in Borrower’s industry and location and as Bank may reasonably
request. Insurance policies shall be in a form, with companies having a minimum
AM Best rating of A-, and in amounts that are commercially reasonable. All
property policies shall have a lender’s loss payable endorsement showing Bank
as lender loss payee, and all liability policies shall show, or have
endorsements showing, Bank as an additional insured. All policies (or the loss
payable and additional insured endorsements) shall provide that the insurer
must give Bank at least thirty (30) days notice before canceling its policy. At
Bank’s request, Borrower shall deliver certified copies of policies and
evidence of all premium payments. Proceeds payable under any policy shall, at
Bank’s option, be payable to Bank on account of the Obligations. Notwithstanding
the foregoing, (a) so long as no Event of Default has occurred and is
continuing, Borrower shall have the option of applying the proceeds of any
casualty policy up to $250,000, in the aggregate, toward the replacement or
repair of destroyed or damaged property; provided that any such replaced or
repaired property (i) shall be of equal or like value as the replaced or
repaired Collateral and (ii) shall be deemed Collateral in which Bank has
been granted a first priority security interest, and (b) after the
occurrence and during the continuance of an Event of Default, all proceeds
payable under such casualty policy shall, at the option of Bank, be payable to
Bank on account of the Obligations. If Borrower fails to obtain insurance as
required under this Section 6.5 or to pay any amount or furnish any
required proof of payment to third persons and Bank, Bank may make all or part
of such payment or obtain such insurance policies required in this Section 6.5,
and take any action under the policies Bank deems prudent.


 


6.6                               Operating
Accounts.


 


(a)                  Maintain
its and its Subsidiaries’ depository, operating and securities accounts with
Bank and Bank’s affiliates, with the exception of up to thirty percent (30.0%)
of all of Borrower’s accounts required to be maintained in the ordinary course
of business outside of the U.S. Any Guarantor shall maintain all depository,
operating and securities accounts with Bank, or SVB Securities.


 


(b)                 Provide
Bank five (5) days prior written notice before establishing any Collateral
Account at or with any bank or financial institution other than Bank or its
Affiliates. In addition, for each Collateral Account that Borrower at any time
maintains, Borrower shall cause the applicable bank or financial institution
(other than Bank) at or with which any Collateral Account is maintained to
execute and deliver a Control Agreement or other appropriate instrument with
respect to such Collateral Account to perfect Bank’s Lien in such Collateral
Account in accordance with the terms hereunder. The provisions of the previous
sentence shall not apply to deposit accounts exclusively used for payroll,
payroll taxes and other employee wage and benefit payments to or for the
benefit of Borrower’s employees and identified to Bank by Borrower as such.


 


6.7                               Financial
Covenants.


 


Borrower shall
maintain at all times, to be tested as of the last day of each quarter:


 


(a)                                  Adjusted
Quick Ratio. A ratio of Quick Assets to Quick Liabilities of at least: (i) 0.95  to 1.0 for the quarters ending March 31,
2008, June 30, 2008 and September 30, 2008; and (ii) 1.0 to 1.0
for the quarters ending December 31, 2008 and March 31, 2009.


 


(b)                                 Minimum EBITDA-Cap Ex. Borrower’s EBITDA minus its capital
expenditures, (“EBITDA-Cap Ex”) for the two (2) quarter period ending with
each quarter, shall be in an amount equal to: (i) losses not greater than (A) Seven
Million Dollars ($7,000,000.00) for the quarter ending March 31, 2008; (B) Ten
Million Dollars ($10,000,000.00) for the quarter ending June 30, 2008; and
(C) Three Million Dollars ($3,000,000.00) for the quarter ending September 30,
2008; (ii) Two Million Dollars ($2,000,000.00) for the quarter ending December 31,
2008; and (iii) losses not greater than Two Million Five Hundred Thousand
Dollars ($2,500,000.00) for the quarter ending March 31, 2009.


 


6.8                               Litigation
Cooperation. From the date hereof and continuing through the termination of
this Agreement, make available to Bank, without expense to Bank, Borrower and
its officers, employees and agents and Borrower’s books and records, to the
extent that Bank may deem them reasonably necessary to prosecute or defend any
third-party suit or proceeding instituted by or against Bank with respect to
any Collateral or relating to Borrower.


 


9

















 


6.9                               Further
Assurances. Borrower shall execute any further instruments and take further
action as Bank reasonably requests to perfect or continue Bank’s Lien in the
Collateral or to effect the purposes of this Agreement.


 


7                                         NEGATIVE
COVENANTS


 


Borrower shall not do any
of the following without Bank’s prior written consent, which shall not be
unreasonably withheld or delayed:


 


7.1                               Dispositions.
Convey, sell, lease, transfer or otherwise dispose of (collectively, “Transfer”), or permit any of its
Subsidiaries to Transfer, all or any part of its business or property, except
for Transfers (a) of Inventory in the ordinary course of business; (b) of
worn-out or obsolete Equipment; (c) Equipment and Intellectual Property no
longer necessary or useful in the conduct of Borrower’s business, up to a
maximum aggregate amount of One Million Dollars ($1,000,000.00) per annum; (d) in
connection with Permitted Liens and Permitted Investments; (e) of licenses
for the use of the property of Borrower or its Subsidiaries in the ordinary
course of business; and (f) cross-licenses entered into in the settlement
of litigation or threatened or potential litigation and consistent with
Borrower’s past practices.


 


7.2                               Changes
in Business, Management, Ownership, or Business Locations. (a) Engage
in or permit any of its Subsidiaries to engage in any business other than the
businesses currently engaged in by Borrower and such Subsidiary, as applicable,
or reasonably related thereto; (b) liquidate or dissolve; or (c) enter
into any transaction or series of related transactions in which the
stockholders of Borrower immediately prior to the first such transaction own
less than 51% of the voting stock of Borrower immediately after giving effect
to such transaction or related series of such transactions (other than by the
sale of Borrower’s equity securities in a public offering or to venture capital
investors so long as Borrower identifies to Bank the venture capital investors
prior to the closing of the transaction). Borrower shall not, without at least
ten (10) days prior written notice to Bank: (1) add any new offices
or business locations at which any material amount of Inventory or Equipment
will be located, (2) change its jurisdiction of organization, (3) change
its organizational structure or type, (4) change its legal name, or (5) change
any organizational number (if any) assigned by its jurisdiction of organization.


 


7.3                               Mergers
or Acquisitions. Without Bank’s prior written consent, which shall not be
unreasonably withheld, merge or consolidate, or permit any of its Subsidiaries
to merge or consolidate, with any other Person, or acquire, or permit any of its
Subsidiaries to acquire, all or substantially all of the capital stock or
property of another Person, except (i) where (A) the aggregate
purchase price or other consideration for such transactions does not exceed
$5,000,000.00, in the case of a cash transaction or $15,000,000.00 in the case
of a stock transaction, (B) no Event of Default has occurred and is
continuing or would result from the consummation of such transaction during the
term of this Agreement, and (C) Borrower is the surviving entity after
such transaction or is the parent company of the surviving entity after such
transaction, and (ii) a Subsidiary may merge or consolidate into another
Subsidiary or into Borrower.


 


7.4                               Indebtedness.
Create, incur, assume, or be liable for any Indebtedness, or permit any
Subsidiary to do so, other than Permitted Indebtedness.


 


7.5                               Encumbrance.
Create, incur, or allow any Lien on any of its property, or assign or convey
any right to receive income, including the sale of any Accounts, or permit any
of its Subsidiaries to do so, except for Permitted Liens, or permit any
Collateral not to be subject to the first priority security interest granted
herein, or enter into any agreement, document, instrument or other arrangement
(except with or in favor of Bank) with any Person which directly or indirectly
prohibits or has the effect of prohibiting Borrower from assigning, mortgaging,
pledging, granting a security interest in or upon, or encumbering any of
Borrower’s intellectual property, except as is otherwise permitted in Section 7.1
hereof and the definition of “Permitted Lien” herein.


 


7.6                               Maintenance
of Collateral Accounts. Maintain any Collateral Account except pursuant to
the terms of Section 6.6.(b) hereof.


 


7.7                               Distributions; Investments. (a) Directly
or indirectly make any Investment other than Permitted Investments, or permit
any of its Subsidiaries to do so; or (b) pay any dividends or make any
distribution or payment or redeem, retire or purchase any capital stock, other
than any Investments or redemptions, retirements or purchases of capital stock
that in the aggregate exceed One Million Dollars ($1,000,000.00) during any
period of twelve (12) consecutive months.


 


10
















 


7.8                               Transactions
with Affiliates.  Directly or
indirectly enter into or permit to exist any material transaction with any
Affiliate of Borrower, except for transactions that are in the ordinary course
of Borrower’s business, upon fair and reasonable terms that are no less
favorable to Borrower than would be obtained in an arm’s length transaction
with a non-affiliated Person.


 


7.9                               Subordinated
Debt.  (a) Make or permit any
payment on any Subordinated Debt, except under the terms of the subordination,
intercreditor, or other similar agreement to which such Subordinated Debt is
subject, or (b) amend any provision in any document relating to the
Subordinated Debt which would increase the amount thereof or adversely affect
the subordination thereof to Obligations owed to Bank.


 


7.10                        Compliance.  Become an “investment company” or a company
controlled by an “investment company”, under the Investment Company Act of 1940
or undertake as one of its important activities extending credit to purchase or
carry margin stock (as defined in Regulation U of the Board of Governors of the
Federal Reserve System), or use the proceeds of any Credit Extension for that
purpose; fail to meet the minimum funding requirements of ERISA, permit a
Reportable Event or Prohibited Transaction, as defined in ERISA, to occur; fail
to comply with the Federal Fair Labor Standards Act or violate any other law or
regulation, if the violation could reasonably be expected to have a material
adverse effect on Borrower’s business, or permit any of its Subsidiaries to do
so; withdraw or permit any Subsidiary to withdraw from participation in, permit
partial or complete termination of, or permit the occurrence of any other event
with respect to, any present pension, profit sharing and deferred compensation
plan which could reasonably be expected to result in any liability of Borrower,
including any liability to the Pension Benefit Guaranty Corporation or its
successors or any other governmental agency.


 


8                                         EVENTS
OF DEFAULT


 


Any one of the following shall constitute an event of
default (an “Event of Default”)
under this Agreement:


 


8.1                               Payment
Default.  Borrower fails to (a) make
any payment of principal or interest on any Credit Extension on its due date,
or (b) pay any other Obligations within three (3) Business Days after
such Obligations are due and payable (which three day grace period will not
apply to payments due on the Maturity Date). 
During the cure period, the failure to cure the payment default is not
an Event of Default (but no Credit Extension will be made during the cure
period);


 


8.2                               Covenant
Default.


 


(a) Borrower fails
or neglects to perform any obligation in Sections 6.2, 6.6, 6.7 or violates any
covenant in Section 7; or


 


(b) Borrower fails or neglects to perform, keep,
or observe any other term, provision, condition, covenant or agreement
contained in this Agreement, any Loan Documents, and as to any default (other
than those specified in this Section 8) under such other term, provision,
condition, covenant or agreement that can be cured, has failed to cure the
default within ten (10) days after the occurrence thereof; provided,
however, that if the default cannot by its nature be cured within the ten (10) day
period or cannot after diligent attempts by Borrower be cured within such ten (10) day
period, and such default is likely to be cured within a reasonable time, then
Borrower shall have an additional period (which shall not in any case exceed
thirty (30) days) to attempt to cure such default, and within such reasonable
time period the failure to cure the default shall not be deemed an Event of
Default (but no Credit Extensions shall be made during such cure period).  Grace periods provided under this section
shall not apply, among other things, to financial covenants or any other covenants
set forth in subsection (a) above;


 


8.3                               Material
Adverse Change.  A Material Adverse
Change occurs;


 


8.4                               Attachment.  (a) Any material portion of Borrower’s
assets is attached, seized, levied on, or comes into possession of a trustee or
receiver and the attachment, seizure or levy is not removed in ten (10) days;
(b) the service of process upon Bank ( or Bank’s Affiliate) seeking to
attach, by trustee or similar process, any funds of, or of any entity under
control of Borrower (including a Subsidiary) on deposit with the Bank; (c) Borrower
is enjoined, restrained, or prevented by court order from conducting a material
part of its business; (d) a judgment or other claim in excess of One
Million Dollars ($1,000,000.00) becomes a Lien on any of Borrower’s assets; or (e) a
notice of lien, levy, or assessment is filed against any of Borrower’s assets
by any government agency and not paid 


 


11

















 


within ten (10) days after Borrower receives notice.  These are not Events of Default if stayed or
if a bond is posted pending contest by Borrower (but no Credit Extensions shall
be made during the cure period);


 


8.5                               Insolvency
(a) Borrower is unable to pay its debts (including trade debts) as they
become due or otherwise becomes insolvent; (b) Borrower begins an
Insolvency Proceeding; or (c) an Insolvency Proceeding is begun against
Borrower and not dismissed or stayed within forty-five (45) days (but no Credit
Extensions shall be made while of any of the conditions described in clause (a) exist
and/or until any Insolvency Proceeding is dismissed);


 


8.6                               Other
Agreements.  There is a default in
any agreement to which Borrower or any Guarantor is a party with a third party
or parties resulting in a right by such third party or parties, whether or not
exercised, which results in the acceleration of the maturity of any
Indebtedness in an amount in excess of One Million Dollars ($1,000,000.00) or
that could have a material adverse effect on Borrower’s business;


 


8.7                               Judgments.
 A judgment or judgments for the payment
of money in an amount, individually or in the aggregate, of at least One
Million Dollars ($1,000,000.00) (not covered by independent third-party
insurance) shall be rendered against Borrower and shall remain unsatisfied and
unstayed for a period of thirty (30) days after the entry thereof (provided
that no Credit Extensions will be made prior to the satisfaction or stay of
such judgment);


 


8.8                               Misrepresentations.  Borrower or any Person acting for Borrower
makes any representation, warranty, or other statement now or later in this
Agreement, any Loan Document or in any writing delivered to Bank or to induce
Bank to enter this Agreement or any Loan Document, and such representation,
warranty, or other statement is incorrect in any material respect when made;


 


8.9                               Subordinated
Debt.  A default or breach occurs
under any agreement between Borrower and any creditor of Borrower that signed a
subordination, intercreditor, or other similar agreement with Bank, or any
creditor that has signed such an agreement with Bank breaches any terms of such
agreement.


 


9                                         BANK’S
RIGHTS AND REMEDIES


 


9.1                               Rights
and Remedies.  While an Event of
Default occurs and continues Bank may, without notice or demand, do any or all
of the following:


 


(a)                  declare
all Obligations immediately due and payable (but if an Event of Default
described in Section 8.5 occurs all Obligations are immediately due and
payable without any action by Bank);


 


(b)                 stop
advancing money or extending credit for Borrower’s benefit under this Agreement
or under any other agreement between Borrower and Bank;


 


(c)                  demand
that Borrower (i) deposits cash with Bank in an amount equal to the
aggregate amount of any Letters of Credit remaining undrawn, as collateral
security for the repayment of any future drawings under such Letters of Credit,
and Borrower shall forthwith deposit and pay such amounts, and (ii) pay in
advance all Letter of Credit fees scheduled to be paid or payable over the
remaining term of any Letters of Credit;


 


(d)                 settle
or adjust disputes and claims directly with Account Debtors for amounts on
terms and in any order that Bank considers advisable, notify any Person owing
Borrower money of Bank’s security interest in such funds, and verify the amount
of such account;


 


(e)                  make
any payments and do any acts it considers necessary or reasonable to protect
the Collateral and/or its security interest in the Collateral.  Borrower shall assemble the Collateral if
Bank requests and make it available as Bank designates.  Bank may enter premises where the Collateral
is located, take and maintain possession of any part of the Collateral, and
pay, purchase, contest, or compromise any Lien which appears to be prior or
superior to its security interest and pay all expenses incurred. Borrower
grants Bank a license to enter and occupy any of its premises, without charge,
to exercise any of Bank’s rights or remedies;


 


(f)                    apply
to the Obligations any (i) balances and deposits of Borrower it holds, or (ii) any
amount held by Bank owing to or for the credit or the account of Borrower;


 


12

















 


(g)                 ship,
reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise
for sale, and sell the Collateral.  Bank
is hereby granted a non-exclusive, royalty-free license or other right to use,
without charge, Borrower’s labels, patents, copyrights, mask works, rights of
use of any name, trade secrets, trade names, trademarks, service marks, and
advertising matter, or any similar property as it pertains to the Collateral,
in completing production of, advertising for sale, and selling any Collateral
and, in connection with Bank’s exercise of its rights under this Section,
Borrower’s rights under all licenses and all franchise agreements inure to Bank’s
benefit;


 


(h)                 place
a “hold” on any account maintained with Bank and/or deliver a notice of
exclusive control, any entitlement order, or other directions or instructions
pursuant to any Control Agreement or similar agreements providing control of
any Collateral;


 


(i)                     demand
and receive possession of Borrower’s Books; and


 


(j)                     exercise
all rights and remedies available to Bank under the Loan Documents or at law or
equity, including all remedies provided under the Code (including disposal of
the Collateral pursuant to the terms thereof).


 


9.2                               Power
of Attorney.  Borrower hereby
irrevocably appoints Bank as its lawful attorney-in-fact, exercisable upon the
occurrence and during the continuance of an Event of Default, to:  (a) endorse Borrower’s name on any
checks or other forms of payment or security; (b) sign Borrower’s name on
any invoice or bill of lading for any Account or drafts against Account
Debtors; (c) settle and adjust disputes and claims about the Accounts
directly with Account Debtors, for amounts and on terms Bank determines
reasonable; (d) make, settle, and adjust all claims under Borrower’s
insurance policies; (e) pay, contest or settle any Lien, charge,
encumbrance, security interest, and adverse claim in or to the Collateral, or
any judgment based thereon, or otherwise take any action to terminate or
discharge the same; and (f) transfer the Collateral into the name of Bank
or a third party as the Code permits. 
Borrower hereby appoints Bank as its lawful attorney-in-fact to sign
Borrower’s name on any documents necessary to perfect or continue the
perfection of Bank’s security interest in the Collateral regardless of whether
an Event of Default has occurred until all Obligations have been satisfied in
full and Bank is under no further obligation to make Credit Extensions
hereunder.  Bank’s foregoing appointment
as Borrower’s attorney in fact, and all of Bank’s rights and powers, coupled
with an interest, are irrevocable until all Obligations have been fully repaid
and performed and Bank’s obligation to provide Credit Extensions terminates.


 


9.3                               Accounts
Verification; Collection.  In the
event that an Event of Default has occurred and is continuing, Bank may notify
any Person owing Borrower money of Bank’s security interest in such funds and
verify the amount of such account.  After
the occurrence of an Event of Default, any amounts received by Borrower shall
be held in trust by Borrower for Bank, and, if requested by Bank, Borrower
shall immediately deliver such receipts to Bank in the form received from the
Account Debtor, with proper endorsements for deposit.


 


9.4                               Protective
Payments.  If Borrower fails to
obtain the insurance called for by Section 6.5 or fails to pay any premium
thereon or fails to pay any other amount which Borrower is obligated to pay
under this Agreement or any other Loan Document, Bank may obtain such insurance
or make such payment, and all amounts so paid by Bank are Bank Expenses and
immediately due and payable, bearing interest at the then highest applicable
rate, and secured by the Collateral. 
Bank will make reasonable efforts to provide Borrower with notice of
Bank obtaining such insurance at the time it is obtained or within a reasonable
time thereafter.  No payments by Bank are
deemed an agreement to make similar payments in the future or Bank’s waiver of
any Event of Default.


 


9.5                               Application
of Payments and Proceeds.  Unless an
Event of Default has occurred and is continuing, Bank shall apply any funds in
its possession, whether from Borrower account balances, payments, or proceeds
realized as the result of any collection of Accounts or other disposition of
the Collateral, first, to Bank Expenses, including without limitation, the
reasonable costs, expenses, liabilities, obligations and attorneys’ fees
incurred by Bank in the exercise of its rights under this Agreement; second, to
the interest due upon any of the Obligations; and third, to the principal of
the Obligations and any applicable fees and other charges, in such order as
Bank shall determine in its sole discretion. 
Any surplus shall be paid to Borrower or other Persons legally entitled
thereto; Borrower shall remain liable to Bank for any deficiency.  If an Event of Default has occurred and is
continuing, Bank may apply any funds in its possession, whether from Borrower
account balances, payments, proceeds realized as the result of any collection
of Accounts or other disposition of the Collateral, or otherwise, to the
Obligations in such order as Bank shall determine in its sole discretion.  Any surplus shall be paid to Borrower or
other Persons legally entitled thereto; Borrower shall remain liable to Bank
for any deficiency.  If Bank, in its 


 


13

















 


good faith business judgment, directly or indirectly enters into a
deferred payment or other credit transaction with any purchaser at any sale of
Collateral, Bank shall have the option, exercisable at any time, of either
reducing the Obligations by the principal amount of the purchase price or
deferring the reduction of the Obligations until the actual receipt by Bank of
cash therefor.


 


9.6                               Bank’s
Liability for Collateral.  So long as
Bank complies with reasonable banking practices regarding the safekeeping of
the Collateral in the possession or under the control of Bank, Bank shall not
be liable or responsible for: (a) the safekeeping of the Collateral; (b) any
loss or damage to the Collateral; (c) any diminution in the value of the
Collateral; or (d) any act or default of any carrier, warehouseman,
bailee, or other Person.  Borrower bears
all risk of loss, damage or destruction of the Collateral.


 


9.7                               No
Waiver; Remedies Cumulative.  Bank’s
failure, at any time or times, to require strict performance by Borrower of any
provision of this Agreement or any other Loan Document shall not waive, affect,
or diminish any right of Bank thereafter to demand strict performance and
compliance herewith or therewith.  No
waiver hereunder shall be effective unless signed by Bank and then is only
effective for the specific instance and purpose for which it is given.  Bank’s rights and remedies under this
Agreement and the other Loan Documents are cumulative.  Bank has all rights and remedies provided
under the Code, by law, or in equity. 
Bank’s exercise of one right or remedy is not an election, and Bank’s
waiver of any Event of Default is not a continuing waiver.  Bank’s delay in exercising any remedy is not
a waiver, election, or acquiescence.


 


9.8                               Demand
Waiver.  Borrower waives demand,
notice of default or dishonor, notice of payment and nonpayment, notice of any
default, nonpayment at maturity, release, compromise, settlement, extension, or
renewal of accounts, documents, instruments, chattel paper, and guarantees held
by Bank on which Borrower is liable.


 


10                                  NOTICES


 


All notices, consents, requests, approvals, demands,
or other communication (collectively, “Communication”)
by any party to this Agreement or any other Loan Document must be in writing
and shall be deemed to have been validly served, given, or delivered: (a) upon
the earlier of actual receipt and three (3) Business Days after deposit in
the U.S. mail, first class, registered or certified mail return receipt
requested, with proper postage prepaid; (b) upon transmission, when sent
by electronic mail or facsimile transmission; (c) one (1) Business
Day after deposit with a reputable overnight courier with all charges prepaid;
or (d) when delivered, if hand-delivered by messenger, all of which shall
be addressed to the party to be notified and sent to the address, facsimile
number, or email address indicated below. 
Bank or Borrower may change its address or facsimile number by giving
the other party written notice thereof in accordance with the terms of this Section 10.


 


	
   

  	
  If to Borrower:

  	
  Caliper Life
  Sciences, Inc.

  	
   

  
	
   

  	
   

  	
  68 Elm Street

  	
   

  
	
   

  	
   

  	
  Hopkinton,
  Massachusetts 01748

  	
   

  
	
   

  	
   

  	
  Attn: Thomas Higgins,
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
  Fax: (508) 497-2726

  	
   

  
	
   

  	
   

  	
  Email:  Thomas.Higgins@caliperls.com

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
  Caliper Life Sciences, Inc.

  	
   

  
	
   

  	
   

  	
  650 Fairchild Drive

  	
   

  
	
   

  	
   

  	
  Mountain View, CA 94043-2234

  	
   

  
	
   

  	
   

  	
  Attn: Steve Creager, General Counsel

  	
   

  
	
   

  	
   

  	
  Fax: (650) 623-0505

  	
   

  
	
   

  	
   

  	
  Email: Stephen.Creager@caliperls.com

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  If to Bank:

  	
  Silicon Valley Bank

  	
   

  
	
   

  	
   

  	
  One Newton Executive
  Park, Suite 200

  	
   

  
	
   

  	
   

  	
  2221 Washington Street

  	
   

  
	
   

  	
   

  	
  Newton, Massachusetts
  02462

  	
   

  
	
   

  	
   

  	
  Attn:  Mr.  Tom Davies

  	
   

  
	
   

  	
   

  	
  Fax:  (617) 939-5973

  	
   

  
	
   

  	
   

  	
  Email: tdavies@svb.com

  	
   

  



 


14

















 


	
   

  	
  with a copy to:

  	
  Riemer & Braunstein LLP

  	
   

  
	
   

  	
   

  	
  Three Center Plaza

  	
   

  
	
   

  	
   

  	
  Boston, Massachusetts 02108

  	
   

  
	
   

  	
   

  	
  Attn: David A. Ephraim, Esquire

  	
   

  
	
   

  	
   

  	
  Fax: (617) 880-3456

  	
   

  
	
   

  	
   

  	
  Email: DEphraim@riemerlaw.com

  	
   

  



 


11                                  CHOICE
OF LAW, VENUE AND JURY TRIAL WAIVER AND JUDICIAL REFERENCE


 


Massachusetts law governs the Loan Documents (other
than the Securities Account Control Agreements dated as of the Effective Date
executed by, among others, Bank and each Borrower) without regard to principles
of conflicts of law.  Borrower and Bank
each submit to the exclusive jurisdiction of the State and Federal courts in Massachusetts;
provided, however, that if for any reason Bank cannot avail itself of such
courts in the Commonwealth of Massachusetts, Borrower accepts jurisdiction of
the courts and venue in Santa Clara County, California.  NOTWITHSTANDING THE FOREGOING, BANK SHALL
HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH BANK DEEMS NECESSARY OR
APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE BANK’S
RIGHTS AGAINST BORROWER OR ITS PROPERTY.


 


TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS
OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND
ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO
ENTER INTO THIS AGREEMENT.  EACH PARTY
HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.


 


12                                  GENERAL
PROVISIONS


 


12.1                        Successors
and Assigns.  This Agreement binds
and is for the benefit of the successors and permitted assigns of each
party.  Borrower may not assign this
Agreement or any rights or obligations under it without Bank’s prior written
consent (which may be granted or withheld in Bank’s discretion).  Bank has the right, without the consent of or
notice to Borrower, to sell, transfer, negotiate, or grant participation in all
or any part of, or any interest in, Bank’s obligations, rights, and benefits
under this Agreement and the other Loan Documents.


 


12.2                        Indemnification.
 Borrower agrees to indemnify, defend and
hold Bank and its directors, officers, employees, agents, attorneys, or any
other Person affiliated with or representing Bank harmless against:  (a) all obligations, demands, claims,
and liabilities (collectively, “Claims”) asserted by any other party in
connection with the transactions contemplated by the Loan Documents; and (b) all
losses or Bank Expenses incurred, or paid by Bank from, following, or arising
from transactions between Bank and Borrower (including reasonable attorneys’
fees and expenses), except for Claims and/or losses directly caused by Bank’s
gross negligence or willful misconduct.


 


12.3                        Limitation
of Actions.  Any claim or cause of action by
Borrower against Bank, its directors, officers, employees, agents, accountants,
attorneys, or any other Person affiliated with or representing Bank based upon,
arising from, or relating to this Loan Agreement or any other Loan Document, or
any other transaction contemplated hereby or thereby or relating hereto or
thereto, or any other matter, cause or thing whatsoever, occurred, done,
omitted or suffered to be done by Bank, its directors, officers, employees,
agents, accountants or attorneys, shall be barred unless asserted by Borrower
by the commencement of an action or proceeding in a court of competent
jurisdiction by (a) the filing of a complaint within one year from the
earlier of (i) the date any of Borrower’s officer or directors had
knowledge of the first act, the occurrence or omission upon which such claim or
cause of action, or any part thereof, is based, or (ii) the date this
Agreement is terminated, and (b) the service of a summons and complaint on
an officer of Bank, or on any other person authorized to accept service on
behalf of Bank, within thirty (30) days thereafter.  Borrower agrees that such one-year period is
a reasonable and sufficient time for Borrower to investigate and act upon any
such claim or cause of action.  The
one-year period provided herein shall not be waived, tolled, or extended except
by the written consent of Bank in its sole discretion.  This provision shall survive any termination
of this Loan Agreement or any other Loan Document.


 


15

















 


12.4                        Time of
Essence.  Time is of the essence for
the performance of all Obligations in this Agreement.


 


12.5                        Severability
of Provisions.  Each provision of
this Agreement is severable from every other provision in determining the
enforceability of any provision.


 


12.6                        Amendments
in Writing; Integration.  All
amendments to this Agreement must be in writing signed by both Bank and
Borrower.  This Agreement and the Loan
Documents represent the entire agreement about this subject matter and
supersede prior negotiations or agreements. 
All prior agreements, understandings, representations, warranties, and
negotiations between the parties about the subject matter of this Agreement and
the Loan Documents merge into this Agreement and the Loan Documents.


 


12.7                        Counterparts.  This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, are an original, and all taken together,
constitute one Agreement.


 


12.8                        Survival.  All covenants, representations and warranties
made in this Agreement continue in full force until this Agreement has
terminated pursuant to its terms and all Obligations (other than inchoate
indemnity obligations and any other obligations which, by their terms, are to
survive the termination of this Agreement) have been satisfied.  The obligation of Borrower in Section 12.2
to indemnify Bank shall survive until the statute of limitations with respect
to such claim or cause of action shall have run.


 


12.9                        Confidentiality.  In handling any confidential information,
Bank shall exercise the same degree of care that it exercises for its own
proprietary information, but disclosure of information may be made: (a) to
Bank’s Subsidiaries or Affiliates; (b) to prospective transferees or
purchasers of any interest in the Credit Extensions (provided, however, Bank
shall use commercially reasonable efforts to obtain such prospective transferee’s
or purchaser’s agreement to the terms of this provision); (c) as required
by law, regulation, subpoena, or other order; (d) to Bank’s regulators or
as otherwise required in connection with Bank’s examination or audit; and (e) as
Bank considers appropriate in exercising remedies under this Agreement.  Confidential information does not include
information that either: (i) is in the public domain or in Bank’s
possession when disclosed to Bank, or becomes part of the public domain after
disclosure to Bank; or (ii) is disclosed to Bank by a third party, if Bank
does not know that the third party is prohibited from disclosing the information.


 


12.10                 Right of Set Off.   Borrower hereby grants to Bank, a lien,
security interest and right of set off as security for all Obligations to Bank,
whether now existing or hereafter arising upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Bank or any entity under the control of Bank
(including a Bank subsidiary) or in transit to any of them.  At any time after the occurrence and during
the continuance of an Event of Default, without demand or notice, Bank may set
off the same or any part thereof and apply the same to any liability or
obligation of Borrower even though unmatured and regardless of the adequacy of
any other collateral securing the Obligations. 
ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES
WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.


 


12.11                 Borrower
Liability.  As detailed in Article 1,
each Borrower has appointed Caliper as Agent for each Borrower for all purposes
hereunder, including with respect to requesting Credit Extensions
hereunder.  Each Borrower hereunder shall
be obligated to repay all Credit Extensions made hereunder, regardless of which
Borrower actually receives said Credit Extension, as if each Borrower hereunder
directly received all Credit Extensions. 
Each Borrower waives any suretyship defenses available to it under the
Code or any other applicable law.  Each
Borrower waives any right to require Bank to: (i) proceed against any
Borrower or any other person; (ii) proceed against or exhaust any
security; or (iii) pursue any other remedy.  Bank may exercise or not exercise any right
or remedy it has against any Borrower or any security it holds (including the
right to foreclose by judicial or non-judicial sale) without affecting any
Borrower’s liability.  Notwithstanding
any other provision of this Agreement or other related document, each Borrower
irrevocably waives all rights that it may have at law or in equity (including,
without limitation, any law subrogating Borrower to the rights of Bank under
this Agreement) to seek contribution, indemnification or any other form of
reimbursement from any other Borrower, or any other Person now or hereafter
primarily or secondarily liable for any of the Obligations, for any payment
made by Borrower with respect to the Obligations in connection with this
Agreement or otherwise and all rights that it might have to benefit from, or to



 


16

















 


participate in, any security for the Obligations as a result of any
payment made by Borrower with respect to the Obligations in connection with
this Agreement or otherwise.  Any
agreement providing for indemnification, reimbursement or any other arrangement
prohibited under this Section shall be null and void.  If any payment is made to a Borrower in
contravention of this Section, such Borrower shall hold such payment in trust
for Bank and such payment shall be promptly delivered to Bank for application
to the Obligations, whether matured or unmatured.


 


12.12                 Amended and
Restated Loan and Security Agreement. 
This Agreement amends and restates in its entirety a certain Loan and
Security Agreement by and among Borrower and Bank dated as of August 9,
2006, as amended.


 


12.13                 Confirmations and
Ratifications by Borrower.  Borrower
hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in the Perfection Certificate, and acknowledges, confirms
and agrees that, except as set forth on Schedule 12.13 attached hereto,
the disclosures and information Borrower provided to Bank in the Perfection
Certificate have not changed as of the date of this Agreement.


 


13                                  DEFINITIONS


 


13.1                        Definitions.  As used in this Agreement, the following
terms have the following meanings:


 


“Account”
is any “account” as defined in the Code with such additions to such term as may
hereafter be made, and includes, without limitation, all accounts receivable
and other sums owing to Borrower.


 


“Account Debtor”
is any “account debtor” as defined in the Code with such additions to such term
as may hereafter be made.


 


“Advance”
or “Advances” means an advance (or
advances) under the Revolving Line.


 


“Affiliate”
of any Person is a Person that owns or controls directly or indirectly the
Person, any Person that controls or is controlled by or is under common control
with the Person, and each of that Person’s senior executive officers,
directors, partners and, for any Person that is a limited liability company,
that Person’s managers and members.


 


“Agent”
is defined in Section 1.2(a).


 


“Agreement”
is defined in the preamble hereof.


 


“Availability Amount”
is (a) if the Borrower’s Unrestricted Cash is greater than or equal to
Twenty-Five Million Dollars ($25,000,000.00) (i) the Revolving Line, minus
(ii) the amount of all outstanding Letters of Credit (including drawn but
unreimbursed Letters of Credit) plus an amount equal to the Letter of Credit
Reserves, and minus (iii) the outstanding principal balance of any
Advances; or (b) if Borrower’s Unrestricted Cash is less than Twenty-Five
Million Dollars ($25,000,000.00) (i) the lesser of (x) the Revolving
Line or (y) the Borrowing Base, minus (ii) the amount of all
outstanding Letters of Credit (including drawn but unreimbursed Letters of
Credit) plus an amount equal to the Letter of Credit Reserves, and minus (iii) the
outstanding principal balance of any Advances.


 


“Bank” is
defined in the preamble hereof.


 


“Bank Expenses”
are all audit fees and expenses, costs, and expenses (including reasonable
attorneys’ fees and expenses) for preparing, negotiating, administering,
defending and enforcing the Loan Documents (including, without limitation,
those incurred in connection with appeals or Insolvency Proceedings) or
otherwise incurred with respect to Borrower.


 


“Board”
is Borrower’s Board of Directors.


 


“Borrower”
is defined in the preamble hereof.


 


“Borrower’s Books”
are all Borrower’s books and records including ledgers, federal and state tax
returns, records regarding Borrower’s assets or liabilities, the Collateral,
business operations or financial condition, and all computer programs or
storage or any equipment containing such information.


 


17

















 


“Borrowing Base”
is (a) eighty percent (80.0%)  of
Eligible Accounts based upon a Borrowing Base Certificate delivered to, and
acceptable to Bank, plus (b) the lesser of ninety percent (90.0%) of
Borrower’s Unrestricted Cash or Ten Million Dollars ($10,000,000.00), as
determined by Bank from Borrower’s most recent Borrowing Base Certificate;
provided, however, that, Bank may decrease the foregoing percentages in its
good faith business judgment, after an audit of Borrower’s Accounts, based on
events, conditions, contingencies, or risks which, as determined by Bank, may
adversely affect Collateral.


 


“Borrowing Base
Certificate” is that certain certificate in the form attached hereto
as Exhibit C.


 


“Borrowing
Resolutions” are, with respect to any Person, those resolutions
adopted by such Person’s Board of Directors and delivered by such Person to
Bank approving the Loan Documents to which such Person is a party and the
transactions contemplated thereby, together with a certificate executed by its
secretary on behalf of such Person certifying that (a) such Person has the
authority to execute, deliver, and perform its obligations under each of the
Loan Documents to which it is a party, (b) that attached as Exhibit A
to such certificate is a true, correct, and complete copy of the resolutions
then in full force and effect authorizing and ratifying the execution,
delivery, and performance by such Person of the Loan Documents to which it is a
party, (c) the name(s) of the Person(s) authorized to execute
the Loan Documents on behalf of such Person, together with a sample of the true
signature(s) of such Person(s), and (d) that Bank may conclusively
rely on such certificate unless and until such Person shall have delivered to
Bank a further certificate canceling or amending such prior certificate.


 


“Business Day”
is any day that is not a Saturday, Sunday or a day on which Bank is closed.


 


“Caliper”
is defined in the preamble hereof.


 


“Cash Equivalents
and Marketable Securities” means (a) marketable direct
obligations issued or unconditionally guaranteed by the United States or any
agency or any State thereof having maturities of not more than one (1) year
from the date of acquisition; (b) commercial paper maturing no more than
one (1) year after its creation and having the highest rating from either
Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc.,
(c) Bank’s certificates of deposit issued maturing no more than one (1) year
after issue, and (d) any marketable securities owned and held by Capiler
in compliance with Caliper’s approved investment guidelines as of the Effective
Date (a copy of which has been delivered to Bank).


 


“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the Commonwealth of Massachusetts; provided, that, to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, Bank’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the Commonwealth of Massachusetts, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes on the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.
 


“Collateral”
is any and all properties, rights and assets of Borrower described on Exhibit A.


 


“Collateral Account”
is any Deposit Account, Securities Account, or Commodity Account.


 


“Commodity Account”
is any “commodity account” as defined in the Code with such additions to such
term as may hereafter be made.


 


“Communication”
is defined in Section 10.


 


“Compliance
Certificate” is that certain certificate in the form attached hereto
as Exhibit D.


 


“Contingent
Obligation” is, for any Person, any direct or indirect liability,
contingent or not, of that Person for (a) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (b) any obligations for undrawn letters of credit for the account
of that Person; and (c) all obligations from any interest rate, currency
or commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest 


 


18

















 


rates, currency exchange
rates or commodity prices; but “Contingent Obligation” does not include
endorsements in the ordinary course of business.  The amount of a Contingent Obligation is the
stated or determined amount of the primary obligation for which the Contingent
Obligation is made or, if not determinable, the maximum reasonably anticipated
liability for it determined by the Person in good faith; but the amount may not
exceed the maximum of the obligations under any guarantee or other support
arrangement.


 


“Control Agreement”
is any control agreement entered into among the depository institution at which
Borrower maintains a Deposit Account or the securities intermediary or
commodity intermediary at which Borrower maintains a Securities Account or a
Commodity account, Borrower, and Bank pursuant to which Bank obtains control
(within the meaning of the Code) over such Deposit Account, Securities Account,
or Commodity Account.


 


“Credit Extension”
is any Advance, Letter of Credit, or any other extension of credit by Bank for
Borrower’s benefit.


 


“Current Liabilities”
are all obligations and liabilities of Borrower to Bank, plus, without duplication,
the aggregate amount of Borrower’s Total Liabilities that mature within one (1) year.


 


“Default”
means any event which with notice or passage of time or both, would constitute
an Event of Default.


 


“Default Rate”
is defined in Section 2.3(b).


 


“Deferred Revenue”
is all amounts received or invoiced in advance of performance under contracts
and not yet recognized as revenue.


 


“Deposit Account”
is any “deposit account” as defined in the Code with such additions to such
term as may hereafter be made.


 


“Designated Deposit
Account” is Borrower’s deposit account, account number
                          ,
maintained with Bank.


 


“Dollars,”  “dollars” and “$” each mean lawful money of the United States.


 


“Domestic Subsidiary”
means a Subsidiary organized under the laws of the United States or any state
or territory thereof or the District of Columbia.


 


“EBITDA”
shall mean (a) Net Income, plus (b) Interest Expense, plus (c) to
the extent deducted in the calculation of Net Income, depreciation expense,
amortization expense, and non-cash stock-based compensation expense, plus (d) income
tax expense, plus, without duplication (f) restructuring charges and
litigations charges not to exceed $5,000,000 in the aggregate (for the quarters
ending March 31, 2008, June 30, 2008 and September 30, 2008).


 


“Effective Date”
is defined in the preamble of this Agreement.


 


“Eligible Accounts”
are Accounts which arise in the ordinary course of Borrower’s business that
meet all Borrower’s representations and warranties in Section 5.3.  Bank reserves the right, at any time and from
time to time after the Effective Date, to adjust any of the criteria set forth
below and to establish new criteria in its good faith business judgment.  Unless Bank agrees otherwise in writing,
Eligible Accounts shall not include:


 


(a)                                  Accounts
for which the Account Debtor has not been invoiced;


 


(b)                                 Accounts
that the Account Debtor has not paid within ninety (90) days of invoice date;


 


(c)                                  Accounts owing from an Account Debtor, fifty percent (50%) or
more of whose Accounts have not been paid within ninety (90) days of invoice
date;


 


(d)                                 Credit
balances over ninety (90) days from invoice date;


 


19

















 


(e)                                  Accounts
owing from an Account Debtor, including Affiliates, whose total obligations to
Borrower exceed twenty-five (25%) of all Accounts, for the amounts that exceed
that percentage, unless Bank approves in writing;


 


(f)                                    Accounts
owing from an Account Debtor which does not have its principal place of
business in the United States but only to the extent any such Accounts are
specifically deemed ineligible in writing by Bank in its sole and absolute
discretion;


 


(g)                                 Accounts
owing from an Account Debtor which is a federal, state or local government
entity or any department, agency, or instrumentality thereof but only to the
extent any such Accounts are specifically deemed ineligible in writing by Bank
in its sole and absolute discretion. Notwithstanding the foregoing, Accounts of
the United States with respect to which Borrower has assigned its payment
rights to Bank and the assignment has been acknowledged under the Federal
Assignment of Claims Act of 1940, as amended, and are otherwise Eligible
Accounts, shall be deemed Eligible Accounts;


 


(h)                                 Accounts
owing from an Account Debtor to the extent that Borrower is indebted or
obligated in any manner to the Account Debtor (as creditor, lessor, supplier or
otherwise - sometimes called “contra” accounts, accounts payable, customer
deposits or credit accounts), with the exception of customary credits,
adjustments and/or discounts given to an Account Debtor by Borrower in the
ordinary course of its business;


 


(i)                                     Accounts
for demonstration or promotional equipment, or in which goods are consigned, or
sold on a “sale guaranteed”, “sale or return”, “sale on approval”, “bill and
hold”, or other terms if Account Debtor’s payment may be conditional;


 


(j)                                     Accounts
for which the Account Debtor is Borrower’s Affiliate, officer, employee, or
agent;


 


(k)                                  Accounts
in which the Account Debtor disputes liability or makes any claim (but only up
to the disputed or claimed amount), or if the Account Debtor is subject to an
Insolvency Proceeding, or becomes insolvent, or goes out of business;


 


(l)                                     Accounts
owing from an Account Debtor with respect to which Borrower has received
deferred revenue (but only to the extent of such deferred revenue);


 


(m)                               Accounts
for which Bank in its good faith business judgment determines collection to be
doubtful; and


 


(n)                                 other
Accounts Bank deems ineligible in the exercise of its good faith business
judgment.


 


“Equipment”
is all “equipment” as defined in the Code with such additions to such term as
may hereafter be made, and includes without limitation all machinery, fixtures,
goods, vehicles (including motor vehicles and trailers), and any interest in
any of the foregoing.


 


“ERISA”
is the Employee Retirement Income Security Act of 1974, and its regulations.


 


“Event of Default”
is defined in Section 8.


 


“Foreign Currency”
means lawful money of a country other than the United States.


 


“Foreign Subsidiary”
means any Subsidiary which is not a Domestic Subsidiary.


 


“Funding Date”
is any date on which a Credit Extension is made to or on account of Borrower
which shall be a Business Day.


 


“GAAP” is
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other Person as
may be approved by a significant segment of the accounting profession, which
are applicable to the circumstances as of the date of determination.


 


20
















 


“General Intangibles”
is all “general intangibles” as defined in the Code in effect on the date
hereof with such additions to such term as may hereafter be made, and includes
without limitation, all copyright rights, copyright applications, copyright
registrations and like protections in each work of authorship and derivative
work, whether published or unpublished, any patents, trademarks, service marks
and, to the extent permitted under applicable law, any applications therefor,
whether registered or not, any trade secret rights, including any rights to
unpatented inventions, payment intangibles, royalties, contract rights,
goodwill, franchise agreements, purchase orders, customer lists, route lists,
telephone numbers, domain names, claims, income and other tax refunds, security
and other deposits, options to purchase or sell real or personal property,
rights in all litigation presently or hereafter pending (whether in contract,
tort or otherwise), insurance policies (including without limitation key man, property
damage, and business interruption insurance), payments of insurance and rights
to payment of any kind.


 


“Indebtedness”
is (a) indebtedness for borrowed money or the deferred price of property
or services, such as reimbursement and other obligations for surety bonds and
letters of credit, (b) obligations evidenced by notes, bonds, debentures
or similar instruments, (c) capital lease obligations, and (d) Contingent
Obligations.


 


“Insolvency
Proceeding” is any proceeding by or against any Person under the
United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.


 


“Intellectual
Property” is (a) any copyright rights, copyright applications,
copyright registrations and like protections in each work of authorship and
derivative work, whether published or unpublished, (b) any patents, patent
applications and like protections, including improvements, divisions,
continuations, renewals, reissues, extensions, and continuations-in-part of the
same, trademarks, service marks and, to the extent permitted under applicable
law, any applications therefor, whether registered or not, and the goodwill of
the business of Borrower connected with and symbolized thereby, (c) any
know-how, operating manuals, trade secret rights, rights to unpatented
inventions, and (d) any claims for damage by way of any past, present, or
future infringement of any of the foregoing.


 


“Interest Expense”
means for any fiscal period, interest expense (whether cash or non-cash)
determined in accordance with GAAP for the relevant period ending on such date,
including, in any event, interest expense with respect to any Credit Extension
and other Indebtedness of Borrower, including, without limitation or
duplication, all commissions, discounts, or related amortization and other fees
and charges with respect to letters of credit and bankers’ acceptance financing
and the net costs associated with interest rate swap, cap, and similar
arrangements, and the interest portion of any deferred payment obligation
(including leases of all types).


 


“Inventory”
is all “inventory” as defined in the Code in effect on the date hereof with
such additions to such term as may hereafter be made, and includes without
limitation all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products, including without
limitation such inventory as is temporarily out of Borrower’s custody or
possession or in transit and including any returned goods and any documents of
title representing any of the above.


 


“Investment”
is any beneficial ownership interest in any Person (including stock, partnership
interest or other securities), and any loan, advance or capital contribution to
any Person.


 


“Letter of Credit”
means a standby letter of credit issued by Bank or another institution based
upon an application, guarantee, indemnity or similar agreement on the part of
Bank as set forth in Section 2.1.2.


 


“Letter of Credit
Application” is defined in Section 2.1.2(a).


 


“Letter of Credit
Reserve” has the meaning set forth in Section 2.1.2(d).


 


“Lien” is
a mortgage, lien, deed of trust, charge, pledge, security interest or other
encumbrance.


 


“Loan Documents”
are, collectively, this Agreement, the Perfection Certificate, any note, or
notes or guaranties executed by Borrower or any Guarantor, and any other
present or future agreement between Borrower any Guarantor and/or for the
benefit of Bank in connection with this Agreement, all as amended, restated, or
otherwise modified.


 


21

















 


“Material Adverse
Change” is (a) a material impairment in the perfection or priority
of Bank’s Lien in the Collateral or in the value of such Collateral; (b) a
material adverse change in the business, operations, or condition (financial or
otherwise) of Borrower; (c) a material impairment of the prospect of
repayment of any portion of the Obligations; or  (d) Bank determines in good faith, based upon
information available to it and in its reasonable judgment, that there is a
substantial likelihood that Borrower shall fail to comply with one or more of
the financial covenants in Section 6 during the next succeeding financial
reporting period.


 


“Net Income”
means, as calculated on a consolidated basis for Borrower for any period as at
any date of determination, the net profit (or loss), after provision for taxes,
of Borrower and its Subsidiaries for such period taken as a single accounting
period.


 


“NovaScreen”
is defined in the preamble hereof.


 


“Obligations”
are Borrower’s obligation to pay when due any debts, principal, interest, Bank
Expenses and other amounts Borrower owes Bank now or later, whether under this
Agreement, the Loan Documents, or otherwise, including, without limitation, all
obligations relating to letters of credit (including reimbursement obligations
for drawn and undrawn letters of credit), cash management services, and foreign
exchange contracts, if any, and including interest accruing after Insolvency
Proceedings begin and debts, liabilities, or obligations of Borrower assigned
to Bank, and the performance of Borrower’s duties under the Loan Documents.


 


“Operating Documents”
are, for any Person, such Person’s formation documents, as certified with the
Secretary of State of such Person’s state of formation on a date that is no
earlier than 30 days prior to the Effective Date, and its bylaws in current
form,  each of the foregoing with
all current amendments or modifications thereto.


 


“Payment/Advance
Form” is that certain form attached hereto as Exhibit B.


 


“Perfection
Certificate” is: (a) with respect to Caliper, that certain
Perfection Certificate dated as of August 9, 2006 executed by Caliper in
favor of Bank, (b) with respect to NovaScreen, that certain Perfection
Certificate dated as of August 9, 2006 executed by NovaScreen in favor of
Bank, (c) with respect to Xenogen, that certain Perfection Certificate
dated as of September 28, 2006 executed by Xenogen in favor of Bank, and (d) with
respect to Xenogen Biosciences, that certain Perfection Certificate dated as of
September 28, 2006 executed by Xenogen Biosciences in favor of Bank.


 


“Permitted
Indebtedness” is:


 


(a)                                  Borrower’s
Indebtedness to Bank under this Agreement and the other Loan Documents;


 


(b)                                 Indebtedness
existing on the Effective Date and shown on the Perfection Certificate;


 


(c)                                  Subordinated
Debt;


 


(d)                                 unsecured
Indebtedness to trade creditors incurred in the
ordinary course of business;


 


(e)                                  Indebtedness
secured by Permitted Liens;


 


(f)                                    other
unsecured Indebtedness that does not, in the aggregate, exceed One Million
Dollars ($1,000,000.00) outstanding at any time; and


 


(g)                                 extensions,
refinancings, modifications, amendments and restatements of any items of
Permitted Indebtedness (a) through (f) above, provided that the principal
amount thereof is not increased or the terms thereof are not modified to impose
more burdensome terms upon Borrower or its Subsidiary, as the case may be.


 


“Permitted
Investments” are:


 


(a)                                  Investments
shown on the Perfection Certificate and existing on the Effective Date;


 


(b)                                 Cash
Equivalents and Marketable Securities;


 


22

















 


(c)                                  Investments
consisting of (i) travel advances and employee relocation loans and other
employee loans and advances in the ordinary course of business, and (ii) loans
to employees, officers or directors relating to the purchase of equity
securities of Borrower or its Subsidiaries pursuant to employee stock purchase
plans or agreements approved by Borrower’s Board of Directors; and


 


(d)                                 joint
ventures or strategic alliances in the ordinary course of Borrower’s business
consisting of the non-exclusive licensing of technology, the development of
technology or the providing of technical support, provided that any cash
investments by Borrower do not exceed One Million Dollars ($1,000,000.00) in
the aggregate in any fiscal year.


 


“Permitted Liens”
are:


 


(a)                                  Liens
existing on the Effective Date and shown on the Perfection Certificate or
arising under this Agreement and the other Loan Documents;


 


(b)                                 Liens
for taxes, fees, assessments or other government charges or levies, either not
delinquent or being contested in good faith and for which Borrower maintains
adequate reserves on its Books, if they have no priority over any of
Bank’s Liens;


 


(c)                                  Liens
(i) on Equipment acquired or held by Borrower incurred for financing the
acquisition of the Equipment securing no more than One Million Dollars
($1,000,000.00) in the aggregate amount outstanding, or (ii) existing on
Equipment when acquired, if the Liens in both (i) and (ii) are
confined to the property and improvements and the proceeds of the Equipment;
and


 


(d)                                 Liens
incurred in the extension, renewal or refinancing of the indebtedness secured
by Liens described in (a) through (c), but any extension, renewal or
replacement Lien must be limited to the property encumbered by the existing
Lien and the principal amount of the indebtedness may not increase.


 


(e)                                  leases
or subleases of real property granted in the ordinary course of business, and
leases, subleases, non-exclusive licenses or sublicenses of property (other
than real property or intellectual property) granted in the ordinary course of
Borrower’s business, if the leases, subleases, licenses and sublicenses
do not prohibit granting Bank a security interest;


 


(f)                                    non-exclusive
license of intellectual property granted to third parties in the ordinary
course of business; and


 


(g)                                 Liens
arising from judgments, decrees or attachments in circumstances not
constituting an Event of Default under Section 8.4 or 8.7.


 


“Person”
is any individual, sole proprietorship, partnership, limited liability company,
joint venture, company, trust, unincorporated organization, association,
corporation, institution, public benefit corporation, firm, joint stock
company, estate, entity or government agency.


 


“Prime Rate”
is Bank’s most recently announced “prime rate,” even if it is not Bank’s lowest
rate.


 


“Quick Assets”
is, on any date, all cash and Cash Equivalents and Marketable Securities as
shown on Borrower’s consolidated financial statements as of such date prepared
in accordance with GAAP, plus net billed accounts receivable and Unbilled
Accounts, excluding any cash or Cash Equivalents and Marketable Securities that
are restricted or are pledged to any Person other than Bank or any of Bank’s
Affiliates.


 


“Quick Liabilities”
are Current Liabilities, less Deferred Revenue, real estate related restructuring
reserves, and customer deposits.


 


“Registered
Organization” is any “registered organization” as defined in the
Code with such additions to such term as may hereafter be made


 


“Responsible Officer”
is any of the Chief Executive Officer, President, Chief Financial Officer and
Vice President, Finance of Borrower.


 


23

















 


“Revolving Line”
is an Advance or Advances in an aggregate amount of up to Twenty-Five Million
Dollars ($25,000,000.00) outstanding at any time.


 


“Revolving Line
Maturity Date” is June 30, 2009.


 


“Securities Account”
is any “securities account” as defined in the Code with such additions to such
term as may hereafter be made.


 


“Subordinated Debt”
is indebtedness incurred by Borrower subordinated to all of Borrower’s now or
hereafter indebtedness to Bank (pursuant to a subordination, intercreditor, or
other similar agreement in form and substance satisfactory to Bank entered into
between Bank and the other creditor), on terms acceptable to Bank.


 


“Subsidiary”
means, with respect to any Person, any Person of which more than 50% of the
voting stock or other equity interests is owned or controlled, directly or
indirectly, by such Person or one or more Affiliates of such Person.


 


“Total Liabilities”
is on any day, obligations that should, under GAAP, be classified as
liabilities on Borrower’s consolidated balance sheet, including all
Indebtedness, and current portion of Subordinated Debt permitted by Bank to be
paid by Borrower, but excluding all other Subordinated Debt.


 


“Transfer”
is defined in Section 7.1.


 


“Unbilled Account”
is the estimated face value amount (as reasonably determined by Borrower based
upon the best information available to Borrower) of an invoice for an Account
pursuant to services performed by Borrower, which invoice will be generated
(but has not yet been generated) within thirty (30) days of the last day of the
month in which such services were performed, net of any offsets.


 


“Unrestricted Cash”
shall mean all cash, Cash Equivalents and Marketable Securities maintained at
Bank or SVB Securities (provided a control agreement is in place) in Borrower’s
name that is unrestricted and not pledged to any other Person.


 


“Xenogen”
is defined in the preamble hereof.


 


“Xenogen Biosciences”
is defined in the preamble hereof.


 


Signature page follows.


 


24

















 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed as a sealed
instrument under the laws of the Commonwealth of Massachusetts as of the
Effective Date.


 


	
  BORROWER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CALIPER
  LIFE SCIENCES, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Thomas T. Higgins

  	
   

  	
   

  
	
  Name:

  	
  Thomas
  T. Higgins

  	
   

  	
   

  
	
  Title:

  	
  CFO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  NOVASCREEN
  BIOSCIENCES CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Thomas T. Higgins

  	
   

  	
   

  
	
  Name:

  	
  Thomas
  T. Higgins

  	
   

  	
   

  
	
  Title:

  	
  CFO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XENOGEN
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Thomas T. Higgins

  	
   

  	
   

  
	
  Name:

  	
  Thomas
  T. Higgins

  	
   

  	
   

  
	
  Title:

  	
  CFO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XENOGEN
  BIOSCIENCES CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Thomas T. Higgins

  	
   

  	
   

  
	
  Name:

  	
  Thomas
  T. Higgins

  	
   

  	
   

  
	
  Title:

  	
  CFO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BANK:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SILICON
  VALLEY BANK

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Clark Hayes

  	
   

  	
   

  
	
  Name:

  	
  Clark
  Hayes

  	
   

  	
   

  
	
  Title:

  	
  RM

  	
   

  	
   

  



 


[Signature page to Loan and Security Agreement]


 

















 


EXHIBIT A


 


The Collateral consists of all of Borrower’s right, title and interest
in and to the following personal property:


 


All goods, Accounts (including health-care
receivables), Equipment, Inventory, contract rights or rights to payment of
money, leases, license agreements, franchise agreements, General Intangibles
(except as provided below), commercial tort claims, documents, instruments
(including any promissory notes), chattel paper (whether tangible or
electronic), cash, deposit accounts, certificates of deposit, fixtures, letters
of credit rights (whether or not the letter of credit is evidenced by a
writing), securities, and all other investment property, supporting
obligations, and financial assets, whether now owned or hereafter acquired,
wherever located; [and]


 


all Borrower’s Books relating to the foregoing, and
any and all claims, rights and interests in any of the above and all
substitutions for, additions, attachments, accessories, accessions and
improvements to and replacements, products, proceeds and insurance proceeds of
any or all of the foregoing.


 


Notwithstanding the
foregoing, the Collateral does not include any of the following, whether now
owned or hereafter acquired (a) more than 65% of the presently existing
and hereafter arising issued and outstanding shares of capital stock owned by
Borrower of any Foreign Subsidiary which shares entitle the holder thereof to
vote for directors or any other matter, (b) license agreements solely for
the use of Intellectual Property of a third party, with respect to which
license Borrower is the licensee, (c) any copyright rights, copyright
applications, copyright registrations and like protections in each work of
authorship and derivative work, whether published or unpublished, (d) any
patents, patent applications and like protections, including improvements,
divisions, continuations, renewals, reissues, extensions, and continuations-in-part
of the same, trademarks, service marks and, to the extent permitted under
applicable law, any applications therefor, whether registered or not, and the
goodwill of the business of Borrower connected with and symbolized thereby, (e) any
know-how, operating manuals, trade secret rights, rights to unpatented
inventions, and (f) any claims for damage by way of any past, present, or
future infringement of any of the foregoing; provided, however, the Collateral
shall include all Accounts, license and royalty fees and other revenues,
proceeds, or income arising out of or relating to any of the foregoing.


 


Pursuant to the terms of
a certain negative pledge arrangement with Bank, Borrower has agreed not to
encumber any of its copyright rights, copyright applications, copyright
registrations and like protections in each work of authorship and derivative
work, whether published or unpublished, any patents, patent applications and
like protections, including improvements, divisions, continuations, renewals,
reissues, extensions, and continuations-in-part of the same, trademarks,
service marks and, to the extent permitted under applicable law, any
applications therefor, whether registered or not, and the goodwill of the
business of Borrower connected with and symbolized thereby, know-how, operating
manuals, trade secret rights, rights to unpatented inventions, and any claims
for damage by way of any past, present, or future infringement of any of the
foregoing, without Bank’s prior written consent.


 


1

















 


EXHIBIT B


 


Loan Payment/Advance Request Form


 


DEADLINE FOR SAME DAY PROCESSING IS NOON E.S.T.*


 


	
  Fax
  To:

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
  LOAN PAYMENT:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Caliper Life Sciences, Inc., as Agent

  
	
   

  	
   

  	
   

  
	
  From Account #

  	
   

  	
   

  	
  To Account #

  	
   

  
	
  (Deposit Account #)

  	
   

  	
  (Loan Account #)

  
	
   

  	
   

  	
   

  
	
  Principal $

  	
   

  	
   

  	
  and/or Interest $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Authorized Signature:

  	
   

  	
   

  	
  Phone Number:

  	
   

  
	
  Print Name/Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LOAN ADVANCE:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Complete Outgoing Wire Request
  section below if all or a portion of the funds from this loan advance are for
  an outgoing wire.

  
	
   

  	
   

  	
   

  
	
  From Account #

  	
   

  	
   

  	
  To Account #

  	
   

  
	
  (Loan Account #)

  	
   

  	
  (Deposit Account #)

  
	
   

  	
   

  	
   

  
	
  Amount of Advance $

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  All Borrower’s representations and warranties in the Loan and
  Security Agreement are true, correct and complete in all material respects on
  the date of the request for an advance; provided, however, that such
  materiality qualifier shall not be applicable to any representations and
  warranties that already are qualified or modified by materiality in the text
  thereof; and provided, further that those representations and warranties
  expressly referring to a specific date shall be true, accurate and complete
  in all material respects as of such date:

  
	
   

  	
   

  	
   

  
	
  Authorized Signature:

  	
   

  	
   

  	
  Phone Number:

  	
   

  
	
  Print Name/Title:

  	
   

  	
   

  	
   

  	
   

  
																



 


	
  OUTGOING WIRE REQUEST:

  	
   

  	
   

  
	
  Complete only if all or a portion of funds from the loan advance
  above is to be wired.

  
	
  Deadline for same day processing is noon, E.S.T.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Beneficiary Name:

  	
   

  	
   

  	
  Amount of Wire: $

  	
   

  
	
  Beneficiary Bank:

  	
   

  	
   

  	
  Account Number:

  	
   

  
	
  City and State:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Beneficiary Bank Transit (ABA) #:

  	
   

  	
   

  	
  Beneficiary Bank Code (Swift, Sort, Chip, etc.):

  	
   

  
	
   

  	
   

  	
   

  	
  (For
  International Wire Only)

  
	
   

  	
   

  	
   

  
	
  Intermediary Bank:

  	
   

  	
   

  	
  Transit (ABA) #:

  	
   

  
	
  For Further Credit to:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Special Instruction:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By signing below, I (we)
  acknowledge and agree that my (our) funds transfer request shall be processed
  in accordance with and subject to the terms and conditions set forth in the
  agreements(s) covering funds transfer service(s), which agreements(s) were
  previously received and executed by me (us).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorized Signature:

  	
   

  	
   

  	
  2nd Signature (if required):

  	
   

  
	
  Print Name/Title:

  	
   

  	
   

  	
  Print Name/Title:

  	
   

  
	
  Telephone
  #:

  	
   

  	
   

  	
  Telephone

  	
   

  
																			



 






* Unless otherwise provided for an Advance bearing interest at LIBOR.


 


1

















 


EXHIBIT C


 


BORROWING BASE CERTIFICATE


 


Borrower:                                            CALIPER LIFE SCIENCES, INC., NOVASCREEN
BIOSCIENCES CORPORATION, XENOGEN CORPORATION and XENOGEN BIOSCIENCES
CORPORATION


Lender:                                                        SILICON VALLEY BANK


Commitment
Amount:                            $25,000,000.00


 


	
  ACCOUNTS RECEIVABLE

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Accounts Receivable Book
  Value as of 

  	
   

  	
  $

  	
   

  
	
  2.

  	
   

  	
  Additions (please explain
  on reverse)

  	
   

  	
  $

  	
   

  
	
  3.

  	
   

  	
  TOTAL ACCOUNTS RECEIVABLE

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
  ACCOUNTS RECEIVABLE
  DEDUCTIONS (without duplication)

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Amounts over 90 days due

  	
   

  	
  $

  	
   

  
	
  5.

  	
   

  	
  Balance of 50% over 90 day
  accounts

  	
   

  	
  $

  	
   

  
	
  6.

  	
   

  	
  Credit balances over 90
  days

  	
   

  	
  $

  	
   

  
	
  7.

  	
   

  	
  Concentration Limits

  	
   

  	
  $

  	
   

  
	
  8.

  	
   

  	
  Foreign Accounts (only if
  specifically deemed ineligible by Bank)

  	
   

  	
  $

  	
   

  
	
  9.

  	
   

  	
  Governmental Accounts
  (only if specifically deemed ineligible by Bank)

  	
   

  	
  $

  	
   

  
	
  10.

  	
   

  	
  Contra Accounts

  	
   

  	
  $

  	
   

  
	
  11.

  	
   

  	
  Promotion or Demo Accounts

  	
   

  	
  $

  	
   

  
	
  12.

  	
   

  	
  Intercompany/Employee
  Accounts

  	
   

  	
  $

  	
   

  
	
  13.

  	
   

  	
  Disputed Accounts

  	
   

  	
  $

  	
   

  
	
  14.

  	
   

  	
  Deferred Revenue

  	
   

  	
  $

  	
   

  
	
  15.

  	
   

  	
  Other (please explain on
  reverse)

  	
   

  	
  $

  	
   

  
	
  16.

  	
   

  	
  TOTAL ACCOUNTS RECEIVABLE
  DEDUCTIONS

  	
   

  	
  $

  	
   

  
	
  17.

  	
   

  	
  Eligible Accounts (#3
  minus #16)

  	
   

  	
  $

  	
   

  
	
  18.

  	
   

  	
  ELIGIBLE AMOUNT OF
  ACCOUNTS (80% of #17, plus 90% of Unrestricted Cash)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BALANCES

  	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  Maximum Loan Amount

  	
   

  	
  $

  	
   

  
	
  20.

  	
   

  	
  Total Funds Available
  (Lesser of #18 or #19)

  	
   

  	
  $

  	
   

  
	
  21.

  	
   

  	
  Present balance owing on
  Line of Credit

  	
   

  	
  $

  	
   

  
	
  22.

  	
   

  	
  Outstanding under
  Sublimits

  	
   

  	
  $

  	
   

  
	
  23.

  	
   

  	
  RESERVE
  POSITION (#20 minus #21 and #22)

  	
   

  	
  $

  	
   

  



 


The undersigned represents and
warrants that this is true, complete and correct, and that the information in
this Borrowing Base Certificate complies with the representations and
warranties in the Loan and Security Agreement between the undersigned and
Silicon Valley Bank.


 


	
   

  	
   

  	
  BANK USE ONLY

  
	
  COMMENTS:

  	
   

  	
  Received by:

  	
   

  
	
   

  	
   

  	
  AUTHORIZED SIGNER  

  
	
   

  	
   

  	
  Date:

  	
   

  
	
  By:

  	
   

  	
   

  	
  Verified:

  	
   

  
	
  Authorized Signer

  	
   

  	
  AUTHORIZED SIGNER  

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
  Compliance Status:

  	
  Yes o

  	
  No o

  
											



 


1

















 


EXHIBIT D


 


COMPLIANCE CERTIFICATE


 


	
  TO:

  	
   

  	
  SILICON
  VALLEY BANK

  	
  Date:

  	
   

  
	
  FROM:
  

  	
   

  	
  CALIPER
  LIFE SCIENCES, INC.

  	
   

  	
   

  
	
   

  	
   

  	
  NOVASCREEN
  BIOSCIENCES CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
  XENOGEN
  CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
  XENOGEN
  BIOSCIENCES CORPORATION

  	
   

  	
   

  



 


The undersigned authorized officers of Caliper Life
Sciences, Inc., NovaScreen Biosciences Corporation, XenogenCorporation,
and Xenogen Biosciences Corporation (individually and collectively, “Borrower”)
certify that under the terms and conditions of the Loan and Security Agreement
between Borrower and Bank (the “Agreement”), (1) Borrower is in complete
compliance for the period ending
                              
with all required covenants except as noted below, (2) there are no Events
of Default, (3) all representations and warranties in the Agreement are
true and correct in all material respects on this date except as noted below;
provided, however, that such materiality qualifier shall not be applicable to
any representations and warranties that already are qualified or modified by
materiality in the text thereof; and provided, further that those
representations and warranties expressly referring to a specific date shall be
true, accurate and complete in all material respects as of such date, (4) Borrower,
and each of its Subsidiaries, has timely filed all required tax returns and
reports, and Borrower has timely paid all foreign, federal, state and local
taxes, assessments, deposits and contributions owed by Borrower except as
otherwise permitted pursuant to the terms of Section 5.9 of the Agreement,
and (5) no Liens have been levied or claims made against Borrower relating
to unpaid employee payroll or benefits of which Borrower has not previously
provided written notification to Bank. 
Attached are the required documents supporting the certification.  The undersigned certifies that these are
prepared in accordance with GAAP consistently applied from one period to the
next except as explained in an accompanying letter or footnotes.  The undersigned acknowledges that no
borrowings may be requested at any time or date of determination that Borrower
is not in compliance with any of the terms of the Agreement, and that compliance
is determined not just at the date this certificate is delivered.  Capitalized terms used but not otherwise
defined herein shall have the meanings given them in the Agreement.


 


Please indicate compliance status by circling Yes/No under “Complies”
column.


 


	
  Reporting Covenant

  	
   

  	
  Required

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quarterly financial statements with Compliance
  Certificate

  	
   

  	
  Quarterly
  within 45 days

  	
   

  	
  Yes o No o

  
	
  Annual
  financial statement (CPA Audited)

  	
   

  	
  FYE
  within 120 days

  	
   

  	
  Yes o No o

  
	
  Board
  Approved Projections

  	
   

  	
  Annually,
  as revised

  	
   

  	
  Yes o No o

  
	
  Audit

  	
   

  	
  Annually

  	
   

  	
  Yes o No o

  
	
  Borrowing
  Base Certificate & A/R Agings

  	
   

  	
  Monthly
  within 30 days (when Unrestricted Cash < $25,000,000.00 and months in
  which Credit Extensions requested or outstanding)

  	
   

  	
  Yes o No o

  
	
  Cash
  Report

  	
   

  	
  Monthly
  within 15 days

  	
   

  	
  Yes o No o

  



 


	
  Financial Covenant

  	
   

  	
  Required

  	
   

  	
  Actual

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maintain
  at all times (tested quarterly):

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Minimum
  Adjusted Quick Ratio

  	
   

  	
  : 1.0

  	
  *

  	
  :1.0

  	
   

  	
  Yes o No o

  
	
  Minimum
  EBITDA-Cap Ex

  	
   

  	
  $

  	
   

  	
  **

  	
  $

  	
   

  	
  Yes o No o

  
								



 






*As
set forth in Section 6.7(a) of the Agreement.


**As
set forth in Section 6.7(b) of the Agreement.


 


1

















 


The
following financial covenant analyses and information set forth in Schedule 1
attached hereto are true and accurate as of the date of this Certificate.


 


The
following are the exceptions with respect to the certification above:  (If no exceptions exist, state “No exceptions
to note.”)


 


 


	
  Caliper
  Life Sciences, Inc.

  	
   

  	
  BANK USE ONLY

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  Received
  by:

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
  AUTHORIZED
  SIGNER

  
	
  Title:

  	
   

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
  NovaScreen
  Biosciences Corporation

  	
   

  	
  Verified:

  	
   

  
	
   

  	
   

  	
   

  	
  AUTHORIZED
  SIGNER

  
	
  By:

  	
   

  	
   

  	
  Date:

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Compliance
  Status:

  	
  Yes
  o

  	
  No
  o

  
	
   

  	
   

  	
   

  
	
  Xenogen
  Corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Xenogen
  Biosciences Corporation 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
														



 


2

















 


Schedule 1
to Compliance Certificate


 


Financial
Covenants of Borrower


 


Dated:


 


In
the event of a conflict between this Schedule and the Loan Agreement, the terms
of the Loan Agreement shall control.


 


I.                                         ADJUSTED QUICK RATIO


 


	
  A.

  	
   

  	
  Aggregate
  value of the Unrestricted Cash and Cash Equivalents and Marketable Securities
  of Borrower

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Aggregate
  value of the net billed accounts receivable and Unbilled Accounts of Borrower

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Quick
  Assets (the sum of lines A and B)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  Aggregate
  value of Obligations to Bank

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E.

  	
   

  	
  Aggregate
  value of liabilities of Borrower (including all Indebtedness)  that matures within one (1) year and
  current portion of Subordinated Debt permitted by Bank to be paid by Borrower

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F

  	
   

  	
  Aggregate
  value of (i) Deferred Revenue, (ii) real estate related
  restructuring expenses, and (iii) customer deposits

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  G.

  	
   

  	
  Quick
  Liabilities (the sum of lines D and E minus line F)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  H.

  	
   

  	
  Adjusted
  Quick Ratio (line C divided by line G)

  	
   

  	
   

  	
   

  



 


Is
line H equal to or greater than:


 


(i) 0.95 to 1.0 for the quarters ending March 31, 2008, June 30,
2008 and September 30, 2008


(ii) 1.0 to 1.0 for the quarters ending December 31, 2008 and
March 31, 2009


 


	
  o No, not in compliance

  	
  o Yes, in compliance

  



 


II.                                     MINIMUM  EBITDA minus CAP-EX


 


Required:


 


	
  A.

  	
   

  	
  Net
  Income

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Interest
  Expense

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  To
  the extent included in the determination of Net Income:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  Depreciation
  expense

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
  Amortization
  expense

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.

  	
  Non-cash
  stock-based compensation expense

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  income
  tax expense

  	
   

  	
  $

  	
   

  



 


3

















 


	
  E.

  	
   

  	
  without
  duplication, restructuring charges and litigations charges not to exceed
  $5,000,000 in the aggregate (for the quarters ending March 31, 2008,
  June 30, 2008 and September 30, 2008)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F.

  	
   

  	
  EBITDA
  (line A, plus line B, plus line C.1, plus line C.2, plus line C.3, plus line
  D, and plus line E)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  G.

  	
   

  	
  capital
  expenditures

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  H.

  	
   

  	
  EBIDTA
  minus CAP EX (line F minus line G)

  	
   

  	
  $

  	
   

  



 


	
  Is
  line H equal to or greater than:

  	
   

  	
  (a) ($7,000,000)
  for the two-quarter period ending 3/31/08

  
	
   

  	
   

  	
  (b) ($10,000,000)
  for the two-quarter period ending 6/30/08

  
	
   

  	
   

  	
  (c) ($3,000,000)
  for the two-quarter period ending 9/30/08

  
	
   

  	
   

  	
  (d) $2,000,000
  for the two-quarter period ending 12/31/08

  
	
   

  	
   

  	
  (e) ($2,500,000)
  for the two-quarter period ending 3/31/09

  



 


	
  o No, not in compliance

  	
  o Yes, in compliance

  



 


4

















 


SCHEDULE 12.13


 


Caliper Life Sciences, Inc.


 


1 (h)                        The
Company currently maintains its bank and investment accounts at:


 


(1)                                  Bank Accounts –
Wachovia, SVB


 


(2)                                  Investment Accounts –
SVB Asset Management


 


(3)                                  Payroll Accounts –
SVB


 


(4)                                  Other
depository/operating accounts – SVB, Bank of America, Wachovia


 


2 (d)                        If
different from the addresses set fort in subparagraphs (a), (b) or (c) above,
the following are all places of business of the Company and/or locations
maintained by the Company where any Collateral consisting of equipment and/or
inventory are located:


 


	
  Mailing Address

  	
   

  	
  City

  	
   

  	
  State

  
	
  605
  Fairchild Drive

  	
   

  	
  Mountain
  View

  	
   

  	
  CA

  
	
  7170
  Standard Dive

  	
   

  	
  Hanover

  	
   

  	
  MD

  
	
  2061
  Challenger Drive

  	
   

  	
  Alameda

  	
   

  	
  CA

  
	
  5 Cedar Brook Drive

  	
   

  	
  Cranbury

  	
   

  	
  NJ

  



 


NovaScreen Biosciences Corporation


 


1 (h)                        The
Company currently maintains its bank and investment accounts at:


 


(1)                                  Bank Accounts – SVB


 


(2)                                  Investment Accounts –


 


(3)                                  Payroll Accounts –
SVB through Caliper Life Sciences, Inc.


 


(4)                                  Other
depository/operating accounts – SVB through Caliper Life Sciences, Inc.


 


5