**Exhibit 2.1**

 

ASSET PURCHASE AGREEMENT

 

ThisASSET PURCHASE AGREEMENT (this “**Agreement**”)is made and entered into this 17th day of May,2010, by and between Biotage LLC, a Delaware limited liability company (“**Buyer**”) and Caliper Life Sciences, Inc.,a Delaware corporation (“**Seller**”).

 

WITNESETH:

 

WHEREAS,Seller is engaged in the business of manufacturing, marketing and selling theTurboVap® and RapidTrace® product lines, together with parts, accessories andservices therefor (the “**Business**”);and

 

WHEREAS,Seller desires to sell, assign, transfer and convey to Buyer, and Buyer desiresto purchase, acquire and accept from Seller, all of the assets of the Business,pursuant to and in accordance with the terms and conditions of this Agreement.

 

NOW,THEREFORE, in consideration of the mutual representations, warranties,covenants and agreements set forth herein and other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,and intending to be legally bound hereby, the parties hereto agree as follows:

 

**ARTICLE 1.  DEFINITIONS**

 

1.1           Definitions.  Capitalized terms used in this Agreementshall have the meanings set forth below:

 

“**Affiliate**” shall mean any Person orentity which controls, is controlled by or is under common control with thePerson in question, including any officer, director or shareholder thereof.

 

“**Applicable Law**” shall mean anyapplicable federal, state, local or foreign law, statute, ordinance, rule,regulation and any other executive or legislative proclamation of anyGovernmental Authority.

 

“**Business Day**” shall mean any day otherthan a Saturday or a Sunday or other day on which banking institutions in TheCommonwealth of Massachusetts are authorized or required by Applicable Law orother governmental action to close.

 

“**Claim**” or “**Claims**” shall mean any claim, demand,cause of action, chose in action, right of recovery, right of set-off, action,arbitration, suit, litigation, proceeding or investigation of whatever kind ordescription against any Person.

 

“**Code**” shall mean the Internal RevenueCode 1986, as amended, and the rules and regulations promulgatedthereunder and with respect thereto.

 

“**Collar Amount**” shall mean an amountequal to **[***]** Dollars ($**[***]**).

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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“**Confidential Information**” shall mean anyand all information regarding the Purchased Assets or Business that is notgenerally and lawfully known by others with whom the Seller competed or didbusiness prior to the Closing Date and with whom Buyer competes or doesbusiness after the Closing Date, and any and all information which, if known byothers with whom the Buyer competes or does business, could assist such partiesin competition with Buyer.  Withoutlimiting the generality of the foregoing, “Confidential Information” mayinclude, without limitation, any information concerning sources of supply,costs, pricing practices, financial data, business plans, technical processes,products, facilities, methods, trade secrets and other intellectual property,software, source code, systems, procedures, manuals, confidential reports,product price lists, Customer and Supplier Lists, prospects or opportunities.

 

“**GAAP**” shall mean the generally acceptedaccounting principles for financial reporting in the United States consistentlyapplied.

 

“**Governmental Authority**” shall mean anyfederal, state or local governmental entity, authority or agency, court,tribunal, board, regulatory commission or other body of any federal, state,county, district, municipality, city, foreign or other government unit.

 

“**Indebtedness**” of any Person shall meanand includes: (i) indebtedness for borrowed money or indebtedness issuedor incurred in substitution or exchange for indebtedness for borrowed money, (ii) amountsowing as deferred purchase price for property or services, including all sellernotes and “earn-out” payments, (iii) indebtedness evidenced by any note,bond, debenture, mortgage or other debt instrument or debt security, (iv) commitmentsor obligations by which such Person assures a creditor against loss (includingcontingent reimbursement obligations with respect to letters of credit), (v) indebtednesssecured by a Lien on assets or properties of such Person, (vi) obligationsor commitments to repay deposits or other amounts advanced by and owing tothird parties, (vii) obligations under any interest rate, currency orother hedging agreement or (viii) guarantees or other contingentliabilities (including so called take-or-pay or keep-well agreements) withrespect to any indebtedness, obligation, Claim or liability of any other Personof a type described in clauses (i) through (vii) above.

 

“**Independent Accountant**” shall mean BDOSiedman LLC or any other accounting firm of national reputation which ismutually acceptable to the Buyer and the Seller.

 

“**Lien**” shall mean any mortgage, lien,pledge, Claim, security interest, encumbrance or restriction of any naturewhatsoever (including any agreement to give any of the foregoing).

 

“**Loss**” or “**Losses**”shall mean any and all assessments, losses, damages, costs, expenses, liabilities,judgments, awards, fines, sanctions, penalties, charges, Taxes and amounts paidor incident to any of the foregoing or in investigation, defense or settlementof Claims relating to losses (including, without limitation, reasonable costs,fees, and expenses (including expenses of attorneys, experts, accountants,appraisers, consultants, witnesses, investigators and any other agents of suchPerson)).

 

“**Person**” shall mean an individual,corporation, limited liability company, association, 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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jointstock company, trust, partnership, joint venture, unincorporated organization,a government or any department or agency thereof, or any other legal entity.

 

“**Target Working Capital**” shall meanTwo Million Eight Hundred Thousand Dollars ($2,800,000).

 

“**Tax**” or “**Taxes**”shall mean all taxes, charges, fees, duties, levies, penalties or otherassessments imposed by any Governmental Authority, including, withoutlimitation, all income, gross receipts, excise, property, sales, gain, use,license, custom duty, unemployment, capital stock, transfer, franchise,payroll, withholding, social security, minimum estimated, profit, gift,severance, value added, disability, premium, recapture, credit, occupation,service, leasing, employment, stamp and other taxes, and shall includeinterest, penalties or additions attributable thereto or attributable to anyfailure to comply with any requirement regarding tax returns.

 

“**Tax Returns**” shall mean allreturns, reports (including elections, declarations, disclosures, schedules,estimates and informational tax returns), statements, and forms required to befiled in respect of any Tax.

 

“**Transaction Documents**” shall meanthis Agreement and each of the other agreements, documents and instrumentscontemplated hereby.

 

“**Transfer Taxes**” shall mean allstamp, transfer, documentary, recording, sales and use, value added,registration, and other such taxes and fees (including any penalties andinterest) incurred in connection with this Agreement or any transactioncontemplated hereby.

 

“**Working Capital**” shall mean shallmean (X) the sum of (i) Inventory, plus (ii) OutstandingAccounts Receivable that are less than six (6) months old as of theClosing, minus (Y) Assumed Accounts Payable, in each case as determined inaccordance with GAAP, and shall exclude any cash or deferred revenue relatingto the Business.

 

1.2           CertainAdditional Definitions.  As used inthis Agreement, the following terms shall have the respective meanings ascribedthereto in the respective sections of this Agreement set forth opposite eachsuch term below:

 
| **Term**                             | ** ** | **Section** |
|--------------------------------------|------------|-------------|
| Agreement                            |       | Preamble    |
| Allocation  Schedule                 |       | 3.2         |
| Assignment  and Assumption Agreement |       | 4.2(c)      |
| Assumed  Accounts Payable            |       | 2.3(a)      |
| Assumed  Contracts                   |       | 2.1(g)      |
| Assumed  Liabilities                 |       | 2.3         |
| Books  and Records                   |       | 2.1(d)      |
| Business                             |       | Recitals    |
| Business  Employee                   |       | 7.1(a)      |
| Buyer                                |       | Preamble    |
| Buyer  Indemnified Party             |       | 8.1         |
| Claim  Notice                        |       | 8.5         |
| Closing                              |       | 4.1         |

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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| **Term**                           | ** ** | **Section**    |
|------------------------------------|------------|----------------|
| Closing  Date                      |       | 4.1            |
| Closing  Working Capital           |       | 3.4(a)         |
| Closing  Working Capital Statement |       | 3.4(a)         |
| Competitive  Business              |       | 7.4(a)         |
| Conflict                           |       | 5.3            |
| Contract  Manufacturing Agreement  |       | 7.8            |
| Customer  and Supplier List        |       | 2.1(c)         |
| Customer  Orders                   |       | 2.1(l)         |
| Deficiency                         |       | 3.4(d)         |
| Equipment                          |       | 2.1(e)         |
| Excess                             |       | 3.4(d)         |
| Excluded  Assets                   |       | 2.2            |
| Excluded  Contracts                |       | 2.2(d)         |
| Excluded  Liabilities              |       | 2.4            |
| Indemnification  Cap               |       | 8.3            |
| Indemnifying  Party                |       | 8.5            |
| Indemnitee  Party                  |       | 8.5            |
| Intellectual  Property             |       | 2.1(a)         |
| Inventory                          |       | 2.1(j)         |
| Licenses  and Permits              |       | 2.1(h)         |
| Outstanding  Accounts Receivable   |       | 2.1(i)         |
| Products                           |       | 2.1(f)         |
| Purchase  Orders                   |       | 2.1(k)         |
| Purchase  Price                    |       | 3.1            |
| Purchased  Assets                  |       | 2.1            |
| Restricted  Period                 |       | 7.4(a)         |
| Review  Period                     |       | 3.4(b)         |
| Schedules                          |       | Article V |
| Seller                             |       | Preamble       |
| Seller  Indemnified Party          |       | 8.2            |
| Seller  Marks                      |       | 7.9            |
| Territory                          |       | 7.4(a)         |
| Threshold  Amount                  |       | 8.3            |
| Transferred  Employees             |       | 7.1(a)         |
| Transition  Services Agreement     |       | 7.7            |

 

**ARTICLE 2.  PURCHASE AND SALE OF ASSETS**

 

2.1         Transferof Assets.  At the Closing, and upon the terms and subject to theconditions set forth in this Agreement, Seller shall sell, assign, transfer andconvey to Buyer, and Buyer shall purchase, acquire and accept from Seller, allright, title and interest in and to the following assets, properties, rightsand interests owned or held by Seller and used or held for use in connectionwith the Business, wherever located, whether tangible or intangible, personalor 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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mixed as the same existat the Closing, free and clear of all Liens, but specifically excluding theExcluded Assets (collectively, the “**PurchasedAssets**”):

 

(a)          all United States and foreign patents,patent applications, trademarks, service marks and other indicia of origin,trademark and service mark registrations and applications for registrationthereof, trade names, service names, brand names, corporate and business namesused in the Business, including, without limitation, the “TurboVap®” and “RapidTrace®”names and all derivations thereof (including registrations thereof andapplications therefor), trade dress, logos, copyrights, copyright registrationsand application for registration thereof, trade secrets, unpatented inventions,invention disclosures, discoveries and improvements, moral and economic rightsof authors and inventors (however denominated), technical data, technicalfiles, device master records, product drawings, know-how, formulae, methods(whether or not patentable), specifications, designs and other technicalinformation, processes, shop rights, procedures, technology, source codes,object codes, computer software programs, databases, and other proprietaryinformation or material of any type, whether written or unwritten (and allderivatives, improvements and refinements thereof, and all applications for theforegoing), and all other intellectual property and proprietary rights owned byor licensed to Seller, in all cases used or held for use by Seller inconnection with the Business, and all of the goodwill associated with theforegoing (collectively, “**Intellectual Property**”),as set forth in part on **Schedule 2.1(a) **hereto;

 

(b)          [**RESERVED**]

 

(c)          a listing of all of Seller’s customersand suppliers with respect to the Business and the Products, together with alist and related documentation of all “sales leads” known to Seller (the “**Customer and Supplier List**”), as setforth in **Schedule 2.1(c) **heretowhich shall detail (i) the installed base of the Products sold by theBusiness prior to the Closing, and all of the Business’ customers, and thecontact information thereof, in each case by country as set forth below:

 

(A)      forthe United States, since 2004;

 

(B)        forGermany since 2007;

 

(C)        forSwitzerland, since 2005;

 

(D)       forFrance, since 1999 for RapidTrace Products and since 2006 for TurboVapProducts;

 

(E)         forthe United Kingdom, since 1995;

 

(ii) all of theBusiness’ suppliers, and the contact information thereof, for the period oftwenty-four (24) months prior to the Closing Date and (iii) contactinformation and records regarding all known sales prospects as of the ClosingDate;

 

(d)          all information used in or generatedby the Business, including (i) proprietary and confidential informationrelating to the Business, (ii) all books, records and other informationsolely or primarily relating to the operation of the Business, such 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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as, without limitation,records relating to customers and suppliers, (iii) records relating to theTransferred Employees, and consultants and contractors of the Business, (iv) creditinformation relating to customers of the Business, and (v) catalogs,brochures, marketing materials, advertising copy and training and other manualsrelating to the Products (collectively, the “**Books and Records**”), with Seller maintaining the right toretain copies of all such documents, except to the extent that any suchdocuments which relate to the Business are determined in good faith by Buyer tocontain competitively sensitive information;

 

(e)          all equipment, machinery, fixtures,computers specified on Schedule 2.1(e) hereto, spare parts, dies,molds, tools, tooling and other items of tangible personal property owned bySeller for the benefit of and/or used in the Business, (collectively, the “**Equipment**”), a complete listing ofwhich is set forth in **Schedule 2.1(e) **hereto;

 

(f)           all rights to (i) existingproducts currently sold under the brand “TurboVap®” or “RapidTrace®” as of thedate hereof; (ii) discontinued products developed or sold under the “TurboVap®”or “RapidTrace®” brands; and (c) products in development under the brand “TurboVap®”or “RapidTrace®” (collectively referred to herein as the “**Products**”), a complete list of which isset forth on **Schedule 2.1(f) **hereto;

 

(g)          all rights of Seller under thecontracts, leases, licenses, agreements, instruments, Purchase Orders, CustomerOrders, open bids, arrangements and other undertakings or commitments withrespect to the Business listed on **Schedule2.1(g) **(the “**AssumedContracts**”), and all security deposits thereunder, but excludingany contracts, leases and agreements not specifically assumed by Buyer at theClosing;

 

(h)          all rights, titles and interests ofSeller in and to all permits, licenses, registrations and other approvals orauthorizations used or held for use in connection with the Business, including,without limitation, all approvals, authorizations, certifications or permitsrequired by any Governmental Authority, in order to operate the Business, tothe extent transferable (collectively, the “**Licenses and Permits**”), a complete listing of which is setforth in **Schedule 2.1(h) **hereto;

 

(i)           all outstanding and unpaid accountsreceivable as of the Closing in connection with the Business (“**Outstanding Accounts Receivable**”), acomplete listing of which, and aging thereof as of April 30, 2010 is setforth in **Schedule 2.1(i) **hereto;

 

(j)           all saleable inventories used in,arising out of or otherwise materially related to the Business (including rawmaterials, works-in-process, finished goods, packaging, supplies and parts)(collectively, the “**Inventory**”),a complete listing of which as of April 30, 2010 is set forth on **Schedule 2.1(j) **hereto;

 

(k)          that portion of any purchase ordersplaced by Seller with suppliers to the Business, and which relate solely to theBusiness, that are not fully delivered, invoiced and paid as of the Closing(the “**Purchase Orders**”), acomplete listing of which as of 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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May 6, 2010 is areset forth in **Schedule 2.1(k)**;

 

(l)           the customer orders for Products thatare not fully delivered and invoiced as of the Closing (the “**Customer Orders**”), a complete listingof which as of April 30, 2010 is set forth in **Schedule 2.1(l) **hereto;

 

(m)         all rights of Seller pursuant to anyexpress or implied warranties, representations or guarantees made by suppliersor vendors furnishing goods or services to the Business;

 

(n)          all goodwill related to the Business;

 

(o)          all of Seller’s rights, causes ofaction, vendor, supplier and similar Claims, deposits, prepayments, refunds,judgments, Claims and demands of whatever nature, known or unknown, relating tothe Purchased Assets.

 

2.2           ExcludedAssets.  Buyer expressly understandsand agrees that, except for the Purchased Assets, Seller is nothereunder selling, assigning, transferring or conveying to Buyer any otherassets, rights, interests or Claims, including, without limitation, thefollowing (collectively, the “**ExcludedAssets**”):

 

(a)          all rights and interests of Seller inand to any of its real property;

 

(b)          all cash and cash equivalents,securities, and negotiable instruments of the Seller on hand, in bank accounts,in lock boxes, in financial institutions or elsewhere;

 

(c)          minute books, stock record books andcorporate certificates of authority of Seller;

 

(d)          any of Seller’s rights under anycontract, lease, license, agreement, instrument, purchase order, open bid,arrangement or other undertaking or commitment with respect to the Businessthat is listed on **Schedule 2.2(d) **(the“**Excluded Contracts**”);

 

(e)          all assets set forth on **Schedule 2.2** hereto; and

 

(f)           any of the rights of Seller underthis Agreement.

 

2.3           Liabilitiesof Seller Assumed by Buyer.  At theClosing, Buyer shall assume and shall pay, perform and discharge, as and whendue, only the following liabilities and obligations of Seller with respect tothe Business (collectively, the “**AssumedLiabilities**”):

 

(a)           all accounts payable relating to theBusiness that are not yet past due as of the Closing Date (the “**Assumed Accounts Payable**”), a completelisting of which as of April 30, 2010 is set forth in **Schedule 2.3(a) **hereto, which suchschedule includes the aging of each listed accounts payable;

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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(b)           all warranty claims (other thanarising out of any defects set forth in **Schedule5.13(b) **hereto), costs and commission obligations directlyrelating to the Outstanding Accounts Receivable that are collected by Buyer;and

 

(c)           Seller’s executory obligationsarising after the Closing Date under each of the Assumed Contracts, except tothe extent that any such executory obligations result from, arise out of,relate to, or are caused by, any one or more of the following: (i) anybreach of any of the Assumed Contracts occurring on or before the Closing Date,(ii) any infringement or violation of any Law occurring on or before theClosing Date, or (iii) any event or condition occurring or existing on orbefore the Closing Date which through the passage of time or the giving ofnotice or both would constitute a breach or default by Seller under any of theAssumed Contracts.

 

2.4           LiabilitiesNot Assumed.  Except for the AssumedLiabilities, Buyer has not agreed to pay, perform or discharge, shall not berequired to assume, and shall have no liability or obligation with respect to,any liability or obligation, direct or indirect, absolute or contingent, knownor unknown, of Seller (collectively, the “**ExcludedLiabilities**”).  For theavoidance of doubt, Excluded Liabilities shall include, without limitation, allliabilities:

 

(a)          with respect to accounts payable(other than Assumed Accounts Payable), Indebtedness and Taxes of Seller orany of its Affiliates, whether relating to the Business, the Products orotherwise;

 

(b)          arising under the Excluded Contractsor the Excluded Assets;

 

(c)          of Seller resulting from, caused by orarising out of, directly or indirectly, the conduct of the Business, employmentof any employees or contractors or ownership or lease of any of assets orproperties prior to or on the Closing Date; and

 

(d)          for all Claims existing as of theClosing Date (whether known or unknown) and arising out of, resulting from, orrelating to, directly or indirectly, the Purchased Assets, the Business and/or theProducts and all liabilities for all Claims not existing as of the Closing Datethat arise out of, result from or relate to the ownership, sale or operation ofthe Purchased Assets, the Business and/or the Products by Seller on or prior tothe Closing Date.

 

2.5           Assignmentof Contracts.  Notwithstandinganything in this Agreement to the contrary, this Agreement shall not constitutean agreement to assign, nor shall the Purchased Assets be deemed to include,any contract, instrument, agreement, license, permit, lease, commitment, salesorder, purchase order or any Claim or right, or any benefit arising thereunderor resulting therefrom, if an assignment thereof, without the consent of athird party thereto, would be ineffective, or would constitute a breach thereofor would in any way affect the rights of Buyer or Seller thereunder.  If any such consent is not obtained, Sellerwill cooperate with Buyer in any reasonable arrangement designed to provide forBuyer the benefits under any such 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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contracts, instruments,agreements, licenses, permits, leases, commitments, sales orders or purchaseorders.  Any transfer or assignment toBuyer of any property or property rights or any contract or agreement or permitwhich shall require the consent or approval of any third party shall be madesubject to such consent or approval being obtained.

 

2.6           Deliveryof Updated Schedules.  Seller shalldeliver updated, complete and accurate Schedules listing all Outstanding AccountsReceivable, Inventory, Purchase Orders, Customer Orders and AssumedAccounts Payable, all as of the Closing Date, within fifteen (15) Business Daysfollowing the Closing.

 

**ARTICLE 3.  PURCHASE PRICE; PAYMENT; ALLOCATION**

 

3.1           PurchasePrice.  The purchase price for thesale, assignment, transfer and conveyance of the Purchased Assets to Buyerhereunder shall be Sixteen Million Five Hundred Thousand Dollars ($16,500,000)(the “**Purchase Price**”) (asmay be adjusted following the Closing pursuant to **Section 3.4** below). At Closing, Seller shall pay the Purchase Price, less the depositof **[***]** Dollars previously paidby Seller to Buyer, by wire transfer of immediately available funds to Seller’saccount set forth in **Schedule 3.1**hereto

 

3.2           Allocationof Purchase Price.  Within thirty(30) days following the Closing, Buyer shall prepare and deliver to Seller aschedule on IRS Form 8594 in accordance with the Code allocating thePurchase Price among the Purchased Assets (the “**Allocation Schedule**”). If Seller approves of Buyer’s draft Allocation Schedule then Seller andBuyer: (i) shall be bound by the allocation contained in AllocationSchedule for purposes of determining any and all consequences with respect toTaxes arising in connection with the transactions contemplated herein; (ii) shallprepare and file all Tax returns to be filed with any Tax authority withrespect to Taxes arising in connection with the transactions contemplatedherein in a manner consistent with the Allocation Schedule; and (iii) shalltake no position inconsistent with the Allocation Schedule on any Tax return,any discussion with or proceeding before any Tax authority, or otherwise.  In the event that the Allocation Schedule isdisputed by any Tax authority, the party receiving notice of such dispute shallpromptly notify the other party thereof and both parties shall defend theAllocation Schedule in all reasonable ways. If, however, Seller does not approve Buyer’s draft Allocation Schedulethen Seller acknowledges and agrees that Buyer will nonetheless file theAllocation Schedule and Seller may take a tax position inconsistent with Buyer’sAllocation Schedule provided that Seller can justify such position tothe applicable taxing authority.

 

3.3           TransactionCosts.  All Transfer Taxes shall bepaid by Seller, and Seller shall, at its own expense, properly file on a timelybasis all necessary Tax Returns, reports, forms, and other documentation withrespect to any Transfer Taxes, and provide to Buyer evidence of payment of allTransfer Taxes.

 

3.4           Adjustmentto Purchase Price.  (a)  Nolater than sixty (60) days after the Closing Date, Buyer will prepare anddeliver to Seller a working capital statement (the “**Closing Working Capital Statement**”)setting forth the Working Capital as of the close of business on 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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theClosing Date (the “**Closing Working Capital**”).  The Closing Working Capital Statement shallbe prepared in accordance with GAAP. Buyer will make available to Seller, upon request, all work papers andback-up materials used in the preparation of the Closing Working CapitalStatement and the calculation of the Closing Working Capital.

 

(b)           Upon receipt of the Closing WorkingCapital Statement and the calculation of Closing Working Capital, Seller shallhave fifteen (15) days thereafter to review the Closing Working CapitalStatement and the calculation of Closing Working Capital (the “**Review Period**”).  Seller shall be deemed to have accepted theClosing Working Capital Statement and the calculation of Closing WorkingCapital upon the expiration of the Review Period, unless, prior to theexpiration of the Review Period, Seller shall have delivered to Buyer writtennotice and a detailed written explanation (together with all work papers and backupmaterials relating thereto) of the specific items in the Closing WorkingCapital Statement and in the calculation of Closing Working Capital that Sellerdisputes, in which case the Closing Working Capital Statement and thecalculation of Closing Working Capital, to the extent not affected by thedisputed items, shall be deemed to be accepted and any such undisputed portionof the adjustment set forth in **Section 3.4(d) **shallbe paid in accordance with the terms of that section, and the items identifiedby Seller as disputed shall be deemed to be in dispute.  Buyer and Seller will attempt to resolve ingood faith any disputed items during the thirty (30) day period following theend of the Review Period.  Failingresolution of all disputed items within that period, any remaining disputeditems shall be referred to the Independent Accountant, acting as experts inaccounting and not as arbitrators, for final resolution in accordance withGAAP.  Seller and Buyer each agree toexecute, if requested by the Independent Accountant, a reasonable engagementletter.  The determination of theIndependent Accountant shall be set forth in a written report, shall be finaland binding on the Parties and shall not be subject to dispute, appeal,litigation or challenge for any reason. Judgment may be entered to enforce such determination set forth in theIndependent Accountant’s report in any court of competent jurisdiction.  One half of the total cost of determinationby the Independent Accountant shall be paid by Seller and one half by Buyer.

 

(c)           Buyer and Seller agree that theywill, and agree to cause their respective independent accountants to reasonablycooperate and assist in the conduct of the audits and reviews referred to inthis **Section 3.4**,including the making available to the extent reasonably necessary of books,records, work papers and personnel.

 

(d)           If the Closing Working Capital, asfinally determined, is greater than the sum of the Target Working Capital plusthe Collar Amount (the amount over such sum being defined as the “**Excess**”), then the Buyer will pay tothe Seller the amount of such Excess.  Ifthe Closing Working Capital, as finally determined, is less than the TargetWorking Capital minus the Collar Amount (the amount under suchdifference being defined as the “**Deficiency**”),then the Seller will pay to the Buyer the amount of such Deficiency.  If a payment is due to either the Buyer orthe Seller pursuant to this **Section 3.4**,such payment will be made within five (5) Business Days after the finaldetermination of the Closing Working Capital, by wire transfer of immediatelyavailable funds to an account designed in writing by the applicable payee.

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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**ARTICLE 4.  CLOSING**

 

4.1           TheClosing.  The consummation of thetransactions contemplated herein (the “**Closing**”)shall be held at the offices of Seller, at 10:00 am (EDT) on or before May 24,2010 or at such other place, time and date as shall be agreed between Buyer andSeller.  The date of the Closing is referredto herein as the “**Closing Date”. **The Closing shall be deemed to occur andbe effective as of the close of the Business on the Closing Date.

 

4.2           Deliveriesof Seller.  At the Closing, Sellershall deliver or cause to be delivered the following to Buyer:

 

(a)           duly executed and acknowledged billsof sale, endorsements, assignments and other good and sufficient instruments ofconveyance and transfer, in form and substance satisfactory to Buyer, totransfer the Purchased Assets to Buyer free and clear of all Liens;

 

(b)           duly executed and acknowledged billsof sale, endorsements, assignments and other good and sufficient instruments ofconveyance and transfer, in form and substance recordable with the appropriateregistrar and satisfactory to Buyer, to transfer the Intellectual Property toBuyer free and clear of all Liens;

 

(c)           duly executed assignments andassumptions in order to transfer the Assumed Contracts and Assumed Liabilitiesto Buyer (the “**Assignment and AssumptionAgreements**”);

 

(d)           a Transition Services Agreementexecuted by Seller;

 

(e)           a Contract Manufacturing Agreementexecuted by Seller;

 

(f)            a certificate of a duly authorizedofficer of Seller, dated the Closing Date, certifying: (i) the resolutionsattached thereto are true, correct and complete copies of the resolutions ofSeller’s board of directors authorizing, adopting and approving the Agreement,the Transaction Documents and the transactions contemplated hereby and thereby;(ii) a certificate of legal existence and good standing of Seller issuedby the Secretary of the State of Delaware and a certificate of good standing asa foreign corporation issued by the Secretary of The Commonwealth ofMassachusetts, in each case dated within twenty (20) days prior to the ClosingDate; and (iii) the incumbency of the person authorized by Seller to signthe Agreement on Seller’s behalf;

 

(g)           a certificate of a duly authorizedofficer of Seller, dated the Closing Date, certifying that originals or trueand correct copies of the Assumed Contracts, Purchase Orders, Customer Orders,Books and Records and Licenses and Permits have previously been provided toBuyer;

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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(h)           releases from security interestsretained by Silicon Valley Bank and PNC Bank, as well as any other consents,approvals or authorizations required in order for Seller to complete thetransactions contemplated hereby; and

 

(i)            such other instruments and documentsas Buyer shall reasonably request for the purpose of consummating thistransaction.

 

4.3           Deliveriesof Buyer.  At the Closing, Buyershall deliver to Seller the following:

 

(a)           the Assignment and AssumptionAgreement executed by Buyer;

 

(b)           the Purchase Price;

 

(c)           the Transition Services Agreementexecuted by Buyer;

 

(d)           the Contract Manufacturing Agreementexecuted by Buyer;

 

(e)           a certificate of a duly authorizedofficer of Buyer, dated the Closing Date, certifying: (i) the resolutionsattached thereto are true, correct and complete copies of the resolutions ofBuyer’s board of directors authorizing, adopting and approving the Agreement,the Transaction Documents and the transactions contemplated hereby and thereby;(ii) a certificate of legal existence and good standing of Buyer issued bythe Secretary of the State of Delaware and a certificate of good standing as aforeign corporation issued by the Secretary of State of North Carolina, in eachcase dated within twenty (20) days prior to the Closing Date; and (iii) theincumbency of the person authorized by Buyer to sign the Agreement on Buyer’sbehalf; and

 

(f)            such other instruments and documents as Seller shall reasonablyrequest for the purpose of consummating this transaction.

 

4.4           Conditionsto Closing.

 

(a)           The obligation of Buyer to effect thetransactions contemplated by this Agreement is subject to the satisfaction (orwritten waiver by Buyer) as of the Closing of the following conditions:

 

(i)             Representationsand Warranties; Covenants.  Therepresentations and warranties of Seller made in this Agreement shall be trueand correct as of the date hereof and as of the time of the Closing as thoughmade of such time, except to the extent such representations andwarranties expressly relate to an earlier date (in which case suchrepresentations and warranties shall be true and correct as of such earlierdate).  Seller shall have performed orcomplied in all material respects with all obligations and covenants requiredby this Agreement to be performed or complied with by Seller by the time of theClosing.  Seller shall have 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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delivered to Buyer a certificate dated the Closing Date and signed byan authorized officer of Seller confirming the foregoing.

 

(ii)            NoInjunctions or Restraints.  No law,statute, rule, regulation, executive order, decree, temporary restrainingorder, preliminary or permanent injunction or other order enacted, entered,promulgated, enforced or issued by any Governmental Authority, or other legalrestraint or prohibition shall be in effect preventing any Transaction Documentor the transactions contemplated thereby.

 

(iii)           ClosingDeliveries.  Seller shall havedelivered or caused to be delivered all of the documents and instrumentsrequired by Section 4.2 to Buyer.

 

(b)           The obligation of Seller to effectthe transactions contemplated by this Agreement is subject to the satisfaction(or written waiver by Seller) as of the Closing of the following conditions:

 

(i)             Representationsand Warranties; Covenants.  Therepresentations and warranties of Buyer made in this Agreement shall be trueand correct as of the date hereof and as of the time of the Closing as thoughmade as of such time, except to the extent such representations andwarranties expressly relate to an earlier date (in which case suchrepresentations and warranties shall be true and correct as of such earlierdate).  Buyer shall have performed orcomplied in all material respects with all obligations and covenants requiredby this Agreement to be performed or complied with by Buyer by the time of theClosing.  Buyer shall have delivered toSeller a certificate dated the Closing Date and signed by an authorized officerof Buyer confirming the foregoing.

 

(ii)            NoInjunction or Restraints.  Nostatute, rule, regulation, executive order, decree, temporary restrainingorder, preliminary or permanent injunction or other order enacted, entered,promulgated, enforced or issued by any Governmental Authority, or other legalrestraint or prohibition shall be in effect preventing any Transaction Documentor the transactions contemplated thereby.

 

(iii)           ClosingDeliveries.  Buyer shall havedelivered or caused to be delivered all of the documents and instrumentsrequired by Section 4.3 to Seller.

 

(iv)           Theconsent of Silicon Valley Bank to the sale of the Purchased Assets to Buyershall remain in full force and effect as of the Closing.

 

4.5           FurtherAssurances.  From time to time afterthe Closing, at Buyer’s expense but without further consideration, Seller shallexecute and deliver, and shall cause their Affiliates to execute and deliver asnecessary, such other instruments of conveyance, assignment, transfer anddelivery, and take such other action as Buyer reasonably may request in ordermore effectively to: (i) transfer, convey, assign and deliver to Buyer,and to place Buyer in possession or control of, any of the Purchased Assets; or(ii) enable Buyer to exercise and enjoy all rights and benefits 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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ofSeller with respect thereto.  From timeto time after the Closing, at Seller’s expense but without furtherconsideration, Buyer shall execute and deliver such additional agreements ofassumption and shall take such other actions as Seller reasonably may requestin order to assure the assumption by Buyer of the Assumed Liabilities.

 

**ARTICLE 5.  REPRESENTATIONS AND WARRANTIES OF SELLER**

 

TheSeller hereby represents and warrants to the Buyer that the statementscontained in this **Article V**are correct and complete as of the Closing Date hereof, except asotherwise set forth in the schedules prepared by the Seller and attached tothis Agreement (the “**Schedules**”),which Schedules are incorporated herein by reference.  The Schedules shall be arranged in sectionscorresponding to the numbered and lettered Sections of this **Article V**, and the disclosuresof any section of the Schedules shall provide information regarding thecorresponding numbered and lettered sections of this **Article V**,unless and to the extent that cross references to other Sections are setforth in the Schedules.

 

5.1           Organizationand Qualifications.   Seller is a corporation duly organized,validly existing and in good standing under the laws of the State of Delaware,and has all requisite power and authority to carry on the Business as nowconducted, to enter into this Agreement and each of the Transaction Documentsto which it is a party, and to carry out its obligations hereunder andthereunder.  Seller is duly qualified todo business and is in good standing as a foreign corporation in eachjurisdiction in which the operation of the Business makes such qualificationnecessary, except to the extent that the failure to be so qualified would notmaterially and adversely affect (i) the ability of Seller to carry out itsobligations under, or to consummate the transactions contemplated by, thisAgreement, or (ii) the ability of Seller to conduct the Business prior tothe Closing Date.

 

5.2           Authority;Enforceability.  The execution and delivery of this Agreement andeach of the other Transaction Documents to which Seller is a party, and theconsummation of the transactions contemplated hereby and thereby, have beenduly and validly authorized by all necessary action on the part of Seller andits board of directors, and this Agreement and each of such other TransactionDocuments to which Seller is a party constitute the legal, valid and bindingobligations of Seller, enforceable against it in accordance with theirrespective terms.

 

5.3           NoViolation.   Except as set forth in **Schedule 5.3** the execution and delivery of this Agreement,any Transaction Document and the consummation of the transactions contemplatedhereby or thereby will not conflict with or result in any violation of ordefault under (with or without notice or lapse of time, or both) or give riseto a right of any party to accelerate, terminate, modify or cancel (any suchevent, a “**Conflict**”) under (i) anymaterial indenture, contract, lease, sublease, loan agreement, note or otherobligation or liability to which Seller is a party or by which it is bound orto which any of its assets is subject; (ii) under any provision of theArticles of Incorporation or Bylaws (or other charter documents) of Seller, orany material restriction, Lien, bond, guarantee, license, permit, agreement,understanding, arrangement, commitment, indenture, contract, lease, sublease,loan agreement, note or other obligation or liability, whether oral or written,to which it is a party or by which it is bound or to 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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whichany of its assets is subject or result in the creation of any Lien orencumbrance upon any of said assets; or (iii) violate or result in abreach of or constitute a default under any Applicable Law to which Seller orthe Business is subject or by which any of the Purchased Assets are bound,except in each case to the extent that any such Conflict would not materiallyand adversely affect (a) the ability of Seller to carry out itsobligations under, or to consummate the transactions contemplated by, thisAgreement, or (b) the ability of Buyer to conduct the Business after theClosing Date.

 

5.4           NoConsents.   Except as set forth in **Schedule 5.4**, no consent, waiver, approval, authorizationor permit of, or notice to, any Governmental Authority, or any third-party, isrequired to be obtained or given by Seller in connection with the execution,delivery or performance of this Agreement or any other Transaction Document, orthe consummation of the transactions contemplated hereby or thereby by Seller.

 

5.5           Titleto and Condition of Purchased Assets; Sufficiency of Assets.  (a)  Seller has good and valid title tothe Purchased Assets, free and clear of all Liens, other than the Lien in favorof Silicon Valley Bank to be released as of the Closing.  All of the Equipment, Inventory andother tangible property included in the Purchased Assets are usable in theordinary course of the Business for the purposes and uses intended and are ingood working condition, reasonable and ordinary wear and tear excepted.  Upon the consummation of the transactions contemplatedin this Agreement at the Closing, Buyer will acquire good and marketable titleto the Purchased Assets, free and clear of all Liens.

 

(b)           Except as set forthin **Section 2.2** and**Schedule 5.5(b)**, the PurchasedAssets constitute all of the assets, properties, rights and interests(including all personal property and tangible and Intangible Property)necessary for the conduct of the Business as it is being currently, and has inthe past been, conducted.

 

5.6           Taxes.  Seller has duly prepared and timely filed allTax Returns with respect to the Business and required to be filed by it and haspaid, or made adequate provision for the payment of, all Taxes, assessments,fees and charges relating to the Business shown on such returns or onassessments received by Seller.  No Claimrelating to the Business has ever been made or is expected to be made by anyGovernmental Authority in a jurisdiction where Seller does not file Tax Returnsthat it is or may be subject to taxation by that jurisdiction.  Seller has made all withholding of Taxrelating to the Business required to be made under all applicable federal,state and local tax laws and regulations, and has made all payments to theInternal Revenue Service and such other tax authorities as are required withrespect to such withholdings.  There areno outstanding or pending Claims, deficiencies or assessments against Sellerrelating to the Business for sales taxes or any other Taxes, or interest orpenalties with respect thereto, with respect to any taxable period of Seller.

 

5.7           Contracts.  (a)  **Schedule 2.1(g) **contains an accurate and completelist, and Seller has delivered to Buyer accurate and complete copies, of theAssumed Contracts.  **Schedule 2.1(k) **contains, as ofthe date specified in **Section 2.1(k)**,but to be updated as of the Closing Date, an accurate and complete list, andSeller has delivered to Buyer accurate and complete 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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copies,of the Purchase Orders.  **Schedule 2.1(l) **contains as of thedate specified in **Section 2.1(l) **butto be updated as of the Closing Date, an accurate and complete list, and Sellerhas delivered to Buyer accurate and complete copies, of the Customer Orders.

 

(b)           The Assumed Contracts and theExcluded Contracts constitute all contracts, leases, licenses, agreements,instruments, purchase orders, open bids, arrangements and other undertakings orcommitments that are related to the Business to which Seller is a party orsubject.  Each Assumed Contract is thevalid and binding obligation of Seller and, to the best knowledge of Seller,each of the other parties thereto, and enforceable in accordance with itsterms.  Except as set forth in **Schedule 5.7(b)**, each Assumed Contractis in full force and effect, will continue in full force and effect after theClosing and may be transferred by Seller to Buyer pursuant to this Agreement,in each case without breaching the terms thereof or resulting in the forfeitureor impairment of any rights thereunder, without the consent, approval or act of,or making of any filing with, any third party. Seller is not (with or without the lapse of time or the giving ofnotice, or both) in breach or default in any material respect of any AssumedContract and, to the best knowledge of Seller, no other party to any AssumedContract is (with or without the lapse of time or the giving of notice, orboth) in breach or default in any material respect of any such AssumedContract.  Seller has not received noticeand does not have any knowledge that any party to any Assumed Contract intendsto modify, cancel or terminate such Assumed Contract or to exercise or notexercise any option under any such Assumed Contract.

 

5.8           IntellectualProperty.  (a)  **Schedule 2.1(a) **sets forth a true,accurate and complete list of all Intellectual Property presently owned orpossessed by Seller and used in connection with the Business, and all licensesof any of the foregoing granted to or by Seller.  All of the Intellectual Property is in goodstanding and Seller has timely paid, when due, all maintenance and other filingfees required in order to maintain such Intellectual Property in good standingwith the necessary registrars thereof. None of the Intellectual Property is subject to any pending or, to thebest knowledge of Seller, threatened challenge, and there are no Claims pendingor, to the best knowledge of Seller, threatened against Seller with respect toany of the foregoing or with respect to any alleged infringement thereof or ofany similar rights of any other person.

 

(b)           Seller has not entered into anyagreement to indemnify any other person against any charge of infringement ofany Intellectual Property, other than indemnification provisions contained incontracts with customers of the Business or license agreements arising in theordinary course of business.

 

(c)           Seller has obtained valid writtenassignments from all consultants, contractors and employees who contributed tothe creation or development of Intellectual Property of the rights to suchcontributions that Seller does not already own by operation of law.

 

(d)           To the extent any IntellectualProperty is or has been used under license in the Business, no notice of amaterial default of such license has been sent or received by Seller whichdefault remains uncured, and the execution, delivery or performance of Seller’sobligations hereunder and the Transaction Documents will not result in such adefault.  Each such license agreement isa legal, valid and binding obligation of Seller and the relevant other 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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partiesthereto, enforceable in accordance with the terms thereof and the transactionscontemplated by this Agreement will not breach the terms thereof.

 

(e)           Seller owns or is licensed to use theIntellectual Property free and clear of any Liens, without obligation to payany royalty or any other fees with respect thereto.

 

(f)            Seller has not received any noticeof any Claim, or a threat of any Claim, from any third party, and no thirdparty Claims are pending: (i) challenging the right of Seller to use anyIntellectual Property or alleging any violation, infringement, misuse ormisappropriation by Seller of Intellectual Property or indicating that thefailure to take a license would result in any such Claim, or (ii) challengingthe ownership rights of Seller in any Intellectual Property or asserting anyopposition, interference, invalidity, termination, abandonment,unenforceability, or other infirmity of any Intellectual Property.

 

(g)           Except as set forth on **Schedule 5.8(g)**, Seller has notmade any Claim of a violation, infringement, misuse or misappropriation by anythird party (including any employee or former employee of the Business) of itsrights to, or in connection with, any Intellectual Property, which Claim is pending.

 

(h)           Seller has published internalpolicies and taken all other necessary and reasonable steps to protect andpreserve the confidentiality of all the Business’s trade secrets and otherproprietary and confidential information including know-how, source codes,databases, data collections, customer lists, schematics, ideas, algorithms andprocesses and all disclosure of such information to, and use by, any thirdparty (other than (i) to competent regulators, accountants and counsel, ineach instance acting in their professional capacities, or (ii) pursuant toan applicable order) has been pursuant to the terms of a writtenconfidentiality agreement between such third party and Seller.  Seller has not breached any agreements ofnon-disclosure or confidentiality relating to the Business, and is notcurrently alleged or claimed to have done so.

 

5.9           ComplianceWith Laws.  (a)  Seller holdsall Licenses and Permits, approvals, and authorizations that are necessary forthe lawful conduct of the Business, as now conducted, and has complied in allmaterial respects with all Applicable Laws with respect to the conduct of theBusiness, as now conducted, including, without limitation, all United StatesFood and Drug Administration regulations, rules and guidelines.  All such Licenses and Permits are in fullforce and effect, and Seller has not taken any action or failed to take anyaction which permits, or after notice or lapse of time would permit, therevocation or termination of any of such Licenses and Permits or the impositionof any restrictions thereon.  Noinvestigation, notice of investigation, violation, order, complaint, action orother proceeding is pending or threatened before any Governmental Authority torevoke, refuse to renew or modify any of such Licenses and Permits.

 

(b)           All Products are approved by andmarked with the approval of (where applicable), Conformance European (CE), andCanadian Standards Association (CSA). Additionally, to the extent required by Applicable Law, all Products arein compliance with all Applicable Laws in the countries into which the Productsare sold concerning electrical and emissions standards and restrictions on theuse of certain hazardous substances in electrical and electronic equipment,including, without limitation, and the Waste Electrical and ElectronicEquipment Directive (WEEE).

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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(c)                                  Seller hascomplied in all material respects with U.S. export control and import laws andregulations relating to the Business.  NoProduct or related technical data or service provided, made, sold ordistributed by Seller now or during the last five (5) years that wasexported, re-exported or transshipped (i) outside of the United States ofAmerica required a license or authorization for export, re-export ortransshipment from the U.S. government, or (ii) from a country other thanthe United States of America required a license for export, re-export ortransshipment from any governmental authority of such country.  No Product or related technical data orservice provided, made, sold, distributed or owned by Seller now or during thelast five (5) years has been disclosed, disseminated or released to aforeign national in the United States in a manner that required Seller toobtain a license for deemed export from the United States of America withoutSeller obtaining such license for deemed export from the United States ofAmerica.

 

5.10                           Litigation.  There areno Claims suits, actions, arbitrations, or legal, administrative or otherproceedings or governmental investigations currently pending, nor have any suchmatters been pending during the last five (5) years or, to the bestknowledge of Seller, threatened against or affecting Seller relating to theBusiness, the Products, the Purchased Assets or Assumed Liabilities, or whichseek to enjoin or otherwise interfere with the consummation of the transactionscontemplated by this Agreement or any of the other Transaction Documents towhich Seller is a party, or the performance by Seller of its obligationshereunder or thereunder, nor, to the best knowledge of Seller, does there exista valid basis for any such Claims suit, action, arbitration, legal,administrative or other proceeding or governmental investigation.  There is no outstanding judgment, decree,injunction or order of any court, administrative agency or other instrumentalityor arbitrator against Seller relating to the Business, the Products, thePurchased Assets or Assumed Liabilities, or affecting the transactionscontemplated by this Agreement or any of the other Transaction Documents towhich Seller is a party.

 

5.11                           Customer and Supplier List.  **Schedule 2.1(c) **sets forth acomplete and accurate Customer and Supplier List as of the Closing Date, asdescribed and for the countries specified in **Section 2.1(c)**. All sales and purchases made by Seller in connection with the Businessduring the past five (5) years prior to the Closing Date have been made inthe ordinary course of business in accordance with past practices.  There has been no cancellation of anypurchase order by any customer, or sales order by any supplier, of the Businesslisted on **Schedule 2.1(c) **hereto,during the twelve (12) months ended as of the Closing Date.

 

5.12                           Inventory.  TheInventory consists of a quality and quantity usable and, with respect tofinished goods, saleable, in the ordinary course of business of the Business,and in the amounts necessary to satisfy the Customer Orders as of the ClosingDate.  The Inventory does not include anyinventory, raw materials, finished goods, supplies or parts that are not ownedby Seller, and the Inventory does not consist of, or relate to, any productsother than the Products.  All Inventorywas purchased in the ordinary course of business of Seller at a cost notexceeding market prices prevailing at the time of purchase.  The quantities of each item of Inventories(whether raw materials, works in process or finished goods) are not excessivebut are reasonable in the present circumstances of Seller.  The quantity and valuation of the Inventoryas of the 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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ClosingDate was determined from the books and records of the Business on a first-in,first-out basis in accordance with GAAP consistently applied with Seller’s pastpractices.

 

5.13                           Product Issues.  (a) Seller has made available for inspection by Buyer the Products and all design,development, testing and engineering files with respect to the design anddevelopment of the Products.

 

(b)                                 To the best of the Seller’s knowledge, thereis no defect in any Product (or design thereof), including, without limitation,any defect that would be reasonably likely to result in injury to Persons,death or property damage.  There is nopending or, to the best of the Seller’s knowledge, threatened Claim, action,suit, inquiry, proceeding, or investigation by any Person or GovernmentalAgency in which a Product is alleged to have a defect, deficiency, or impurityof any kind, whether in design, manufacture, processing, or otherwise.  Except as set forth in **Schedule 5.13(b)**, Seller has notreceived any consumer complaints or reports of adverse events associated withthe Products (written or otherwise). There have been no insurance Claims (including product liability Claims)brought with respect to the Products.

 

(c)                                  No Product has ever been the subject of: (i) arecall by the U.S. Food and Drug Administration or the US Consumer ProtectionSafety Commission, (ii) a market withdrawal, (iii) warning letter orsome other form of enforcement action by the U.S. Food and Drug Administration;or (iv) a Claim or some other form of industry complaint.  To the best of the Seller’s knowledge, andsubject to the receipt of necessary regulatory approvals for sales in countriesoutside the United States, there is no reason why the Products cannot bemarketed and sold throughout the world.

 

(d)                                 The raw materials and component parts neededto manufacture the Products are available to Buyer from vendors on commerciallyreasonable terms.  There are nowarranties express or implied, written or oral, with respect to the Products,other than standard Product warranties offered to customers in the ordinarycourse of business copies of which are set forth in **Schedule 5.13(d)**, and there are nomaterial pending or, to the best knowledge of Seller, threatened Claims withrespect to any such warranty.

 

5.14                           Accounts Receivable.  AllOutstanding Accounts Receivable are valid, genuine, arise from sales made inthe ordinary course and are fully collectible in the aggregate amount thereofwithin the payment terms originally provided by Buyer to the obligor of eachsuch Outstanding Account Receivable.

 

5.15                           Condition of Equipment.  TheEquipment is in good working order and condition, subject to normal wear andtear, and has no defects which would materially interfere therewith, and aresufficient to conduct the Business as presently conducted or as proposed to beconducted by Buyer after the Closing Date.

 

5.16                           No Material Adverse Change.  SinceDecember 31, 2009, there has not been any material adverse change in,relating to or affecting the Business, condition (financial or otherwise),rights, properties, assets or prospects of the Business, and Seller hasconducted the 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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Businessonly in the ordinary course consistent with past custom and practice.

 

5.17                           Solvency.  Seller isnot now insolvent and will not be rendered insolvent by the transactionscontemplated hereby.  As used in thissection, “insolvent” means that the sum of the debts and other probableliabilities of Seller exceeds the present fair saleable value of Seller’sassets.  Immediately after giving effectto the consummation of the transactions contemplated hereby: (i) Sellerwill be able to pay its liabilities as they become due in the usual course ofits business; and (ii) taking into account all pending and threatenedlitigation, final judgments against Seller in actions for money damages are notreasonably anticipated to be rendered at a time when, or in amounts such that,Seller will be unable to satisfy any such judgments promptly in accordance withtheir terms (taking into account the maximum probable amount of such judgmentsin any such actions and the earliest reasonable time at which such judgmentsmight be rendered) as well as all other obligations of Seller.  The cash available to Seller, after takinginto account all other anticipated uses of the cash, will be sufficient to payall such debts and judgments promptly in accordance with their terms.

 

5.18                           Insurance.  A list ofall product liability insurance policies (together with all riders andamendments thereto) of Seller currently in effect with respect to the Business,together with the names of the insurance companies issuing such policies aswell as the per occurrence and aggregate coverage amounts of each policy, isset forth on **Schedule 5.18**.  All of the insurance policies listed on **Schedule 5.18** are valid and enforceablein accordance with their terms and in full force and effect.  Such policies carry limits of liability andcoverage for such risks and liabilities as are customary for companies engagedin the same or similar business activities as the Business.  Except as set forth on **Schedule 5.18**, Seller has not receivedany written notice of any cancellation, modification, change in premium ordenial of renewal in connection with any of the insurance policies listed on **Schedule 5.18** or any renewal of any ofthem.  Except as set forth on **Schedule 5.18**, no Claims with respectto the Business or the Products have been made or are pending on such insurancepolicies in the last five (5) years.

 

5.19                           No Broker.  No broker,finder or investment banker is entitled to any brokerage, finder’s or other feeor commission in connection with the transactions contemplated herein basedupon arrangements made by or on behalf of Seller.

 

5.20                           Disclosure.  Seller hasnot failed to disclose to Buyer any material facts related to the PurchasedAssets, the Products, the Business and Assumed Liabilities.  No representation or warranty by Sellercontained in this Agreement and no statement contained in any document(including, without limitation, the disclosure schedules), certificate, orother writing furnished or to be furnished by Seller to Buyer or any of itsrepresentatives pursuant to the provisions hereof or in connection with thetransactions contemplated hereby, contains or will contain any untrue statementof a material fact or omits or will omit to state any material fact necessary,in light of the circumstances under which it was made, in order to make thestatements herein or therein not misleading.

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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**ARTICLE 6.  REPRESENTATIONS AND WARRANTIES OF BUYER**

 

Buyerrepresents and warrants to Seller as follows:

 

6.1                                 Organization.   Buyer is a limited liability companyduly organized, validly existing and in good standing under the laws of theState of Delaware, and has all requisite power and authority to own, lease andoperate all of its properties and assets and to carry on its business as nowconducted, to enter into this Agreement and each of the Transaction Documentsto which it is a party, and to carry out its obligations hereunder andthereunder.

 

6.2                                 Authority; Enforceability.   The execution and delivery ofthis Agreement and each of the other Transaction Documents to which Buyer is aparty, and the consummation of the transactions contemplated hereby andthereby, have been duly and validly authorized by all necessary action on thepart of Buyer and its board of directors, and this Agreement and each of suchother Transaction Documents to which Buyer is a party constitute the legal,valid and binding obligations of Buyer, enforceable against it in accordancewith their respective terms.

 

6.3                                 No Violation.   Neither the execution and delivery ofthis Agreement, the Transaction Documents nor the consummation of thetransactions contemplated hereby or thereby will; (i) result in theacceleration of, or the creation in any party of any right to accelerate,terminate, modify or cancel any material indenture, contract, lease, sublease,loan agreement, note or other obligation or liability to which Buyer is a partyor by which it is bound or to which any of its assets is subject; (ii) conflictwith or result in a breach of or constitute a default under any provision ofthe Articles of Association (or other charter documents) of Buyer, or a defaultunder or violation of any material restriction, Lien, bond, guarantee, license,permit, agreement, understanding, arrangement, commitment, indenture, contract,lease, sublease, loan agreement, note or other obligation or liability, whetheroral or written, to which it is a party or by which it is bound or to which anyof its assets is subject or result in the creation of any Lien or encumbranceupon any of said assets; or (iii) violate or result in a breach of orconstitute a default under any Applicable Law to which Buyer is subject.

 

6.4                                 No Consents.   No consent of, or notice to, anyfederal, state or local authority, or any third party or entity, is required tobe obtained or given by Buyer in connection with the execution, delivery orperformance of this Agreement or any other agreement or document to beexecuted, delivered or performed hereunder by Buyer in connection herewith.

 

6.5                                 Brokers.** **No broker, finder or investmentbanker is entitled to any brokerage, finder’s or other fee or commission inconnection with the transactions contemplated herein based upon arrangementsmade by or on behalf of Buyer.

 

**ARTICLE 7.  COVENANTS & AGREEMENTS**

 

7.1                                 Employee Matters.  (a) The parties acknowledge that, in connection with the sale and transferof the Business hereunder, Buyer shall extend offers of employment, conditionalupon the Closing, to each of Seller’s current employees set forth on **Schedule 7.1(a) **(the “**Business Employees**”) concurrently withthe execution of this Agreement.  Suchoffers of employment shall be substantially equivalent to the proposed termsset forth 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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in **Schedule7.1(a)**, and must be accepted or rejected by the respectiveBusiness Employee on or before the Closing Date.  The Business Employees who agree to accept employment with Buyer are referred toherein as the “**TransferredEmployees**.”  In allrespects Transferred Employees shall be employees “at will” of Buyer. Seller shallterminate the employment of any Business Employee who does become a TransferredEmployee, and, additionally, shall terminate the employment of any BusinessEmployee who rejects Biotage’s offer without the right to severance fromCaliper.  **[***]**.  Each TransferredEmployee will be given credit by Buyer for his or her years of service withSeller.  Additionally, Buyer shall payseverance, in an amount set forth in **Schedule7.1(a)**, to any Transferred Employee who is terminated by Buyerwithout cause prior to the twelve (12) month anniversary of the date of hire ofsuch Transferred Employee by Buyer. Notwithstanding the foregoing, nothing herein shall be construed tolimit the ability of Buyer to terminate any Transferred Employee at any timefor any reason, or to change the terms and conditions of such TransferredEmployee’s employment ; provided that no such change shall abridge the benefitsto be given to Transferred Employees herein .

 

(b)                                 The Seller will be solely responsible for allcompensation (including bonuses, out-of-pocket expenses or other incentivecompensation) and benefits (including severance, if any) to all employees ofSeller (including all Transferred Employees) and former employees of the Sellerin respect of all periods in which such employees were employed by Seller(whether prior to or following the Closing) as well as the termination of suchemployees’ employment with Seller (including all Transferred Employees).  The Buyer will be solely responsible for allcompensation and benefits only for those Transferred Employees hired by Buyerand only for the periods following the Transferred Employee’s date of hire byBuyer.

 

7.2                                 Inspection of Documents; Destruction. Seller agrees that all documents that are retained by Seller after theClosing Date and that are related to the Business shall be open for inspection byrepresentatives of Buyer at any time during regular business hours until suchtime as documents are destroyed or possession thereof is given up to Buyer asprovided herein.  For a period ending onthe fourth (4th) anniversary of the Closing Date, Seller shall not destroy orgive up possession of any item referred to in this paragraph without firstoffering to the Buyer the opportunity, at such Buyer’s expense (but without anyother payment), to obtain the same. Thereafter Seller shall be free to dispose of them as it deems fit.

 

7.3                                 Confidentiality.  Selleracknowledges and agrees that irreparable damage would occur in the event anyConfidential Information were disclosed to or utilized on behalf of any Personother than the Buyer. Accordingly, Seller covenants and agrees that it willnot, directly or indirectly, without the prior written consent of Buyer,divulge, use, furnish, disclose or make available any Confidential Informationto any Person (other than Buyer); provided, however, thatConfidential Information shall not be deemed to include information that theSeller can demonstrate: (i) was or becomes generally available to thepublic other than as a result of disclosure by Seller or any of its Affiliates;or (ii) was or becomes available to Seller on a non-confidential basisfrom a source other than Buyer, provided that such source is not knownby Seller to be bound by a confidentiality agreement with respect to suchConfidential Information. 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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Notwithstandingthe foregoing provision of this paragraph, Seller may disclose any ConfidentialInformation to the extent advised by counsel that Seller is legally compelledto do so, provided that prior to making such disclosure, Seller advisesand consults with Buyer regarding such disclosure and provided further thatSeller discloses only that portion of such Confidential Information as islegally required.

 

7.4                                 Noncompetition, Nonsolicitation andNondisparagement.  (a)  Seller acknowledges and agrees thatthe Business is conducted within the United States and throughout the world(the “**Territory**”) and thatthe Business’ reputation and goodwill are an integral part of its successthroughout the Territory.  If Sellerdeprives Buyer of any of the Business’ goodwill or in any manner utilizes itsreputation and goodwill in competition with the Business, Buyer will bedeprived of the benefits it has bargained for pursuant to the TransactionDocuments.  Accordingly, as an inducementfor Buyer to enter into this Agreement, Seller covenants and agrees that duringthe period beginning on the Closing Date and ending on the fifth (5th)anniversary of the Closing Date (the “**RestrictedPeriod**”), Seller or its Affiliates, or any of their respectiveofficers, directors or shareholders, will not, directly or indirectly, investin, own, manage, operate, finance, control, advise, render services (includingemployment or consulting services) to any Person engaged in or planning tobecome engaged in a Competitive Business. For purposes of this **Section 7.4**,a Person shall be deemed to be engaged in a “**Competitive Business**” if such Person or any of such Person’sAffiliates is engaged directly or indirectly in: (A) providing,performing, offering, designing, developing, manufacturing, assembling,promoting, selling, supplying, distributing, reselling, installing, supporting,leasing or subleasing any Products, or (B) any other business or activitythat competes in any material respect with the Products; provided, however,that Buyer acknowledges and agrees that Seller’s development, manufacture,marketing and sale of plate-based solid phase extraction instruments, such asSeller’s existing Sciclone® and Zephyr® instruments, shall not be deemed to bea Competitive Business for purposes of this **Section 7.4**. Notwithstanding anything in this **Section 7.4**to the contrary, activities in accordance with the terms of the TransitionServices Agreement and Contract Manufacturing Agreement shall not be deemed tobe a Competitive Business or to otherwise violate the terms of this **Section 7.4**. * *Notwithstandingthe foregoing, Seller and its Affiliates may, without violating this **Section 7.4**, own, as a passiveinvestment, shares of capital stock of a Competitive Business if: (i) suchshares are actively traded on an established national securities market in theUnited States; (ii) the number of shares of such corporation’s capitalstock that are owned beneficially (directly or indirectly) by the Seller andthe number of shares of such corporation’s capital stock that are ownedbeneficially (directly or indirectly) by the Seller’s Affiliates collectivelyrepresent less than one percent of the total number of shares of suchcorporation’s capital stock outstanding.

 

(b)                                 During the Restricted Period, Seller covenantsand agrees that it will not, directly or indirectly: (i) solicit, induceor contact, or attempt to solicit, induce or contact, any Person that is avendor to or a customer of the Business to become a vendor to or a customer ofany Competitive Business, (ii) recruit, solicit or induce, or attempt torecruit, solicit, or induce, any employee, independent contractor, agent orconsultant of the Buyer or the Business to terminate his or her employment, orotherwise cease any relationship, with the Buyer or the Business; or (iii) solicit,induce or contact, or attempt to solicit, induce or contact any Person to doanything 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’s applicationrequesting confidential treatment under Rule 24b-2 of the SecuritiesExchange Act of 1934, as amended.

 

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from which Seller isrestricted by reason of this **Section 7.4**.  The term “customer” shall include: (i) customersthat have used the products and services of Business within the five (5) yearperiod prior to the Closing Date; and (ii) any prospective customersidentified as such by Seller prior to the Closing Date.  During the Restricted Period, Buyer covenantsand agrees that it will not, directly or indirectly recruit, solicit or induce,or attempt to recruit, solicit, or induce, any employee, independentcontractor, agent or consultant of Seller to terminate his or her employment,or otherwise cease any relationship, with Seller.

 

(c)                                  After the Closing Date, Seller covenants andagrees that it will not make any statement or other communication that impugnsor attacks the reputation or character of the Business or damages the goodwillof the Business, take any action that would interfere with any contractual orcustomer or supplier relationships conveyed to Buyer as part of the PurchasedAssets.

 

(d)                                 From and after the Closing Date Seller shall (i) deliverand/or convey to Buyer any and all inquiries, requests for Products or salesleads received by it as soon as reasonably possible, and (ii) shallcooperate with Buyer in responding to any such requests or inquires.

 

(e)                                  The parties hereto agree that the foregoingcovenants impose a reasonable restraint on Seller or Buyer, as applicable, inlight of the activities and business of the parties on the date of execution ofthis Agreement.  It is expressly agreedthat if any restrictions set forth herein are found by any court to beunreasonable because they are too broad in any respect, then and in each suchcase, the remaining restrictions herein contained shall nevertheless remaineffective, and this Agreement, or any portion thereof, shall be considered tobe amended so as to be considered reasonable and enforceable by such court, andthe court shall specifically have the right to restrict the business,geographical or temporal scope of such restrictions to any portion of thebusiness or geographic areas or time period described above to the extent thecourt deems such restriction to be necessary to cause the covenants to beenforceable, and in such event, the covenants shall be enforced to the extentso permitted.

 

7.5                                 Equitable Relief. Seller acknowledges that the restrictions on its activities under **Sections 7.3** and **7.4** hereof are necessary for thereasonable protection of Buyer and constitute a material inducement to Buyer’sentering into and performing this Agreement. Seller further acknowledges, stipulates and agrees that a breach of anyof such obligations and agreements will result in irreparable harm andcontinuing damage to Buyer for which there will be no adequate remedy at lawand further agrees that in the event of any breach of said obligations andagreements, Buyer and its successors and assigns will be entitled to injunctiverelief and to such other relief as is proper under the circumstances.

 

7.6                                 Public Announcement. Seller and Buyer agree that, upon the execution of this Agreement byboth parties, they shall each individually issue an announcement of Buyer’spurchase of the Purchased Assets from Seller. Seller and Buyer will consult with each other before issuing any otherannouncements, and will provide each other the opportunity to review andcomment upon, any press release or other public statements (or relevantportions thereof), except as may be required by Applicable Law, court processor by obligations pursuant to any 

 

Portions of this Exhibit were omitted and havebeen filed separately with the Secretary of the Commission pursuant to theRegistrant’s application requesting confidential treatment underRule 24b-2 of the Securities Exchange Act of 1934, as amended.

 

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listingagreement with any national securities exchange.  Buyer acknowledges that Seller intends tofile a redacted version of this Agreement with the Securities and ExchangeCommission pursuant to a confidential treatment request.  Seller will give Buyer a reasonable opportunityto review and comment on any confidential treatment request proposed to besubmitted by Seller to the Securities and Exchange Commission, and Seller willincorporate any reasonable requests by Buyer with respect thereto.

 

7.7                                 Transition Services Agreement. Following Closing, Seller shall provide Buyer with sales support,financial accounting services and other agreed upon transition servicespursuant to the transition services agreement in the form attached hereto as **Exhibit A** (the “**Transition Services Agreement**”) whichshall be executed on the Closing Date.

 

7.8                                 Contract Manufacturing Agreement. Following Closing, Seller shall manufacture the Products for Buyerpursuant to the contract manufacturing agreement in the form attached hereto as**Exhibit B** (the “**Contract Manufacturing Agreement**”).

 

7.9                                 Transition License Grant. Following the Closing the Buyer may use, in the same manner that Sellerhad used in recent historical practice prior to Closing, all product markingand packaging, that, in each case as of the Closing, utilizes or otherwiseincorporates any trademark, trade name, logo or name of Seller (the “**Seller Marks**”), for a period not toexceed six (6) months from the Closing Date with respect to all packagingand other consumables included in the Inventory which use the Seller Marks; provided,however, that Buyer shall be entitled to sell Inventory in existence at the endof such six (6) month period that contains any Seller Marks.  Notwithstanding the foregoing, nothing hereinshall permit the Buyer to prepare, or cause to be prepared, any new products,consumables or signage that use the Seller Marks following the Closing Date.

 

7.10                           New Product Approvals. Seller shall deliver to Buyer, on or before May 31, 2010 for eachcurrent Product of the Business, new approvals of Conformance European (CE),Underwriters Laboratory (UL) and Canadian Standards Association (CSA).

 

7.11                           Seller Warranty Obligations.  Inthe event that any customer of the Business makes a warranty claim with respectto a Product sold prior to the Closing, other than any Product for which Buyerhas assumed the warranty obligation pursuant to **Sections 2.3(b) **or **2.3(c)**, then Seller shall, at its sole cost and expense,diligently and in a commercially reasonable manner perform the requiredwarranty repairs or replace the defective Products, provided, however,prior to performing any warranty work Seller shall provide Buyer with writtennotice of all warranty requests (which such notice shall identify the customerand the nature of the requested warranty work) and thereafter Seller shallinclude Buyer in all correspondence with such customer concerning the requestedwarranty work and Buyer may otherwise contact such customer directly withrespect to the Business, including, without limitation, the requested warrantywork.

 

7.12                           Computer with Acquired Source Code. Within sixty (60) days following the Closing, Seller shall deliver toBuyer a computer with relevant compilers to permit Buyer to 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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buildbinary codes of any and all source code Buyer acquires hereunder.

 

7.13                           Silicon Valley Bank Lien Termination. Within ten (10) days following the Closing, Seller shall file aUCC-3 Financing Statement Amendment with the Delaware Secretary of State’soffice in order to identify that the Purchased Assets are no longer encumberedpursuant to any Liens that Silicon Valley Bank has registered with respect toSeller’s assets.  Seller shall provideBuyer with a copy of the stamped returned UCC-3 filing upon Seller’s receiptthereof.

 

7.14                           Business Distributor Agreements.  (a) Promptly after the execution of this Agreement by both parties:

 

(i)                           Seller and Buyer shall send a letteragreement, in mutually agreed form, to each distributor of the Products listedin Schedule 2.1(g) under the heading “Shared Distributor Contracts”, whichletter agreement shall, upon its countersignature by each such distributor,evidence such distributor’s agreement to continue to distribute Products onbehalf of Buyer following the Closing under its distributor agreement withSeller, and to continue to distribute Seller’s other products on behalf ofSeller following the Closing under its distributor agreement with Seller.  Seller shall use all commercially reasonableefforts to obtain countersigned copies of such letters back from each suchshared distributor prior to the Closing. If any such distributor shall not have returned a countersigned copy ofits letter agreement back to Seller within seven (7) days following theClosing, at Buyer’s request Seller shall assign the underlying distributoragreement to Buyer, and provide notice to such distributor of such assignmentand the removal of Seller’s products other than the Products from the scope ofsuch distributor agreement.

 

(ii)                      Until such time as Sellerand Buyer shall have received a countersigned letter agreement from a shareddistributor pursuant to paragraph (i) above, Seller shall continue toaccept purchase orders from such distributor that conform to the terms of thedistribution agreement with such distributor, and Seller shall be entitled topurchase from Buyer the Products ordered by such distributor, at the same pricethat such Products shall be sold by Seller to such distributor.  Seller shall also take such actions undersuch distribution agreement with respect to the Products as Buyer shallrequest, provided that Seller reasonably determines that the requested actionis consistent with the terms of such distribution agreement.

 

(iii)                   Seller and Buyer shall also send a letter, inmutually agreed form, to each distributor of the Products listed in Schedule2.1(g) under the heading “Assumed Distributor Contracts”, which lettershall inform such distributor of the contemplated sale of the Business toBuyer, and that in connection with the closing of such sale, the distributionagreement between Seller and such distributor will be assigned to Buyer (andwhere appropriate, limited to the Products effective with the closing of thesale of the Business to Buyer).

 

(b)                                   Promptly after the Closing, Seller shall send aletter to its distributor of the 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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Products in Japanproviding the required notice to such distributor that the distributionagreement between Seller and such distributor is being terminated by Seller inaccordance with its terms.  In the eventthat Seller receives any purchase orders from such distributor in Japan priorto the effectiveness of the termination of such distribution agreement, Sellershall be entitled to purchase from Buyer the Products ordered by suchdistributor, at the same price that such Products shall be sold by Seller tosuch distributor.

 

7.15                           Pre-Closing Covenants. Seller covenants and agrees as follows:

 

(a)                                  Access.  From the date hereof until the Closing,Seller shall give Buyer and its representatives, employees, counsel andaccountants reasonable access, during normal business hours and upon reasonableadvance notice, to the Purchased Assets, the Business Employees and all otherinformation and materials pertaining to the Business.

 

(b)                                 Ordinary Conduct.  Fromthe date hereof until the Closing, Seller shall cause the Business to beconducted in the ordinary course in substantially the same manner as currentlyconducted and shall make all reasonable efforts consistent with past practicesto preserve the relationships with customers, suppliers, distributors andothers with whom the Business has a material business relationship.

 

(c)                                  No Solicitation of Proposals.  Priorto the earlier of the Closing and termination of this Agreement, Seller shallnot, directly or indirectly, through any of its Affiliates, officers,directors, employees, financial advisors, agents or other representatives,solicit, initiate, encourage or entertain any inquiries or proposals, discuss,engage in or negotiate with, provide any information or documentation to,consider the merits of any inquiries or proposals from or enter into anyarrangement, understanding or agreement with any Person (other than Buyer)relating to any transaction outside the ordinary course of business involving,in whole or in part, the Business or any Product, or that would otherwisecompromise Buyer’s or Seller’s ability to consummate the transactionscontemplated in this Agreement and the Transaction Documents.

 

(d)                                 Reasonable Best Efforts. Subject to the terms and conditions of this, each party hereto shall useits reasonable best efforts to cause the Closing to occur.

 

**ARTICLE 8.  INDEMNIFICATION**

 

8.1                                 Indemnification by Seller.  (a) Subject to the limitations set forth below, Seller shall indemnify and holdharmless Buyer, its Affiliates and each of their partners, members, managers,officers, directors, employees, agents and representatives and each of theirsuccessors and assigns (each a “**BuyerIndemnified Party**”) at all times from and after the Closing Datefrom and against any and all Losses incurred or sustained by a BuyerIndemnified Party by reason of, or arising out of:

 

(i)                                    any Excluded Liability;

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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(ii)                                 any breach of representation or warranty orthe inaccuracy of any representation or warranty made by Seller in thisAgreement;

 

(iii)                              any breach or nonfulfillment of any covenantor agreement made by Seller in this Agreement; or

 

(iv)                             any Claim, action, suit or proceeding nowpending or instituted against Seller prior to or after the Closing, and anyClaim, action, suit or proceeding instituted against a Buyer Indemnified Partyafter the Closing, arising out of matters, acts or omissions which occurred inconnection with (a) the manufacture, marketing, or sale of the Productsprior to the Closing; and (b) the conduct of the Business by Seller priorto the Closing.

 

8.2                                 Indemnification by the Buyer.  TheBuyer shall indemnify and hold harmless Seller, its shareholders, officers,directors, employees, agents and representatives and each of their heirssuccessors and assigns (the “**SellerIndemnified Parties**”) at all times from and after the ClosingDate from and against any and any Losses incurred or sustained by a SellerIndemnified Party by reason of, or arising out of:

 

(i)                                   the Assumed Liabilities;

 

(ii)                                any breach of representation or warranty orthe inaccuracy of any representation or warranty made by Buyer in thisAgreement;

 

(iii)                             any breach or nonfulfillment of any covenantor agreement made by Buyer in this Agreement; or

 

(iii)                             any Claim, action, suit or proceedinginstituted against Buyer after the Closing, and any Claim, action, suit orproceeding instituted against a Seller Indemnified Party after the Closing,arising out of matters, acts or omissions which occurred in connection with theconduct of the Business by Buyer following the Closing, except withrespect to Products manufactured by Seller pursuant to the ContractManufacturing Agreement.

 

8.3                                 Indemnification Threshold and Cap. Notwithstanding anything contained herein to the contrary, no IndemniteeParty may recover any Losses for any breach of representation or warranty, orthe inaccuracy of any representation or warranty, contained in this Agreement: (i) unlessand until written notice pursuant to Section 8.5 identifying a Lossor Losses in excess of **[***]**Dollars ($**[***]**) in the aggregate(the “**Threshold Amount**”)has or have been delivered by one or more Indemnitee Parties to the IndemnifyingParty, in which case such Indemnitee Party shall only be entitled to recoverthe amount of Losses so identified in excess of the Threshold Amount, or (ii) inany event in excess of **[***]**Dollars ($**[***]**), in theaggregate, as adjusted pursuant to **Section 3.4**hereof (the “**Indemnification Cap**”).

 

8.4                                 Survival.  Theseveral representations and warranties of the parties contained in 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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thisAgreement or in any document delivered pursuant hereto and the parties’ rightto indemnification in accordance with this **Article 8**shall survive the Closing Date and shall remain in full force and effectthereafter for a period of **[***]** (**[***]**) **[***]**after the Closing Date and shall be effective with respect to any inaccuracytherein or breach thereof, notice of which shall have been duly given withinsuch period in accordance with **Section 8.5**hereof after which period they shall terminate and be of no further force oreffect.  Notwithstanding the foregoing, (a) Buyermay give notice of, and make a Claim relating to, and shall be indemnified inconnection with: (i) the breach of the representations and warrantiescontained in **Sections 5.6**(Taxes) at any time prior to sixty (60) days after the expiration of theappropriate statute of limitations and any extensions thereof; and (ii) anybreach of the representations and warranties contained in **Sections 5.1** (Organization andQualifications), and **5.2**(Authority; Enforceability), **5.5(a) **(Titleto and Condition of Purchased Assets; Sufficiency of Assets) and **5.19** (No Broker) hereof, or any Claimof Seller’s fraud, at any time, and (b) Seller may give notice of, andmake a Claim relating to, and shall be indemnified in connection with anybreach of the representations and warranties contained in **Sections 6.1** (Organization), and **6.2** (Authority; Enforceability) hereofat any time.  None of the representationsand warranties set forth in this Agreement, including disclosures set forth inthe Schedules hereto, shall be modified or affected by any investigation at anytime made by or on behalf of any party hereto.

 

8.5                                 Claims for Losses.  If aClaim for Losses is to be made by any party seeking indemnification (an “**Indemnitee Party**”) against the otherparty (an “**Indemnifying Party**”),the Indemnitee Party claiming such indemnification shall give written notice (a“**Claim Notice**”) to theIndemnifying Party as soon as practicable after the Indemnitee Party entitledto indemnification becomes aware of any fact, condition, or event which may giverise to Losses for which indemnification may be sought under this **Article 8**; provided, however,any delay or failure to so notify the Indemnifying Party shall only relieve theIndemnifying Party of its obligations to the extent, if at all, that it is prejudicedby reasons of such delay or failure. After receiving a Claim Notice relating to a Claim by or against anythird party, the Indemnifying Party shall be entitled, at its own cost, riskand expense, upon written notice to the Indemnitee Party: (i) to takecontrol of the defense and investigation of such lawsuit or action, (ii) toemploy and engage attorneys of the Indemnifying Party’s choice to handle anddefend the same, and (iii) to compromise or settle such Claim, whichcompromise or settlement shall be made only with the prior written consent ofthe Indemnitee Party, such consent not to be unreasonably withheld (it beingunderstood that the failure of the Indemnitee Party to give such consent shallnot be considered unreasonable in respect of any compromise or settlement thatdoes not include an unconditional release of such Indemnitee Party from allliabilities arising out of, or that may arise out of, such claim or the basisfor such claim).  In such circumstance inwhich the Indemnifying Party has assumed the defense of such Claim as providedabove, then the Indemnitee Party may, at its own cost, participate in theinvestigation, trial, defense, and settlement of such Claim and any appealarising therefrom.  If the IndemnifyingParty fails to assume the defense of such Claim within twenty (20) BusinessDays after receipt of the Claim Notice, the Indemnitee Party against which suchClaim has been asserted will (upon delivering notice to such effect to theIndemnifying Party) have the right to undertake, at the Indemnifying Party’ssole cost and expense, the defense, compromise or settlement of such claim onbehalf of and for the account 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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andrisk of the Indemnifying Party; provided, however, that such Claimshall not be compromised or settled without the written consent of theIndemnifying Party, which consent shall not be unreasonably withheld (it beingunderstood that the failure of the Indemnifying Party to give such consentshall not be considered unreasonable in respect of any compromise or settlementthat does not include an unconditional release of the Indemnifying Party fromall liabilities arising out of, or that may arise out of, such claim).  In the event that the Indemnitee Partyassumes the defense of the claim, the Indemnitee Party will keep theIndemnifying Party reasonably informed of the progress of any such defense,compromise or settlement.  The partiesshall cooperate in all reasonable respects with each other in theinvestigation, trial, and defense of any such Claim for Losses and any appealarising therefrom.

 

8.6                                 Special Rule for Fraud. Notwithstanding anything in this **Article VIII**or elsewhere in this Agreement to the contrary, in the event a breach or aninaccuracy of a representation or warranty by any party to this Agreementconstitutes fraud or intentional deception, the representation or warranty thathas been breached will survive the execution and delivery of this Agreement andthe consummation of the transactions contemplated hereby (regardless of anyinvestigation made by any party to this Agreement or on its behalf) and willcontinue in full force and effect for perpetuity, and any Losses from any suchbreach will not be subject to any limitation contained in this Agreement,including but not limited to the Threshold Amount and the Indemnification Cap.

 

**ARTICLE 9.  TERMINATION**

 

9.1                                 Termination.  ThisAgreement may be terminated and the transactions contemplated hereby abandonedat any time prior to the Closing by:

 

(a)                                  mutual written consent of Seller and Buyer;

 

(b)                                 Seller if any of the conditions set forth in **Section 4.3** shall have becomeincapable of fulfillment, and shall not have been waived by Seller;

 

(c)                                  Buyer if any of the conditions set forth in **Section 4.2** shall have becomeincapable of fulfillment, and shall not have been waived by Buyer;

 

(d)                                 Seller in the event of any breach by Buyer ofany of its agreements, representations or warranties contained herein and thefailure of Buyer to cure such breach within fifteen (15) days after receipt ofwritten notice from the Seller requesting such breach to be cured;

 

(e)                                  Buyer in the event of any breach by Seller ofany of its agreements, representations or warranties contained herein and thefailure of Seller to cure such breach within fifteen (15) days after receipt ofwritten notice from the Buyer requesting such breach to be cured; or

 

(f)                                    either party hereto, if the Closing does notoccur on or prior to June 14, 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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2010.

 

Termination of thisAgreement shall not be the exclusive remedy, and a party electing to terminatethis Agreement shall be entitled to pursue any and all rights and remediesavailable to it under applicable law or in equity.

 

**ARTICLE 10.  MISCELLANEOUS**

 

10.1                           Merger.  ThisAgreement and the other agreements and documents referred to herein set forththe entire understanding of the parties with respect to the subject matterhereof.  Any previous agreements orunderstandings between the parties regarding such subject matter, including,without limitation, that certain letter of intent dated March 24, 2010,are merged into and superseded by this Agreement.  Without limiting the generality of theforegoing, the only representations and warranties made by the parties heretowith respect to the subject matter hereof are the representations andwarranties contained in this Agreement, the Transaction Documents and anycertificates delivered pursuant hereto or thereto.

 

10.2                           Governing Law.  ThisAgreement shall be construed and enforced in accordance with the laws of TheCommonwealth of Massachusetts applicable to agreements to be executed andperformed wholly within said state.

 

10.3                           Jurisdiction; Venue; Waiver of Jury Trial.  (a) Each of the Parties hereby irrevocably and unconditionally submits, for itselfand/or its property, to the exclusive jurisdiction of any Massachusetts statecourt or federal court of the United States of America sitting in SuffolkCounty, Massachusetts, and any appellate court from any thereof, in any actionor proceeding arising out of or relating to this Agreement or for recognitionor enforcement of any judgment, and each of the parties hereby irrevocably andunconditionally agrees that all claims in respect of any such action orproceeding may be heard and determined in any such Massachusetts state courtor, to the extent permitted by law, in such federal court.  Each of the parties agrees that a finaljudgment in any such action or proceeding shall be conclusive and may beenforced in other jurisdictions by suit on the judgment or in any other mannerprovided by law.

 

(b)                                 Each of the Parties irrevocably andunconditionally waives, to the fullest extent it may legally and effectively doso, any objection that it may now or hereafter have to the laying of venue ofany suit, action or proceeding arising out of or relating to the Agreement inany Massachusetts state or federal court. Each of the Parties irrevocably waives, to the fullest extent permittedby law, the defense of an inconvenient forum to the maintenance of such actionor proceeding in any such court.

 

(c)                                  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLYWAIVES, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL RIGHTTO TRIAL BY JURY IN ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF ORRELATED TO THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS OR THETRANSACTIONS CONTEMPLATED HEREBY 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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OR THEREBY.  EACH OF THE PARTIES TO THIS AGREEMENTACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTERINTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY BY, AMONG OTHERTHINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS **SECTION 10.3(C)**.

 

10.4                     Notices.  Unlessotherwise provided herein, all notices required or permitted by the termshereof shall be in writing.  Any writtennotice shall become effective when received. All notices and other communications hereunder shall be deemed to havebeen duly given if delivered by hand, by commercial overnight courier or byconfirmed facsimile transmission or mailed by certified or registered mail,return receipt requested, postage prepaid to the respective parties at thefollowing addresses (or at such other address for a party as shall be specifiedin a notice given in accordance with this paragraph:

 
| If to Buyer:

 

Biotage Sweden  AB 

Kungsgatan 76 

SE-753 18  Uppsala, Sweden 

Attn: Chief  Executive Officer |   | If to Seller:

 

Caliper Life  Sciences, Inc. 

68 Elm St. 

Hopkinton, MA  01748 

Attn: Chief Financial  Officer               |
|------------------------------------------------------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                   |   |                                                                                                                                        |
| With a copy to:

 

Nixon Peabody  LLP 

900 Elm Street 

Manchester, NH  03101 

Attn: James C.  Hood, Esq. |   | With a copy to:

 

Caliper Life  Sciences, Inc. 

850 Marina  Village Parkway 

Alameda, CA  94501-1038 

Attn: General  Counsel |

 

10.5                     Amendment and Alteration.  Noamendment or alteration of the terms of this Agreement shall be valid orbinding unless made in writing signed by all the parties to this Agreementagainst whom the amendment is sought to be enforced specifically referring tothis Agreement.

 

10.6                           Binding Agreement/Assignment.  ThisAgreement and all of the provisions hereof shall be binding upon and inure tothe benefit of the parties hereto and their respective successors and permittedassigns, provided, however, that neither this Agreement nor anyof the rights, interests or obligations hereunder shall be assigned by any ofthe parties hereto without the prior written consent of each of the otherparties, which consent shall not be unreasonably delayed, conditioned orwithheld, provided, further, that this Agreement and any of Buyer’sor Seller’s rights, interests and obligations hereunder may be freely assignedby Buyer or Seller, as applicable, to any of its Affiliates (providedthat Buyer or Seller, respectively, remains primarily liable for itsobligations hereunder following such assignment) or to the successor ininterest in event of a sale by Buyer or Seller of substantially all of itsassets or the merger of Buyer or Seller 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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withany other Person, provided that any such successor acknowledges inwriting its assumption of the obligations and liabilities hereunder.

 

10.7                           Counterparts.  ThisAgreement may be executed in one or more counterparts, and counterparts may beexchanged by electronic transmission, each of which will be deemed an original,but all of which together constitute one and the same instrument.

 

10.8                           Expenses.  Theparties hereto shall pay all of their own fees and expenses relating to thetransactions contemplated herein, including, without limitation, the fees andexpenses of their respective counsel and financial advisors.

 

10.9                           Headings.  Theheadings in the Articles and Sections of this Agreement are inserted forconvenience only and shall not constitute a part of this Agreement or in anyway modify, amend or affect its provisions.

 

10.10                     Non-Waiver; Remedies Cumulative.   No delay or failure on the partof either party in exercising any right hereunder, and no partial or singleexercise thereof, will constitute a waiver of such right or of any other righthereunder.  All rights, powers andremedies provided under this Agreement or otherwise available in respect hereofat law or in equity shall be cumulative and not alternative, and the exerciseor beginning of the exercise of any right, power or remedy thereof (includingthe remedy of indemnification) by any party shall not preclude the simultaneousor later exercise of any other right, power or remedy available at law or inequity to such party.

 

10.11                     Severability.   If any provision of this Agreement isdetermined by a court not to be enforceable in the manner set forth in thisAgreement, the parties agree and acknowledge that it is the intention of theundersigned parties to this Agreement that such provision should be enforceableto the maximum extent possible under applicable law and that such court shallreform such provision to make it enforceable in accordance with the intent ofthe parties.

 

10.12                     Third Party Beneficiaries.   Except for their proper successorsand assigns, the parties hereto intend that no third party shall have anyrights or Claims by reason of this Agreement.

 

10.13                     Construction.  Theparties have participated jointly in the negotiation and drafting of thisAgreement.  In the event an ambiguity orquestion of intent or interpretation arises, this Agreement must be construedas if drafted jointly by the parties and no presumption or burden of proof willarise favoring or disfavoring any party by virtue of the authorship of any ofthe provisions of this Agreement.  Anyreference to any federal, state, local or foreign statute or Applicable Lawwill be deemed also to refer to all rules and regulations promulgatedunder such Applicable Law, unless the context requires otherwise.  Whenever the words “include,” “includes” or “including”are used in this Agreement, they shall be deemed to be followed by the words “withoutlimitation,” whether or not they are in fact followed by those words or wordsof like import.  Terms defined in thesingular shall include the plural and vice versa.  The words “hereof,” “herein” and “hereunder”and words of like import used in this Agreement shall refer 

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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tothis Agreement as a whole and not to any particular provision of thisAgreement.  References to Articles,Sections, Exhibits and Schedules are to Articles, Sections, Exhibits andSchedules of this Agreement unless otherwise specified.

 

10.14                     Currency.  Allmonetary amounts referenced herein, and to be paid hereunder, will be in UnitedStates Dollars.

 

***[Signature Page Follows]***

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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INWITNESS WHEREOF, the parties have caused this Agreement to be duly executed onthe date first above written.

 
|   | **SELLER**                                    |
|--------|-----------------------------------------------|
|   |                                          |
|   | CALIPER  LIFE SCIENCES, INC.             |
|   |                                          |
|   |                                          |
|   | By:                                           | /s/  E. Kevin Hrusovsky |
|   | Name:  E. Kevin Hrusovsky                     |
|   | Title:  President and Chief Executive Officer |
|   |                                          |
|   |                                          |
|   | **BUYER**                                     |
|   |                                          |
|   |                                          |
|   | BIOTAGE  LLC                                  |
|   |                                          |
|   |                                          |
|   | By:                                           | /s/  Torben Jørgensen |
|   | Name:  Torben Jørgensen                  |
|   | Title:  Chairman                              |

 

Portions of this Exhibit were omitted and have been filedseparately with the Secretary of the Commission pursuant to the Registrant’sapplication requesting confidential treatment under Rule 24b-2 of theSecurities Exchange Act of 1934, as amended.

 

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