**EXHIBIT 10.2**

 

**AMENDED AND RESTATED LOAN AND SECURITYAGREEMENT**

 

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

 

**1****                                         ACCOUNTINGAND OTHER TERMS**

 

## **1.1****                              **Accountingterms not defined in this Agreement shall be construed following GAAP. Calculationsand determinations must be made following GAAP. Capitalized terms not otherwisedefined in this Agreement shall have the meanings set forth in Section 13.All other terms contained in this Agreement, unless otherwise indicated, shallhave the meaning provided by the Code to the extent such terms are definedtherein.

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## **1.2****                               AgentedLoan Arrangement**.

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

 

(b)                                 Operationof Loan Arrangement.

 

(i)                                     Except as otherwise permitted by Bank, CreditExtensions hereunder shall be requested solely by the Agent as agent for eachBorrower.

 

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

 

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

 

(c)                                  CreditExtensions Directly to Borrower.

 

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

 

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

 

(B)                                Bank deems it inexpedient (in Bank’s sole andabsolute discretion) to continue making Credit Extensions to or for the accountof any particular Borrower, or to channel such Credit Extensions through theAgent, then Bank may make Credit Extensions directly to such Borrower as Bankdetermines to be expedient, which Credit 

 

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

 

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

 

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

 

(d)                                 Continuationof Authority of Agent. The authority of the Agent to request CreditExtensions on behalf of, and to bind, each Borrower, shall continue unless anduntil Bank acts as provided in Section 1.2(c) above, or Bank actuallyreceives:

 

(i)                                     written notice of: (i) the terminationof such authority, and (ii) the subsequent appointment of a successorAgent, which notice is executed by the respective Presidents of each Borrowerthen eligible for borrowing under this Agreement; and

 

(ii)                                  written notice from the successor Agent (i) acceptingsuch appointment; (ii) acknowledging that the removal and appointment hasbeen effected by the respective Presidents of each Borrower eligible forborrowing under the within Agreement; and (iii) acknowledging that fromand after the date of appointment, the newly appointed Agent shall be bound bythe terms hereof, and that as used herein, the term “Agent” shall mean andinclude the newly appointed Agent.

 

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

 

**2****                                         LOANAND TERMS OF PAYMENT**

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## **2.1****                               Promiseto Pay**. Borrower hereby unconditionally promises to pay Bank theoutstanding principal amount of all Credit Extensions and accrued and unpaidinterest thereon as and when due in accordance with this Agreement.

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### **2.1.1****                     RevolvingAdvances**.

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#### (a)                  Availability.Subject to the terms and conditions of this Agreement, Bank shall make Advancesnot exceeding the Availability Amount. Amounts borrowed under the RevolvingLine may be repaid and, prior to the Revolving Line Maturity Date, reborrowed,subject to the applicable terms and conditions precedent herein.

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

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

 

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### **2.1.2****                     Letters ofCredit Sublimit**.

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#### (a)                                  Aspart of the Revolving Line, Bank shall issue or have issued Letters of Creditfor Borrower’s account. The face amount of outstanding Letters of Credit(including drawn but unreimbursed Letters of Credit and any Letter of CreditReserve) may not exceed $5,000,000.00. Such aggregate amounts utilizedhereunder shall at all times reduce the amount otherwise available for Advancesunder the Revolving Line. If, on the Revolving Maturity Date, there are anyoutstanding Letters of Credit, then on such date Borrower shall provide to Bankcash collateral in an amount equal to 105% of the face amount of all suchLetters of Credit plus all interest, fees, and costs due or to become due inconnection therewith (as estimated by Bank in its good faith business judgment),to secure all of the Obligations relating to said Letters of Credit. AllLetters of Credit shall be in form and substance acceptable to Bank in its solediscretion and shall be subject to the terms and conditions of Bank’s standardApplication and Letter of Credit Agreement (the “**Letter of Credit Application**”). Borrower agrees to execute anyfurther documentation in connection with the Letters of Credit as Bank mayreasonably request. Borrower further agrees tobe bound by the regulations and interpretations of the issuer of any Letters ofCredit guarantied by Bank and opened for Borrower’s account or by Bank’sinterpretations of any Letter of Credit issued by Bank for Borrower’s account,and Borrower understands and agrees that Bank shall not be liable for anyerror, negligence, or mistake, whether of omission or commission, in followingBorrower’s instructions or those contained in the Letters of Credit or anymodifications, amendments, or supplements thereto.

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#### (b)                                 Theobligation of Borrower to immediately reimburse Bank for drawings made underLetters of Credit shall be absolute, unconditional, and irrevocable, and shallbe performed strictly in accordance with the terms of this Agreement, suchLetters of Credit, and the Letter of Credit Application.

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#### (c)                                  Borrowermay request that Bank issue a Letter of Credit payable in a Foreign Currency. Ifa demand for payment is made under any such Letter of Credit, Bank shall treatsuch demand as an Advance to Borrower of the equivalent of the amount thereof (plusfees and charges in connection therewith such as wire, cable, SWIFT or similarcharges) in Dollars at the then-prevailing rate of exchange in San Francisco,California, for sales of the Foreign Currency for transfer to the countryissuing such Foreign Currency.

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#### (d)                                 Toguard against fluctuations in currency exchange rates, upon the issuance of anyLetter of Credit payable in a Foreign Currency, Bank shall create a reserve(the “**Letter of Credit Reserve**”)under the Revolving Line in an amount equal to ten percent (10%) of the faceamount of such Letter of Credit. The amount of the Letter of Credit Reserve maybe adjusted by Bank from time to time to account for fluctuations in theexchange rate. The availability of funds under the Revolving Line shall bereduced by the amount of such Letter of Credit Reserve for as long as suchLetter of Credit remains outstanding.

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

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## **2.3****                               Paymentof Interest on the Credit Extensions**.

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

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#### (b)                 DefaultRate. Immediately upon the occurrence and during the continuance of anEvent of Default, Obligations shall bear interest at a rate per annum which istwo percentage points above the rate effective immediately before the Event ofDefault (the “**Default Rate**”). Paymentor acceptance of the increased interest rate provided in this Section 2.3(b) isnot a permitted alternative to timely payment and shall not constitute a waiverof any Event of Default or otherwise prejudice or limit any rights or remediesof Bank.

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

 

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#### (d)                 360-DayYear. Interest shall be computed on the basis of a 360-day year for theactual number of days elapsed.

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#### (e)                  Debitof Accounts. Bank may debit any of Borrower’s deposit accounts, includingthe Designated Deposit Account, for principal and interest payments or anyother amounts Borrower owes Bank when due. These debits shall not constitute aset-off.

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

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## **2.4****                               Fees**.Borrower shall pay to Bank:

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

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

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

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**3****                                         CONDITIONSOF LOANS**

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## **3.1****                               ConditionsPrecedent to Initial Credit Extension**. Bank’s obligation to make theinitial Credit Extension is subject to the condition precedent that Bank shallhave received, in form and substance satisfactory to Bank, such documents, andcompletion of the following matters:

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#### (a)                  Dulyexecuted original signatures to the Loan Documents to which it is a party;

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#### (b)                 Dulyexecuted original signatures to the Control Agreements;

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#### (c)                  EachBorrower shall have delivered its Operating Documents and a good standingcertificate certified by the Secretary of State of the state in which suchBorrower is incorporated as of a date no earlier than thirty (30) days prior tothe Effective Date;

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#### (d)                 Dulyexecuted original signatures to the completed Borrowing Resolutions for eachBorrower;

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

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

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## **3.2****                               ConditionsPrecedent to all Credit Extensions**. Bank’s obligations to make each CreditExtension, including the initial Credit Extension, is subject to the following:

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#### (a)                  exceptas otherwise provided in Section 3.4, timely receipt of an executedPayment/Advance Form;  and

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#### (b)                 therepresentations and warranties in Section 5 shall be true in all materialrespects on the date of the Payment/Advance Form and on the Funding Dateof each Credit Extension; provided, however, that 

 

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

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#### (c)                  therehas not been a Material Adverse Change.

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## **3.3****                               Covenantto Deliver**.

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

 

## **3.4****                               Proceduresfor Borrowing**. Subject to the prior satisfaction of all other applicableconditions to the making of an Advance set forth in this Agreement, to obtainan Advance, Agent shall notify Bank (which notice shall be irrevocable) byelectronic mail, facsimile, or telephone by 12:00 noon Eastern time on theFunding Date of the Advance. Together with any such electronic or facsimilenotification, Agent shall deliver to Bank by electronic mail or facsimile acompleted Payment/Advance Form executed by a Responsible Officer or his orher designee. Bank may rely on any telephone notice given by a person whom Bankbelieves is a Responsible Officer or designee. Bank shall credit Advances tothe Designated Deposit Account. Bank may make Advances under this Agreementbased on instructions from a Responsible Officer or his or her designee orwithout instructions if the Advances are necessary to meet Obligations whichhave become due.

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**4****                                         CREATIONOF SECURITY INTEREST**

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## **4.1****                               Grantof Security Interest**. Borrower hereby grants Bank, to secure the paymentand performance in full of all of the Obligations, a continuing securityinterest in, and pledges to Bank, the Collateral, wherever located, whether nowowned or hereafter acquired or arising, and all proceeds and products thereof. Borrowerrepresents, warrants, and covenants that the security interest granted hereinis and shall at all times continue to be a first priority perfected securityinterest in the Collateral (subject only to Permitted Liens that may havesuperior priority to Bank’s Lien under this Agreement). If Borrower shallacquire a commercial tort claim, Borrower shall promptly notify Bank in awriting signed by Borrower of the general details thereof and grant to Bank insuch writing a security interest therein and in the proceeds thereof, all uponthe terms of this Agreement, with such writing to be in form and substancereasonably satisfactory to Bank.

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

 

## **4.2****                               Authorizationto File Financing Statements**. Borrower hereby authorizes Bank to filefinancing statements, without notice to Borrower, with all appropriatejurisdictions to perfect or protect Bank’s interest or rights hereunder,including a notice that any disposition of the Collateral, by either Borroweror any other Person, shall be deemed to violate the rights of Bank under theCode.

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**5****                                         REPRESENTATIONSAND WARRANTIES**

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Borrowerrepresents and warrants as follows:

 

## **5.1****                               DueOrganization and Authorization**. Borrower and each of its Subsidiaries areduly existing and in good standing, as Registered Organizations in theirrespective jurisdictions of formation and are qualified and licensed to dobusiness and are in good standing in any jurisdiction in which the conduct oftheir business or their ownership of property requires that they be qualifiedexcept where the failure to do so could not reasonably be 

 

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## expected to have a material adverse effect on Borrower’sbusiness. Borrower has previously delivered to Bank the Perfection Certificate.Borrower represents and warrants to Bank that (a) Borrower’s exact legalname is that indicated on the Perfection Certificate and on the signature page hereof;(b) Borrower is an organization of the type and is organized in thejurisdiction set forth in the Perfection Certificate; (c) the PerfectionCertificate accurately sets forth Borrower’s organizational identificationnumber or accurately states that Borrower has none; (d) the PerfectionCertificate accurately sets forth Borrower’s place of business, or, if morethan one, its chief executive office as well as Borrower’s mailing address (ifdifferent than its chief executive office); (e) Borrower (and each of itspredecessors) has not, in the past five (5) years, changed itsjurisdiction of formation, organizational structure or type, or anyorganizational number assigned by its jurisdiction; and (f) all otherinformation set forth on the Perfection Certificate pertaining to Borrower andeach of its Subsidiaries is accurate and complete in all material respects. IfBorrower is not now a Registered Organization but later becomes one, Borrowershall promptly notify Bank of such occurrence and provide Bank with Borrower’sorganizational identification number.

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The execution, deliveryand performance of the Loan Documents have been duly authorized, and do notconflict with Borrower’s organizational documents, nor constitute an event ofdefault under any material agreement by which Borrower is bound. Borrower isnot in default under any agreement to which it is a party or by which it isbound in which the default could reasonably be expected to have a materialadverse effect on Borrower’s business.

 

## **5.2****                               Collateral**.Borrower has good title to, has rights in, and the power to transfer each itemof the Collateral upon which it purports to grant a Lien hereunder, free andclear of any and all Liens except Permitted Liens. Borrower has no depositaccounts other than the deposit accounts with Bank, the deposit accounts, ifany, described in the Perfection Certificate delivered to Bank in connectionherewith, or of which Borrower has given Bank notice and taken such actions asare necessary to give Bank a perfected security interest therein. The Accountsare bona fide, existing obligations of the Account Debtors.

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

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

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Except as noted on thePerfection Certificate, Borrower is not a party to, nor is bound by, anymaterial license or other agreement with respect to which Borrower is thelicensee that prohibits or otherwise restricts Borrower from granting asecurity interest in Borrower’s interest in such license or agreement or anyother property. Borrower shall provide written notice to Bank within ten (10) daysof entering or becoming bound by any such license or agreement which isreasonably likely to have a material impact on Borrower’s business or financialcondition (other than over-the-counter software that is commercially availableto the public). Borrower shall take such steps as Bank requests to obtain theconsent of, or waiver by, any person whose consent or waiver is necessary forall such licenses or contract rights to be deemed “Collateral” and for Bank tohave a security interest in it that might otherwise be restricted or prohibitedby law or by the terms of any such license or agreement (such consent orauthorization may include a licensor’s agreement to a contingent assignment ofthe license to Bank if Bank determines that is necessary in its good faithjudgment), whether now existing or entered into in the future. Notwithstandingthe foregoing, the terms of the preceding sentence shall not apply to, and theCollateral shall not include, license agreements solely for the use ofIntellectual Property of a third party, with respect to which license Borroweris the licensee.

 

## **5.3****                               AccountsReceivable**. For any Eligible Account****inany Borrowing Base Certificate, all statements made and all unpaid balancesappearing in all invoices, instruments and other documents evidencing suchEligible Accounts are and shall be true and correct and all such invoices,instruments and other documents, and all of Borrower’s Books are genuine and inall respects what they purport to be. All sales and other transactionsunderlying or giving rise to each Eligible Account shall comply in all materialrespects with all applicable laws and governmental rules and regulations. Borrowerhas no knowledge of any actual or imminent Insolvency Proceeding of any AccountDebtor whose accounts are an Eligible Account in any Borrowing Base Certificate.To the best of Borrower’s knowledge, all signatures and endorsements on alldocuments, instruments, and agreements relating to 

 

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## all Eligible Accounts are genuine, and all suchdocuments, instruments and agreements are legally enforceable in accordancewith their terms.

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

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## **5.5****                               NoMaterial Deviation in Financial Statements**. All consolidated financialstatements for Borrower and any of its Subsidiaries delivered to Bank fairlypresent in all material respects Borrower’s consolidated financial conditionand Borrower’s consolidated results of operations. There has not been anymaterial deterioration in Borrower’s consolidated financial condition since thedate of the most recent financial statements submitted to Bank.

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## **5.6****                               Solvency**.The fair salable value of Borrower’s assets (including goodwill minusdisposition costs) exceeds the fair value of its liabilities; Borrower is notleft with unreasonably small capital after the transactions in this Agreement;and Borrower is able to pay its debts (including trade debts) as they mature.

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## **5.7****                               RegulatoryCompliance**. Borrower is not an “investment company” or a company “controlled”by an “investment company” under the Investment Company Act. Borrower is notengaged as one of its important activities in extending credit for margin stock(under Regulations T and U of the Federal Reserve Board of Governors). Borrowerhas complied in all material respects with the Federal Fair Labor Standards Act.Borrower has not violated any laws, ordinances or rules, the violation of whichcould reasonably be expected to have a material adverse effect on its business.None of Borrower’s or any of its Subsidiaries’ properties or assets has beenused by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, byprevious Persons, in disposing, producing, storing, treating, or transportingany hazardous substance other than legally. Borrower and each of itsSubsidiaries have obtained all consents, approvals and authorizations of, madeall declarations or filings with, and given all notices to, all governmentauthorities that are necessary to continue its business as currentlyconducted,  except for such consents,approvals, authorizations, declarations and filings the failure to obtain ormake would not reasonably be expected to have a material adverse effect onBorrower’s business or operations.

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## **5.8****                               Subsidiaries;Investments**. Borrower does not own any stock, partnership interest or otherequity securities except for Permitted Investments.

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## **5.9****                               TaxReturns and Payments; Pension Contributions**. Borrower has timely filed allrequired tax returns and reports, and Borrower and its Subsidiaries have timelypaid all foreign, federal, state and local taxes, assessments, deposits andcontributions owed by Borrower. Borrower may defer payment of any contestedtaxes, provided that Borrower (a) in good faith contests its obligation topay the taxes by appropriate proceedings promptly and diligently instituted andconducted, (b) notifies Bank in writing of the commencement of, and anymaterial development in, the proceedings, (c) posts bonds or takes anyother steps required to prevent the governmental authority levying suchcontested taxes from obtaining a Lien upon any of the Collateral that is otherthan a “Permitted Lien”. Borrower is unaware of any claims or adjustmentsproposed for any of Borrower’s prior tax years which could result in additionaltaxes becoming due and payable by Borrower in the aggregate in excess of TwoHundred Fifty Thousand Dollars ($250,000.00). Borrower has paid all amounts necessaryto fund all present pension, profit sharing and deferred compensation plans inaccordance with their terms, and Borrower has not withdrawn from participationin, and has not permitted partial or complete termination of, or permitted theoccurrence of any other event with respect to, any such plan which couldreasonably be expected to result in any liability of Borrower, including anyliability to the Pension Benefit Guaranty Corporation or its successors or anyother governmental agency.

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## **5.10****                        Use ofProceeds**. Borrower shall use the proceeds of the Credit Extensions solelyas working capital and to fund its general business requirements, and not forpersonal, family, household or agricultural purposes.

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## **5.11****                        FullDisclosure**. No written representation, warranty or other statement ofBorrower in any certificate or written statement given to Bank, as of the datesuch representations, warranties, or other statements were made, taken togetherwith all such written certificates and written statements given to Bank,contains any untrue statement of a material fact or omits to state a materialfact necessary to make the statements contained in the 

 

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

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**6****                                         AFFIRMATIVECOVENANTS**

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Borrower shall do all ofthe following:

 

## **6.1****                               GovernmentCompliance**. Maintain its and all its Subsidiaries’ legal existence and goodstanding in their respective jurisdictions of formation and maintainqualification in each jurisdiction in which the failure to so maintainexistence of a Subsidiary or to so qualify would reasonably be expected to havea material adverse effect on Borrower’s business or operations. Borrower shallcomply, and have each Subsidiary comply, with all laws, ordinances andregulations to which it is subject, the noncompliance with which could have amaterial adverse effect on Borrower’s business.

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## **6.2****                               FinancialStatements, Reports, Certificates**.

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#### (a)                  Deliverto Bank:  (i) as soon as available,but no later than forty-five (45) days after the last day of each quarter, acompany prepared consolidated balance sheet and income statement coveringCaliper’s consolidated (including each Borrower and any other Subsidiary ofCaliper) operations during the period certified by a Responsible Officer and ina form acceptable to Bank; (ii) as soon as available, but no later thanone hundred twenty (120) days after the last day of Caliper’s fiscal year,Caliper’s audited consolidated (including each Borrower and any otherSubsidiary of Caliper) financial statements prepared under GAAP, consistentlyapplied, together with an unqualified opinion on the financial statements froman independent certified public accounting firm acceptable to Bank in itsreasonable discretion; (iii) within five (5) days of delivery, copiesof all statements, reports and notices made available to Borrower’s securityholders or to any holders of Subordinated Debt (iv) within five (5) daysof filing, all reports on Form 10-K, 10-Q and 8-K filed with theSecurities and Exchange Commission or a link thereto on Caliper’s or anotherwebsite on the Internet; (v) a prompt report of any legal actions pendingor threatened against Borrower or any of its Subsidiaries that could result indamages or costs to Borrower or any of its Subsidiaries of One Million Dollars($1,000,000.00) or more; (vi) annually, Caliper’s consolidated (includingeach Borrower and any other Subsidiary of Caliper) annual operating budget,substantially as presented to the Board; (vii) as soon as available, butno later than fifteen (15) days after the last day of each month, a monthlycash report; and (viii) other financial information reasonably requestedby Bank.

####  

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

####  

#### (c)                  Withinforty-five (45) days after the last day of each quarter, deliver to Bank withthe quarterly financial statements, a duly completed Compliance Certificatesigned by a Responsible Officer setting forth calculations showing compliancewith the financial covenants set forth in this Agreement.

####  

#### (d)                 AllowBank to audit Borrower’s Collateral at Borrower’s expense. Such audits shall beconducted no more often than once every twelve (12) months unless a Default oran Event of Default has occurred and is continuing.

####  

## **6.3****                               Inventory;Returns**. Keep all Inventory in good and marketable condition, free frommaterial defects. Returns and allowances between Borrower and its AccountDebtors shall follow Borrower’s customary practices. Borrower must promptlynotify Bank of all returns, recoveries, disputes and claims that involve morethan One Million Dollars ($1,000,000).

##  

## **6.4****                               Taxes;Pensions**. Make, and cause each of its Subsidiaries to make, timely paymentof all foreign, federal, state, and local taxes or assessments (other thantaxes and assessments which Borrower is contesting pursuant to the terms of Section 5.9hereof) and shall deliver to Bank, on demand, appropriate certificatesattesting to such payments, and pay all amounts necessary to fund all presentpension, profit sharing and deferred compensation plans in accordance withtheir terms.

 

8

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## **6.5****                               Insurance**.Keep its business and the Collateral insured for risks and in amounts standardfor companies in Borrower’s industry and location and as Bank may reasonablyrequest. Insurance policies shall be in a form, with companies having a minimumAM Best rating of A-, and in amounts that are commercially reasonable. Allproperty policies shall have a lender’s loss payable endorsement showing Bankas lender loss payee, and all liability policies shall show, or haveendorsements showing, Bank as an additional insured. All policies (or the losspayable and additional insured endorsements) shall provide that the insurermust give Bank at least thirty (30) days notice before canceling its policy. AtBank’s request, Borrower shall deliver certified copies of policies andevidence of all premium payments. Proceeds payable under any policy shall, atBank’s option, be payable to Bank on account of the Obligations. Notwithstandingthe foregoing, (a) so long as no Event of Default has occurred and iscontinuing, Borrower shall have the option of applying the proceeds of anycasualty policy up to $250,000, in the aggregate, toward the replacement orrepair of destroyed or damaged property; provided that any such replaced orrepaired property (i) shall be of equal or like value as the replaced orrepaired Collateral and (ii) shall be deemed Collateral in which Bank hasbeen granted a first priority security interest, and (b) after theoccurrence and during the continuance of an Event of Default, all proceedspayable under such casualty policy shall, at the option of Bank, be payable toBank on account of the Obligations. If Borrower fails to obtain insurance asrequired under this Section 6.5 or to pay any amount or furnish anyrequired proof of payment to third persons and Bank, Bank may make all or partof such payment or obtain such insurance policies required in this Section 6.5,and take any action under the policies Bank deems prudent.

##  

## **6.6****                               OperatingAccounts**.

##  

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

####  

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

####  

## **6.7****                               FinancialCovenants**.

##  

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

 

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

 

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

 

## **6.8****                               LitigationCooperation**. From the date hereof and continuing through the termination ofthis Agreement, make available to Bank, without expense to Bank, Borrower andits officers, employees and agents and Borrower’s books and records, to theextent that Bank may deem them reasonably necessary to prosecute or defend anythird-party suit or proceeding instituted by or against Bank with respect toany Collateral or relating to Borrower.

 

9

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## **6.9****                               FurtherAssurances**. Borrower shall execute any further instruments and take furtheraction as Bank reasonably requests to perfect or continue Bank’s Lien in theCollateral or to effect the purposes of this Agreement.

##  

**7****                                         NEGATIVECOVENANTS**

** **

Borrower shall not do anyof the following without Bank’s prior written consent, which shall not beunreasonably withheld or delayed:

 

## **7.1****                               Dispositions**.Convey, sell, lease, transfer or otherwise dispose of (collectively, “**Transfer**”), or permit any of itsSubsidiaries to Transfer, all or any part of its business or property, exceptfor Transfers (a) of Inventory in the ordinary course of business; (b) ofworn-out or obsolete Equipment; (c) Equipment and Intellectual Property nolonger necessary or useful in the conduct of Borrower’s business, up to amaximum aggregate amount of One Million Dollars ($1,000,000.00) per annum; (d) inconnection with Permitted Liens and Permitted Investments; (e) of licensesfor the use of the property of Borrower or its Subsidiaries in the ordinarycourse of business; and (f) cross-licenses entered into in the settlementof litigation or threatened or potential litigation and consistent withBorrower’s past practices.

##  

## **7.2****                               Changesin Business, Management, Ownership, or Business Locations**. (a) Engagein or permit any of its Subsidiaries to engage in any business other than thebusinesses currently engaged in by Borrower and such Subsidiary, as applicable,or reasonably related thereto; (b) liquidate or dissolve; or (c) enterinto any transaction or series of related transactions in which thestockholders of Borrower immediately prior to the first such transaction ownless than 51% of the voting stock of Borrower immediately after giving effectto such transaction or related series of such transactions (other than by thesale of Borrower’s equity securities in a public offering or to venture capitalinvestors so long as Borrower identifies to Bank the venture capital investorsprior to the closing of the transaction). Borrower shall not, without at leastten (10) days prior written notice to Bank: (1) add any new officesor business locations at which any material amount of Inventory or Equipmentwill be located, (2) change its jurisdiction of organization, (3) changeits organizational structure or type, (4) change its legal name, or (5) changeany organizational number (if any) assigned by its jurisdiction of organization.

##  

## **7.3****                               Mergersor Acquisitions**. Without Bank’s prior written consent, which shall not beunreasonably withheld, merge or consolidate, or permit any of its Subsidiariesto merge or consolidate, with any other Person, or acquire, or permit any of itsSubsidiaries to acquire, all or substantially all of the capital stock orproperty of another Person, except (i) where (A) the aggregatepurchase price or other consideration for such transactions does not exceed$5,000,000.00, in the case of a cash transaction or $15,000,000.00 in the caseof a stock transaction, (B) no Event of Default has occurred and iscontinuing or would result from the consummation of such transaction during theterm of this Agreement, and (C) Borrower is the surviving entity aftersuch transaction or is the parent company of the surviving entity after suchtransaction, and (ii) a Subsidiary may merge or consolidate into anotherSubsidiary or into Borrower.

##  

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

##  

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

##  

## **7.6****                               Maintenanceof Collateral Accounts**. Maintain any Collateral Account except pursuant tothe terms of Section 6.6.(b) hereof.

##  

## **7.7****                              ****Distributions; Investments**. (a) Directlyor indirectly make any Investment other than Permitted Investments, or permitany of its Subsidiaries to do so; or (b) pay any dividends or make anydistribution or payment or redeem, retire or purchase any capital stock, otherthan any Investments or redemptions, retirements or purchases of capital stockthat in the aggregate exceed One Million Dollars ($1,000,000.00) during anyperiod of twelve (12) consecutive months.

 

10

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## **7.8****                               Transactionswith Affiliates**.  Directly orindirectly enter into or permit to exist any material transaction with anyAffiliate of Borrower, except for transactions that are in the ordinary courseof Borrower’s business, upon fair and reasonable terms that are no lessfavorable to Borrower than would be obtained in an arm’s length transactionwith a non-affiliated Person.

##  

## **7.9****                               SubordinatedDebt**.  (a) Make or permit anypayment on any Subordinated Debt, except under the terms of the subordination,intercreditor, or other similar agreement to which such Subordinated Debt issubject, or (b) amend any provision in any document relating to theSubordinated Debt which would increase the amount thereof or adversely affectthe subordination thereof to Obligations owed to Bank.

##  

## **7.10****                        Compliance**.  Become an “investment company” or a companycontrolled by an “investment company”, under the Investment Company Act of 1940or undertake as one of its important activities extending credit to purchase orcarry margin stock (as defined in Regulation U of the Board of Governors of theFederal Reserve System), or use the proceeds of any Credit Extension for thatpurpose; fail to meet the minimum funding requirements of ERISA, permit aReportable Event or Prohibited Transaction, as defined in ERISA, to occur; failto comply with the Federal Fair Labor Standards Act or violate any other law orregulation, if the violation could reasonably be expected to have a materialadverse effect on Borrower’s business, or permit any of its Subsidiaries to doso; withdraw or permit any Subsidiary to withdraw from participation in, permitpartial or complete termination of, or permit the occurrence of any other eventwith respect to, any present pension, profit sharing and deferred compensationplan which could reasonably be expected to result in any liability of Borrower,including any liability to the Pension Benefit Guaranty Corporation or itssuccessors or any other governmental agency.

##  

## **8****                                         EVENTSOF DEFAULT**

 

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

 

## **8.1****                               PaymentDefault**.  Borrower fails to (a) makeany payment of principal or interest on any Credit Extension on its due date,or (b) pay any other Obligations within three (3) Business Days aftersuch Obligations are due and payable (which three day grace period will notapply to payments due on the Maturity Date). During the cure period, the failure to cure the payment default is notan Event of Default (but no Credit Extension will be made during the cureperiod);

##  

## **8.2****                               CovenantDefault**.

##  

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

 

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

##  

## **8.3****                               MaterialAdverse Change**.  A Material AdverseChange occurs;

##  

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

 

11

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

##  

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

##  

## **8.6****                               OtherAgreements**.  There is a default inany agreement to which Borrower or any Guarantor is a party with a third partyor parties resulting in a right by such third party or parties, whether or notexercised, which results in the acceleration of the maturity of anyIndebtedness in an amount in excess of One Million Dollars ($1,000,000.00) orthat could have a material adverse effect on Borrower’s business;

##  

## **8.7****                               Judgments**. A judgment or judgments for the paymentof money in an amount, individually or in the aggregate, of at least OneMillion Dollars ($1,000,000.00) (not covered by independent third-partyinsurance) shall be rendered against Borrower and shall remain unsatisfied andunstayed for a period of thirty (30) days after the entry thereof (providedthat no Credit Extensions will be made prior to the satisfaction or stay ofsuch judgment);

##  

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

##  

## **8.9****                               SubordinatedDebt**.  A default or breach occursunder any agreement between Borrower and any creditor of Borrower that signed asubordination, intercreditor, or other similar agreement with Bank, or anycreditor that has signed such an agreement with Bank breaches any terms of suchagreement.

##  

## **9****                                         BANK’SRIGHTS AND REMEDIES**

 

## **9.1****                               Rightsand Remedies**.  While an Event ofDefault occurs and continues Bank may, without notice or demand, do any or allof the following:

##  

#### (a)                  declareall Obligations immediately due and payable (but if an Event of Defaultdescribed in Section 8.5 occurs all Obligations are immediately due andpayable without any action by Bank);

####  

#### (b)                 stopadvancing money or extending credit for Borrower’s benefit under this Agreementor under any other agreement between Borrower and Bank;

####  

#### (c)                  demandthat Borrower (i) deposits cash with Bank in an amount equal to theaggregate amount of any Letters of Credit remaining undrawn, as collateralsecurity for the repayment of any future drawings under such Letters of Credit,and Borrower shall forthwith deposit and pay such amounts, and (ii) pay inadvance all Letter of Credit fees scheduled to be paid or payable over theremaining term of any Letters of Credit;

####  

#### (d)                 settleor adjust disputes and claims directly with Account Debtors for amounts onterms and in any order that Bank considers advisable, notify any Person owingBorrower money of Bank’s security interest in such funds, and verify the amountof such account;

####  

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

####  

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

 

12

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

####  

#### (h)                 placea “hold” on any account maintained with Bank and/or deliver a notice ofexclusive control, any entitlement order, or other directions or instructionspursuant to any Control Agreement or similar agreements providing control ofany Collateral;

####  

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

####  

#### (j)                     exerciseall rights and remedies available to Bank under the Loan Documents or at law orequity, including all remedies provided under the Code (including disposal ofthe Collateral pursuant to the terms thereof).

####  

## **9.2****                               Powerof Attorney**.  Borrower herebyirrevocably appoints Bank as its lawful attorney-in-fact, exercisable upon theoccurrence and during the continuance of an Event of Default, to:  (a) endorse Borrower’s name on anychecks or other forms of payment or security; (b) sign Borrower’s name onany invoice or bill of lading for any Account or drafts against AccountDebtors; (c) settle and adjust disputes and claims about the Accountsdirectly with Account Debtors, for amounts and on terms Bank determinesreasonable; (d) make, settle, and adjust all claims under Borrower’sinsurance policies; (e) pay, contest or settle any Lien, charge,encumbrance, security interest, and adverse claim in or to the Collateral, orany judgment based thereon, or otherwise take any action to terminate ordischarge the same; and (f) transfer the Collateral into the name of Bankor a third party as the Code permits. Borrower hereby appoints Bank as its lawful attorney-in-fact to signBorrower’s name on any documents necessary to perfect or continue theperfection of Bank’s security interest in the Collateral regardless of whetheran Event of Default has occurred until all Obligations have been satisfied infull and Bank is under no further obligation to make Credit Extensionshereunder.  Bank’s foregoing appointmentas Borrower’s attorney in fact, and all of Bank’s rights and powers, coupledwith an interest, are irrevocable until all Obligations have been fully repaidand performed and Bank’s obligation to provide Credit Extensions terminates.

##  

## **9.3****                               AccountsVerification; Collection**.  In theevent that an Event of Default has occurred and is continuing, Bank may notifyany Person owing Borrower money of Bank’s security interest in such funds andverify the amount of such account.  Afterthe occurrence of an Event of Default, any amounts received by Borrower shallbe held in trust by Borrower for Bank, and, if requested by Bank, Borrowershall immediately deliver such receipts to Bank in the form received from theAccount Debtor, with proper endorsements for deposit.

##  

## **9.4****                               ProtectivePayments**.  If Borrower fails toobtain the insurance called for by Section 6.5 or fails to pay any premiumthereon or fails to pay any other amount which Borrower is obligated to payunder this Agreement or any other Loan Document, Bank may obtain such insuranceor make such payment, and all amounts so paid by Bank are Bank Expenses andimmediately due and payable, bearing interest at the then highest applicablerate, and secured by the Collateral. Bank will make reasonable efforts to provide Borrower with notice ofBank obtaining such insurance at the time it is obtained or within a reasonabletime thereafter.  No payments by Bank aredeemed an agreement to make similar payments in the future or Bank’s waiver ofany Event of Default.

##  

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

 

13

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## good faith business judgment, directly or indirectly enters into adeferred payment or other credit transaction with any purchaser at any sale ofCollateral, Bank shall have the option, exercisable at any time, of eitherreducing the Obligations by the principal amount of the purchase price ordeferring the reduction of the Obligations until the actual receipt by Bank ofcash therefor.

##  

## **9.6****                               Bank’sLiability for Collateral**.  So long asBank complies with reasonable banking practices regarding the safekeeping ofthe Collateral in the possession or under the control of Bank, Bank shall notbe liable or responsible for: (a) the safekeeping of the Collateral; (b) anyloss or damage to the Collateral; (c) any diminution in the value of theCollateral; or (d) any act or default of any carrier, warehouseman,bailee, or other Person.  Borrower bearsall risk of loss, damage or destruction of the Collateral.

##  

## **9.7****                               NoWaiver; Remedies Cumulative**.  Bank’sfailure, at any time or times, to require strict performance by Borrower of anyprovision of this Agreement or any other Loan Document shall not waive, affect,or diminish any right of Bank thereafter to demand strict performance andcompliance herewith or therewith.  Nowaiver hereunder shall be effective unless signed by Bank and then is onlyeffective for the specific instance and purpose for which it is given.  Bank’s rights and remedies under thisAgreement and the other Loan Documents are cumulative.  Bank has all rights and remedies providedunder the Code, by law, or in equity. Bank’s exercise of one right or remedy is not an election, and Bank’swaiver of any Event of Default is not a continuing waiver.  Bank’s delay in exercising any remedy is nota waiver, election, or acquiescence.

##  

## **9.8****                               DemandWaiver**.  Borrower waives demand,notice of default or dishonor, notice of payment and nonpayment, notice of anydefault, nonpayment at maturity, release, compromise, settlement, extension, orrenewal of accounts, documents, instruments, chattel paper, and guarantees heldby Bank on which Borrower is liable.

##  

## **10****                                  NOTICES**

 

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

 
|   | If to Borrower: | Caliper Life  Sciences, Inc.              |       |
|--------|-----------------|------------------------------------------------|------------|
|   |            | 68 Elm Street                                  |       |
|   |            | Hopkinton,  Massachusetts 01748                |       |
|   |            | Attn: Thomas Higgins,  Chief Financial Officer |       |
|   |            | Fax: (508) 497-2726                            |       |
|   |            | Email:  Thomas.Higgins@caliperls.com |       |
|   |            |                                           |       |
|   | with a copy to: | Caliper Life Sciences, Inc.               |       |
|   |            | 650 Fairchild Drive                            |       |
|   |            | Mountain View, CA 94043-2234                   |       |
|   |            | Attn: Steve Creager, General Counsel           |       |
|   |            | Fax: (650) 623-0505                            |       |
|   |            | Email: Stephen.Creager@caliperls.com           |       |
|   |            |                                           |       |
|   | If to Bank:     | Silicon Valley Bank                            |       |
|   |            | One Newton Executive  Park, Suite 200     |       |
|   |            | 2221 Washington Street                         |       |
|   |            | Newton, Massachusetts  02462                   |       |
|   |            | Attn:  Mr.  Tom Davies               | ** ** |
|   |            | Fax:  (617) 939-5973                      |       |
|   |            | Email: tdavies@svb.com                    |       |

 

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|   | with a copy to: | Riemer & Braunstein LLP |   |
|--------|-----------------|----------------------------------|--------|
|   |            | Three Center Plaza               |   |
|   |            | Boston, Massachusetts 02108      |   |
|   |            | Attn: David A. Ephraim, Esquire  |   |
|   |            | Fax: (617) 880-3456              |   |
|   |            | Email: DEphraim@riemerlaw.com    |   |

 

**11****                                  CHOICEOF LAW, VENUE AND JURY TRIAL WAIVER AND JUDICIAL REFERENCE**

# ** **

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

 

**TO THE EXTENT PERMITTED BY APPLICABLELAW, BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM ORCAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTSOR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY ANDALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TOENTER INTO THIS AGREEMENT.  EACH PARTYHAS REVIEWED THIS WAIVER WITH ITS COUNSEL**.

 

## **12****                                  GENERALPROVISIONS**

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## **12.1****                        Successorsand Assigns**.  This Agreement bindsand is for the benefit of the successors and permitted assigns of eachparty.  Borrower may not assign thisAgreement or any rights or obligations under it without Bank’s prior writtenconsent (which may be granted or withheld in Bank’s discretion).  Bank has the right, without the consent of ornotice to Borrower, to sell, transfer, negotiate, or grant participation in allor any part of, or any interest in, Bank’s obligations, rights, and benefitsunder this Agreement and the other Loan Documents.

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

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## **12.3****                        Limitationof Actions**.* *Any claim or cause of action byBorrower against Bank, its directors, officers, employees, agents, accountants,attorneys, or any other Person affiliated with or representing Bank based upon,arising from, or relating to this Loan Agreement or any other Loan Document, orany other transaction contemplated hereby or thereby or relating hereto orthereto, or any other matter, cause or thing whatsoever, occurred, done,omitted or suffered to be done by Bank, its directors, officers, employees,agents, accountants or attorneys, shall be barred unless asserted by Borrowerby the commencement of an action or proceeding in a court of competentjurisdiction by (a) the filing of a complaint within one year from theearlier of (i) the date any of Borrower’s officer or directors hadknowledge of the first act, the occurrence or omission upon which such claim orcause of action, or any part thereof, is based, or (ii) the date thisAgreement is terminated, and (b) the service of a summons and complaint onan officer of Bank, or on any other person authorized to accept service onbehalf of Bank, within thirty (30) days thereafter.  Borrower agrees that such one-year period isa reasonable and sufficient time for Borrower to investigate and act upon anysuch claim or cause of action.  Theone-year period provided herein shall not be waived, tolled, or extended exceptby the written consent of Bank in its sole discretion.  This provision shall survive any terminationof this Loan Agreement or any other Loan Document.

 

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## **12.4****                        Time ofEssence**.  Time is of the essence forthe performance of all Obligations in this Agreement.

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## **12.5****                        Severabilityof Provisions**.  Each provision ofthis Agreement is severable from every other provision in determining theenforceability of any provision.

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## **12.6****                        Amendmentsin Writing; Integration**.  Allamendments to this Agreement must be in writing signed by both Bank andBorrower.  This Agreement and the LoanDocuments represent the entire agreement about this subject matter andsupersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties, andnegotiations between the parties about the subject matter of this Agreement andthe Loan Documents merge into this Agreement and the Loan Documents.

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

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## **12.8****                        Survival**.  All covenants, representations and warrantiesmade in this Agreement continue in full force until this Agreement hasterminated pursuant to its terms and all Obligations (other than inchoateindemnity obligations and any other obligations which, by their terms, are tosurvive the termination of this Agreement) have been satisfied.  The obligation of Borrower in Section 12.2to indemnify Bank shall survive until the statute of limitations with respectto such claim or cause of action shall have run.

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

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

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## **12.11****                 BorrowerLiability**.  As detailed in Article 1,each Borrower has appointed Caliper as Agent for each Borrower for all purposeshereunder, including with respect to requesting Credit Extensionshereunder.  Each Borrower hereunder shallbe obligated to repay all Credit Extensions made hereunder, regardless of whichBorrower actually receives said Credit Extension, as if each Borrower hereunderdirectly received all Credit Extensions. Each Borrower waives any suretyship defenses available to it under theCode or any other applicable law.  EachBorrower waives any right to require Bank to: (i) proceed against anyBorrower or any other person; (ii) proceed against or exhaust anysecurity; or (iii) pursue any other remedy.  Bank may exercise or not exercise any rightor remedy it has against any Borrower or any security it holds (including theright to foreclose by judicial or non-judicial sale) without affecting anyBorrower’s liability.  Notwithstandingany other provision of this Agreement or other related document, each Borrowerirrevocably waives all rights that it may have at law or in equity (including,without limitation, any law subrogating Borrower to the rights of Bank underthis Agreement) to seek contribution, indemnification or any other form ofreimbursement from any other Borrower, or any other Person now or hereafterprimarily or secondarily liable for any of the Obligations, for any paymentmade by Borrower with respect to the Obligations in connection with thisAgreement or otherwise and all rights that it might have to benefit from, or to

 

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## participate in, any security for the Obligations as a result of anypayment made by Borrower with respect to the Obligations in connection withthis Agreement or otherwise.  Anyagreement providing for indemnification, reimbursement or any other arrangementprohibited under this Section shall be null and void.  If any payment is made to a Borrower incontravention of this Section, such Borrower shall hold such payment in trustfor Bank and such payment shall be promptly delivered to Bank for applicationto the Obligations, whether matured or unmatured.

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

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

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## **13****                                  DEFINITIONS**

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## **13.1****                        Definitions**.  As used in this Agreement, the followingterms have the following meanings:

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

 

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

 

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

 

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

 

“**Agent**”is defined in Section 1.2(a).

 

“**Agreement**”is defined in the preamble hereof.

 

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

 

“**Bank**” isdefined in the preamble hereof.

 

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

 

“**Board**”is Borrower’s Board of Directors.

 

“**Borrower**”is defined in the preamble hereof.

 

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

 

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

 

“**Borrowing BaseCertificate**” is that certain certificate in the form attached heretoas Exhibit C.

 

“**BorrowingResolutions**” are, with respect to any Person, those resolutionsadopted by such Person’s Board of Directors and delivered by such Person toBank approving the Loan Documents to which such Person is a party and thetransactions contemplated thereby, together with a certificate executed by itssecretary on behalf of such Person certifying that (a) such Person has theauthority to execute, deliver, and perform its obligations under each of theLoan Documents to which it is a party, (b) that attached as Exhibit Ato such certificate is a true, correct, and complete copy of the resolutionsthen in full force and effect authorizing and ratifying the execution,delivery, and performance by such Person of the Loan Documents to which it is aparty, (c) the name(s) of the Person(s) authorized to executethe Loan Documents on behalf of such Person, together with a sample of the truesignature(s) of such Person(s), and (d) that Bank may conclusivelyrely on such certificate unless and until such Person shall have delivered toBank a further certificate canceling or amending such prior certificate.

 

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

 

“**Caliper**”is defined in the preamble hereof.

 

“**Cash Equivalentsand Marketable Securities**” means (a) marketable directobligations issued or unconditionally guaranteed by the United States or anyagency or any State thereof having maturities of not more than one (1) yearfrom the date of acquisition; (b) commercial paper maturing no more thanone (1) year after its creation and having the highest rating from eitherStandard & Poor’s Ratings Group or Moody’s Investors Service, Inc.,(c) Bank’s certificates of deposit issued maturing no more than one (1) yearafter issue, and (d) any marketable securities owned and held by Capilerin compliance with Caliper’s approved investment guidelines as of the EffectiveDate (a copy of which has been delivered to Bank).

 

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

 

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

 

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

 

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

 

“**Communication**”is defined in Section 10.

 

“**ComplianceCertificate**” is that certain certificate in the form attached heretoas Exhibit D.

 

“**ContingentObligation**” is, for any Person, any direct or indirect liability,contingent or not, of that Person for (a) any indebtedness, lease,dividend, letter of credit or other obligation of another such as an obligationdirectly or indirectly guaranteed, endorsed, co-made, discounted or sold withrecourse by that Person, or for which that Person is directly or indirectlyliable; (b) any obligations for undrawn letters of credit for the accountof that Person; and (c) all obligations from any interest rate, currencyor commodity swap agreement, interest rate cap or collar agreement, or otheragreement or arrangement designated to protect a Person against fluctuation ininterest 

 

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rates, currency exchangerates or commodity prices; but “Contingent Obligation” does not includeendorsements in the ordinary course of business.  The amount of a Contingent Obligation is thestated or determined amount of the primary obligation for which the ContingentObligation is made or, if not determinable, the maximum reasonably anticipatedliability for it determined by the Person in good faith; but the amount may notexceed the maximum of the obligations under any guarantee or other supportarrangement.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Designated DepositAccount**” is Borrower’s deposit account, account number                          ,maintained with Bank.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(d)                                 Creditbalances over ninety (90) days from invoice date;

 

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

 

(f)                                    Accountsowing from an Account Debtor which does not have its principal place ofbusiness in the United States but only to the extent any such Accounts arespecifically deemed ineligible in writing by Bank in its sole and absolutediscretion;

 

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

 

(h)                                 Accountsowing from an Account Debtor to the extent that Borrower is indebted orobligated in any manner to the Account Debtor (as creditor, lessor, supplier orotherwise - sometimes called “contra” accounts, accounts payable, customerdeposits or credit accounts), with the exception of customary credits,adjustments and/or discounts given to an Account Debtor by Borrower in theordinary course of its business;

 

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

 

(j)                                     Accountsfor which the Account Debtor is Borrower’s Affiliate, officer, employee, oragent;

 

(k)                                  Accountsin which the Account Debtor disputes liability or makes any claim (but only upto the disputed or claimed amount), or if the Account Debtor is subject to anInsolvency Proceeding, or becomes insolvent, or goes out of business;

 

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

 

(m)                               Accountsfor which Bank in its good faith business judgment determines collection to bedoubtful; and

 

(n)                                 otherAccounts Bank deems ineligible in the exercise of its good faith businessjudgment.

 

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

 

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

 

“**Event of Default**”is defined in Section 8.

 

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

 

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

 

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

 

“**GAAP**” isgenerally accepted accounting principles set forth in the opinions andpronouncements of the Accounting Principles Board of the American Institute ofCertified Public Accountants and statements and pronouncements of the FinancialAccounting Standards Board or in such other statements by such other Person asmay be approved by a significant segment of the accounting profession, whichare applicable to the circumstances as of the date of determination.

 

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

 

“**Indebtedness**”is (a) indebtedness for borrowed money or the deferred price of propertyor services, such as reimbursement and other obligations for surety bonds andletters of credit, (b) obligations evidenced by notes, bonds, debenturesor similar instruments, (c) capital lease obligations, and (d) ContingentObligations.

 

“**InsolvencyProceeding**” is any proceeding by or against any Person under theUnited States Bankruptcy Code, or any other bankruptcy or insolvency law,including assignments for the benefit of creditors, compositions, extensionsgenerally with its creditors, or proceedings seeking reorganization,arrangement, or other relief.

 

“**IntellectualProperty**” is (a) any copyright rights, copyright applications,copyright registrations and like protections in each work of authorship andderivative work, whether published or unpublished, (b) any patents, patentapplications and like protections, including improvements, divisions,continuations, renewals, reissues, extensions, and continuations-in-part of thesame, trademarks, service marks and, to the extent permitted under applicablelaw, any applications therefor, whether registered or not, and the goodwill ofthe business of Borrower connected with and symbolized thereby, (c) anyknow-how, operating manuals, trade secret rights, rights to unpatentedinventions, and (d) any claims for damage by way of any past, present, orfuture infringement of any of the foregoing.

 

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

 

“**Inventory**”is all “inventory” as defined in the Code in effect on the date hereof withsuch additions to such term as may hereafter be made, and includes withoutlimitation all merchandise, raw materials, parts, supplies, packing andshipping materials, work in process and finished products, including withoutlimitation such inventory as is temporarily out of Borrower’s custody orpossession or in transit and including any returned goods and any documents oftitle representing any of the above.

 

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

 

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

 

“**Letter of CreditApplication**” is defined in Section 2.1.2(a).

 

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

 

“**Lien**” isa mortgage, lien, deed of trust, charge, pledge, security interest or otherencumbrance.

 

“**Loan Documents**”are, collectively, this Agreement, the Perfection Certificate, any note, ornotes or guaranties executed by Borrower or any Guarantor, and any otherpresent or future agreement between Borrower any Guarantor and/or for thebenefit of Bank in connection with this Agreement, all as amended, restated, orotherwise modified.

 

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“**Material AdverseChange**” is (a) a material impairment in the perfection or priorityof Bank’s Lien in the Collateral or in the value of such Collateral; (b) amaterial adverse change in the business, operations, or condition (financial orotherwise) of Borrower; (c) a material impairment of the prospect ofrepayment of any portion of the Obligations; or****(d) Bank determines in good faith, based uponinformation available to it and in its reasonable judgment, that there is asubstantial likelihood that Borrower shall fail to comply with one or more ofthe financial covenants in Section 6 during the next succeeding financialreporting period.

 

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

 

“**NovaScreen**”is defined in the preamble hereof.

 

“**Obligations**”are Borrower’s obligation to pay when due any debts, principal, interest, BankExpenses and other amounts Borrower owes Bank now or later, whether under thisAgreement, the Loan Documents, or otherwise, including, without limitation, allobligations relating to letters of credit (including reimbursement obligationsfor drawn and undrawn letters of credit), cash management services, and foreignexchange contracts, if any, and including interest accruing after InsolvencyProceedings begin and debts, liabilities, or obligations of Borrower assignedto Bank, and the performance of Borrower’s duties under the Loan Documents.

 

“**Operating Documents**”are, for any Person, such Person’s formation documents, as certified with theSecretary of State of such Person’s state of formation on a date that is noearlier than 30 days prior to the Effective Date, and its bylaws in currentform,****each of the foregoing withall current amendments or modifications thereto.

 

“**Payment/AdvanceForm**” is that certain form attached hereto as Exhibit B.

 

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

 

“**PermittedIndebtedness**” is:

 

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

 

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

 

(c)                                  SubordinatedDebt;

 

(d)                                 unsecuredIndebtedness to trade creditors incurred in theordinary course of business;

 

(e)                                  Indebtednesssecured by Permitted Liens;

 

(f)                                    otherunsecured Indebtedness that does not, in the aggregate, exceed One MillionDollars ($1,000,000.00) outstanding at any time; and

 

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

 

“**PermittedInvestments**” are:

 

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

 

(b)                                 CashEquivalents and Marketable Securities;

 

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(c)                                  Investmentsconsisting of (i) travel advances and employee relocation loans and otheremployee loans and advances in the ordinary course of business, and (ii) loansto employees, officers or directors relating to the purchase of equitysecurities of Borrower or its Subsidiaries pursuant to employee stock purchaseplans or agreements approved by Borrower’s Board of Directors; and

 

(d)                                 jointventures or strategic alliances in the ordinary course of Borrower’s businessconsisting of the non-exclusive licensing of technology, the development oftechnology or the providing of technical support, provided that any cashinvestments by Borrower do not exceed One Million Dollars ($1,000,000.00) inthe aggregate in any fiscal year.

 

“**Permitted Liens**”are:

 

(a)                                  Liensexisting on the Effective Date and shown on the Perfection Certificate orarising under this Agreement and the other Loan Documents;

 

(b)                                 Liensfor taxes, fees, assessments or other government charges or levies, either notdelinquent or being contested in good faith and for which Borrower maintainsadequate reserves on its Books, if they have no priority over any ofBank’s Liens;

 

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

 

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

 

(e)                                  leasesor subleases of real property granted in the ordinary course of business, andleases, subleases, non-exclusive licenses or sublicenses of property (otherthan real property or intellectual property) granted in the ordinary course ofBorrower’s business, if the leases, subleases, licenses and sublicensesdo not prohibit granting Bank a security interest;

 

(f)                                    non-exclusivelicense of intellectual property granted to third parties in the ordinarycourse of business; and

 

(g)                                 Liensarising from judgments, decrees or attachments in circumstances notconstituting an Event of Default under Section 8.4 or 8.7.

 

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

 

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

 

“**Quick Assets**”is, on any date, all cash and Cash Equivalents and Marketable Securities asshown on Borrower’s consolidated financial statements as of such date preparedin accordance with GAAP, plus net billed accounts receivable and UnbilledAccounts, excluding any cash or Cash Equivalents and Marketable Securities thatare restricted or are pledged to any Person other than Bank or any of Bank’sAffiliates.

 

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

 

“**RegisteredOrganization**” is any “registered organization” as defined in theCode with such additions to such term as may hereafter be made

 

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

 

23

----

 

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

 

“**Revolving LineMaturity Date**” is June 30, 2009.

 

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

 

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

 

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

 

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

 

“**Transfer**”is defined in Section 7.1.

 

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

 

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

 

“**Xenogen**”is defined in the preamble hereof.

 

“**Xenogen Biosciences**”is defined in the preamble hereof.

 

Signature page follows.

 

24

----

 

**IN WITNESS WHEREOF**,the parties hereto have caused this Agreement to be executed as a sealedinstrument under the laws of the Commonwealth of Massachusetts as of theEffective Date.

 
| BORROWER:                           |                   |   |
|-------------------------------------|------------------------|--------|
|                                |                   |   |
| CALIPER  LIFE SCIENCES, INC.        |                   |   |
|                                |                   |   |
| By                                  | /s/  Thomas T. Higgins |   |   |
| Name:                               | Thomas  T. Higgins     |   |   |
| Title:                              | CFO                    |   |   |
|                                |                   |   |   |
| NOVASCREEN  BIOSCIENCES CORPORATION |
|                                |                   |   |   |
| By                                  | /s/  Thomas T. Higgins |   |   |
| Name:                               | Thomas  T. Higgins     |   |   |
| Title:                              | CFO                    |   |   |
|                                |                   |   |   |
| XENOGEN  CORPORATION                |
|                                |                   |   |   |
| By                                  | /s/  Thomas T. Higgins |   |   |
| Name:                               | Thomas  T. Higgins     |   |   |
| Title:                              | CFO                    |   |   |
|                                |                   |   |   |
| XENOGEN  BIOSCIENCES CORPORATION    |
|                                |                   |   |   |
| By                                  | /s/  Thomas T. Higgins |   |   |
| Name:                               | Thomas  T. Higgins     |   |   |
| Title:                              | CFO                    |   |   |
|                                |                   |   |   |
| BANK:                               |                   |   |   |
|                                |                   |   |   |
| SILICON  VALLEY BANK                |                   |
|                                |                   |   |   |
| By                                  | /s/  Clark Hayes       |   |   |
| Name:                               | Clark  Hayes           |   |   |
| Title:                              | RM                     |   |   |

 

[Signature page to Loan and Security Agreement]

 

----

 

**EXHIBIT A**

** **

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

 

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

 

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

 

Notwithstanding theforegoing, the Collateral does not include any of the following, whether nowowned or hereafter acquired (a) more than 65% of the presently existingand hereafter arising issued and outstanding shares of capital stock owned byBorrower of any Foreign Subsidiary which shares entitle the holder thereof tovote for directors or any other matter, (b) license agreements solely forthe use of Intellectual Property of a third party, with respect to whichlicense Borrower is the licensee, (c) any copyright rights, copyrightapplications, copyright registrations and like protections in each work ofauthorship and derivative work, whether published or unpublished, (d) anypatents, patent applications and like protections, including improvements,divisions, continuations, renewals, reissues, extensions, and continuations-in-partof the same, trademarks, service marks and, to the extent permitted underapplicable law, any applications therefor, whether registered or not, and thegoodwill of the business of Borrower connected with and symbolized thereby, (e) anyknow-how, operating manuals, trade secret rights, rights to unpatentedinventions, and (f) any claims for damage by way of any past, present, orfuture infringement of any of the foregoing; provided, however, the Collateralshall include all Accounts, license and royalty fees and other revenues,proceeds, or income arising out of or relating to any of the foregoing.

 

Pursuant to the terms ofa certain negative pledge arrangement with Bank, Borrower has agreed not toencumber any of its copyright rights, copyright applications, copyrightregistrations and like protections in each work of authorship and derivativework, whether published or unpublished, any patents, patent applications andlike protections, including improvements, divisions, continuations, renewals,reissues, extensions, and continuations-in-part of the same, trademarks,service marks and, to the extent permitted under applicable law, anyapplications therefor, whether registered or not, and the goodwill of thebusiness of Borrower connected with and symbolized thereby, know-how, operatingmanuals, trade secret rights, rights to unpatented inventions, and any claimsfor damage by way of any past, present, or future infringement of any of theforegoing, without Bank’s prior written consent.

 

1

----

 

**EXHIBIT B**

** **

**Loan Payment/Advance Request Form**

 

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

 
| Fax  To:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       | Date:               |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------|
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |
| **LOAN PAYMENT:**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 | ** ** | ** **          |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | ** **          |
| Caliper Life Sciences, Inc., as Agent                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |
| From Account #                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       |                | To Account # |   |
| (Deposit Account #)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       | (Loan Account #)    |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |
| Principal $                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                | and/or Interest $ |   |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |   |
| **Authorized Signature:**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         | ** ** |                | Phone Number: |   |
| Print Name/Title:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                |   |   |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |
| **LOAN ADVANCE:**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |
| Complete *Outgoing Wire Request*  section below if all or a portion of the funds from this loan advance are for  an outgoing wire.                                                                                                                                                                                                                                                                                                                                                                                                                                                |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |
| From Account #                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       |                | To Account # |   |
| (Loan Account #)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |       | (Deposit Account #) |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |
| Amount of Advance $                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                |   |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |
| All Borrower’s representations and warranties in the Loan and  Security Agreement are true, correct and complete in all material respects on  the date of the request for an advance; provided, however, that such  materiality qualifier shall not be applicable to any representations and  warranties that already are qualified or modified by materiality in the text  thereof; and provided, further that those representations and warranties  expressly referring to a specific date shall be true, accurate and complete  in all material respects as of such date: |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                |
| **Authorized Signature:**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         | ** ** |                | Phone Number: |   |
| Print Name/Title:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                |   |   |
|                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |            |                     |  |  |  |  |  |  |  |  |  |  |  |  |  |

 
| **OUTGOING WIRE REQUEST:**                                                                                                                                                                                                                                                                                           |   |   |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|
| **Complete only if all or a portion of funds from the loan advance  above is to be wired.**                                                                                                                                                                                                                          |
| Deadline for same day processing is noon, E.S.T.                                                                                                                                                                                                                                                                     |   |   |
|                                                                                                                                                                                                                                                                                                                 |   |   |
| Beneficiary Name:                                                                                                                                                                                                                                                                                                    |   |   | Amount of Wire: $ |   |
| Beneficiary Bank:                                                                                                                                                                                                                                                                                                    |   |   | Account Number: |   |
| City and State:                                                                                                                                                                                                                                                                                                      |   |   |   |   |
|                                                                                                                                                                                                                                                                                                                 |   |   |
| Beneficiary Bank Transit (ABA) #:                                                                                                                                                                                                                                                                                    |   |   | Beneficiary Bank Code (Swift, Sort, Chip, etc.): |   |
|                                                                                                                                                                                                                                                                                                                 |   |   | **(For  International Wire Only)** |
|                                                                                                                                                                                                                                                                                                                 |   |   |
| Intermediary Bank:                                                                                                                                                                                                                                                                                                   |   |   | Transit (ABA) #: |   |
| For Further Credit to:                                                                                                                                                                                                                                                                                               |   |   |   |   |
|                                                                                                                                                                                                                                                                                                                 |   |   |
| Special Instruction:                                                                                                                                                                                                                                                                                                 |   |   |   |
|                                                                                                                                                                                                                                                                                                                 |   |   |
| *By signing below**,** I (we)  acknowledge and agree that my (our) funds transfer request shall be processed  in accordance with and subject to the terms and conditions set forth in the  agreements(s) covering funds transfer service(s), which agreements(s) were  previously received and executed by me (us).* |
|                                                                                                                                                                                                                                                                                                                 |   |   |
|                                                                                                                                                                                                                                                                                                                 |   |   |
| Authorized Signature:                                                                                                                                                                                                                                                                                                |   |   | 2nd Signature (if required): |   |
| Print Name/Title:                                                                                                                                                                                                                                                                                                    |   |   | Print Name/Title: |   |
| Telephone  #:                                                                                                                                                                                                                                                                                                        |   |   | Telephone |   |
|                                                                                                                                                                                                                                                                                                                      |        |        |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

----

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

 

1

----

 

**EXHIBIT C**

 

**BORROWING BASE CERTIFICATE**

 

Borrower:                                            CALIPER LIFE SCIENCES, INC., NOVASCREENBIOSCIENCES CORPORATION, XENOGEN CORPORATION and XENOGEN BIOSCIENCESCORPORATION

Lender:                                                        SILICON VALLEY BANK

CommitmentAmount:                            $25,000,000.00

 
| ACCOUNTS RECEIVABLE                                   |   |                                                                     |   |
|-------------------------------------------------------|--------|--------------------------------------------------------------------------|--------|
| 1.                                                    |   | Accounts Receivable Book  Value as of                                    |   | $ |   |
| 2.                                                    |   | Additions (please explain  on reverse)                                   |   | $ |   |
| 3.                                                    |   | TOTAL ACCOUNTS RECEIVABLE                                                |   | $ |   |
|                                                  |   |                                                                     |   | $ |   |
| ACCOUNTS RECEIVABLE  DEDUCTIONS (without duplication) |   |                                                                     |   |
| 4.                                                    |   | Amounts over 90 days due                                                 |   | $ |   |
| 5.                                                    |   | Balance of 50% over 90 day  accounts                                     |   | $ |   |
| 6.                                                    |   | Credit balances over 90  days                                            |   | $ |   |
| 7.                                                    |   | Concentration Limits                                                     |   | $ |   |
| 8.                                                    |   | Foreign Accounts (only if  specifically deemed ineligible by Bank)       |   | $ |   |
| 9.                                                    |   | Governmental Accounts  (only if specifically deemed ineligible by Bank)  |   | $ |   |
| 10.                                                   |   | Contra Accounts                                                          |   | $ |   |
| 11.                                                   |   | Promotion or Demo Accounts                                               |   | $ |   |
| 12.                                                   |   | Intercompany/Employee  Accounts                                          |   | $ |   |
| 13.                                                   |   | Disputed Accounts                                                        |   | $ |   |
| 14.                                                   |   | Deferred Revenue                                                         |   | $ |   |
| 15.                                                   |   | Other (please explain on  reverse)                                       |   | $ |   |
| 16.                                                   |   | TOTAL ACCOUNTS RECEIVABLE  DEDUCTIONS                                    |   | $ |   |
| 17.                                                   |   | Eligible Accounts (#3  minus #16)                                        |   | $ |   |
| 18.                                                   |   | ELIGIBLE AMOUNT OF  ACCOUNTS (80% of #17, plus 90% of Unrestricted Cash) |   | $ |   |
|                                                  |   |                                                                     |   |   |   |
| BALANCES                                              |   |                                                                     |   |
| 19.                                                   |   | Maximum Loan Amount                                                      |   | $ |   |
| 20.                                                   |   | Total Funds Available  (Lesser of #18 or #19)                            |   | $ |   |
| 21.                                                   |   | Present balance owing on  Line of Credit                                 |   | $ |   |
| 22.                                                   |   | Outstanding under  Sublimits                                             |   | $ |   |
| 23.                                                   |   | RESERVE  POSITION (#20 minus #21 and #22)                                |   | $ |   |

 

*The undersigned represents andwarrants that this is true, complete and correct, and that the information inthis Borrowing Base Certificate complies with the representations andwarranties in the Loan and Security Agreement between the undersigned andSilicon Valley Bank.*

 
|              |   | **BANK USE ONLY**             |
|-------------------|--------|-------------------------------|
| COMMENTS:         |   | Received by:                  |   |
|              |   | AUTHORIZED SIGNER   |
|              |   | Date:                         |   |
| By:               |   |                          | Verified: |   |
| Authorized Signer |   | AUTHORIZED SIGNER   |
| Date:             |   |                          | Date: |   |
|              |   | Compliance Status:            | Yes o | No o |
|                   |        |                               |  |  |  |  |  |  |  |  |

 

1

----

 

**EXHIBIT D**

** **

**COMPLIANCE CERTIFICATE**

 
| TO:    |   | SILICON  VALLEY BANK                | Date:  |   |
|--------|--------|-------------------------------------|--------|--------|
| FROM:  |   | CALIPER  LIFE SCIENCES, INC.        |   |   |
|   |   | NOVASCREEN  BIOSCIENCES CORPORATION |   |   |
|   |   | XENOGEN  CORPORATION                |   |   |
|   |   | XENOGEN  BIOSCIENCES CORPORATION    |   |   |

 

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

 

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

 
| **Reporting Covenant**                                 | ** ** | **Required**                                                                                                                         | ** ** | **Complies** |
|-------------------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------|------------|--------------|
| ** **                                                  | ** ** | ** **                                                                                                                           | ** ** | ** **   |
| Quarterly financial statements with Compliance  Certificate |       | Quarterly  within 45 days                                                                                                            |       | Yes o No o   |
| Annual  financial statement (CPA Audited)                   |       | FYE  within 120 days                                                                                                                 |       | Yes o No o   |
| Board  Approved Projections                                 |       | Annually,  as revised                                                                                                                |       | Yes o No o   |
| Audit                                                       |       | Annually                                                                                                                             |       | Yes o No o   |
| Borrowing  Base Certificate & A/R Agings           |       | Monthly  within 30 days (when Unrestricted Cash < $25,000,000.00 and months in  which Credit Extensions requested or outstanding) |       | Yes o No o   |
| Cash  Report                                                |       | Monthly  within 15 days                                                                                                              |       | Yes o No o   |

 
| **Financial Covenant**                | ** ** | **Required** | ** ** | **Actual** | ** ** | **Complies** |
|--------------------------------------------|------------|--------------|------------|------------|------------|--------------|
|                                       |       |         |       |       |       |         |
| Maintain  at all times (tested quarterly): | ** ** | ** **   | ** ** | ** ** | ** ** | ** **   |
| Minimum  Adjusted Quick Ratio              |       | : 1.0        | *          | :1.0       |       | Yes o No o   |
| Minimum  EBITDA-Cap Ex                     |       | $            |       | **         | $          |         | Yes o No o |
|                                            |            |              |            |            |            |              |  |

 

----

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

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

 

1

----

 

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

 

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

 

 
| Caliper  Life Sciences, Inc.   | ** ** | **BANK USE ONLY** |
|-------------------------------------|------------|-------------------|
|                                |       | ** **        |
| By:                                 |       |              | Received  by: |   |
| Name:                               |       |              |   | AUTHORIZED  SIGNER |
| Title:                              |       |              | Date: |   |
|                                |       |              |
| NovaScreen  Biosciences Corporation |       | Verified:         |   |
|                                |       |              | AUTHORIZED  SIGNER |
| By:                                 |       |              | Date: |   |
| Name:                               |       |              |   |
| Title:                              |       |              | Compliance  Status: | Yes  o | No  o |
|                                |       |              |
| Xenogen  Corporation                |       |              |
|                                |       |              |
| By:                                 |       |              |   |
| Name:                               |       |              |   |
| Title:                              |       |              |   |
|                                |       |              |
| Xenogen  Biosciences Corporation    |       |              |
|                                |       |              |
| By:                                 |       |              |   |
| Name:                               |       |              |   |
| Title:                              |       |              |   |
|                                     |            |                   |  |  |  |  |  |  |  |  |  |  |  |

 

2

----

 

**Schedule 1to Compliance Certificate**

 

**FinancialCovenants of Borrower**

 

Dated:

 

Inthe event of a conflict between this Schedule and the Loan Agreement, the termsof the Loan Agreement shall control.

 

**I.**                                         **ADJUSTED QUICK RATIO**

 
| A.     |   | Aggregate  value of the Unrestricted Cash and Cash Equivalents and Marketable Securities  of Borrower                                                                                            |   | $      |   |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------|
|   |   |                                                                                                                                                                                             |   |   |   |
| B.     |   | Aggregate  value of the net billed accounts receivable and Unbilled Accounts of Borrower                                                                                                         |   | $      |   |
|   |   |                                                                                                                                                                                             |   |   |   |
| C.     |   | Quick  Assets (the sum of lines A and B)                                                                                                                                                         |   | $      |   |
|   |   |                                                                                                                                                                                             |   |   |   |
| D.     |   | Aggregate  value of Obligations to Bank                                                                                                                                                          |   | $      |   |
|   |   |                                                                                                                                                                                             |   |   |   |
| E.     |   | Aggregate  value of liabilities of Borrower (including all Indebtedness)that matures within one (1) year and  current portion of Subordinated Debt permitted by Bank to be paid by Borrower |   | $      |   |
|   |   |                                                                                                                                                                                             |   |   |   |
| F      |   | Aggregate  value of (i) Deferred Revenue, (ii) real estate related  restructuring expenses, and (iii) customer deposits                                                           |   |   |   |
|   |   |                                                                                                                                                                                             |   |   |   |
| G.     |   | Quick  Liabilities (the sum of lines D and E minus line F)                                                                                                                                       |   | $      |   |
|   |   |                                                                                                                                                                                             |   |   |   |
| H.     |   | Adjusted  Quick Ratio (line C divided by line G)                                                                                                                                                 |   |   |   |

 

Isline H equal to or greater than:

 

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

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

 
| o No, not in compliance | o Yes, in compliance |
|------------------------------|---------------------------|

 

**II.**                                     **MINIMUM****EBITDA minus CAP-EX**

 

Required:

 
| A.     |   | Net  Income                                                 |                                       | $      |   |
|--------|--------|-------------------------------------------------------------|--------------------------------------------|--------|--------|
|   |   |                                                        |                                       |   |   |
| B.     |   | Interest  Expense                                           |                                       | $      |   |
|   |   |                                                        |                                       |   |   |
| C.     |   | To  the extent included in the determination of Net Income: |                                       |   |   |
|   |   |                                                        |                                       |   |   |
|   |   | 1.                                                          | Depreciation  expense                      |   | $      |   |
|   |   |                                                        |                                       |   |   |   |
|   |   | 2.                                                          | Amortization  expense                      |   | $      |   |
|   |   |                                                        |                                       |   |   |   |
|   |   | 3.                                                          | Non-cash  stock-based compensation expense |   | $      |   |
|   |   |                                                        |                                       |   |   |
| D.     |   | income  tax expense                                         |                                       | $      |   |

 

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| E.     |   | without  duplication, restructuring charges and litigations charges not to exceed  $5,000,000 in the aggregate (for the quarters ending March 31, 2008,  June 30, 2008 and September 30, 2008) |   | $      |   |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------|
|   |   |                                                                                                                                                                                                          |   |   |   |
| F.     |   | EBITDA  (line A, plus line B, plus line C.1, plus line C.2, plus line C.3, plus line  D, and plus line E)                                                                                                     |   | $      |   |
|   |   |                                                                                                                                                                                                          |   |   |   |
| G.     |   | capital  expenditures                                                                                                                                                                                         |   | $      |   |
|   |   |                                                                                                                                                                                                          |   |   |   |
| H.     |   | EBIDTA  minus CAP EX (line F minus line G)                                                                                                                                                                    |   | $      |   |

 
| Is  line H equal to or greater than: |   | (a) ($7,000,000)  for the two-quarter period ending 3/31/08  |
|--------------------------------------|--------|-------------------------------------------------------------------|
|                                 |   | (b) ($10,000,000)  for the two-quarter period ending 6/30/08 |
|                                 |   | (c) ($3,000,000)  for the two-quarter period ending 9/30/08  |
|                                 |   | (d) $2,000,000  for the two-quarter period ending 12/31/08   |
|                                 |   | (e) ($2,500,000)  for the two-quarter period ending 3/31/09  |

 
| o No, not in compliance | o Yes, in compliance |
|------------------------------|---------------------------|

 

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**SCHEDULE 12.13**

 

**Caliper Life Sciences, Inc.**

 

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

 

(1)                                  Bank Accounts –Wachovia, SVB

 

(2)                                  Investment Accounts –SVB Asset Management

 

(3)                                  Payroll Accounts –SVB

 

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

 

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

 
| **Mailing Address** | ** ** | **City**       | ** ** | **State** |
|--------------------------|------------|----------------|------------|-----------|
| 605  Fairchild Drive     |       | Mountain  View |       | CA        |
| 7170  Standard Dive      |       | Hanover        |       | MD        |
| 2061  Challenger Drive   |       | Alameda        |       | CA        |
| 5 Cedar Brook Drive      |       | Cranbury       |       | NJ        |

 

**NovaScreen Biosciences Corporation**

 

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

 

(1)                                  Bank Accounts – SVB

 

(2)                                  Investment Accounts –

 

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

 

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

 

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