IN THE STATE OF DELAWARE.
6.10
FURTHER ASSURANCES.
BORROWER SHALL EXECUTE ANY FURTHER INSTRUMENTS
AND TAKE FURTHER ACTION AS BANK REASONABLY REQUESTS TO PERFECT OR CONTINUE
BANK'S LIEN IN THE COLLATERAL OR TO EFFECT THE PURPOSES OF THIS AGREEMENT.
10
7
NEGATIVE COVENANTS
Borrower shall not do any of the following without Bank's prior written consent,
which shall not be unreasonably withheld or delayed:
7.1
DISPOSITIONS.
CONVEY, SELL, LEASE, TRANSFER OR OTHERWISE DISPOSE
OF (COLLECTIVELY, "TRANSFER"), OR PERMIT ANY OF ITS SUBSIDIARIES TO TRANSFER,
ALL OR ANY PART OF ITS BUSINESS OR PROPERTY, EXCEPT FOR TRANSFERS (A) OF
INVENTORY IN THE ORDINARY COURSE OF BUSINESS; (B) OF WORN-OUT OR OBSOLETE
EQUIPMENT; (C) EQUIPMENT AND INTELLECTUAL PROPERTY NO LONGER NECESSARY OR USEFUL
IN THE CONDUCT OF BORROWER'S BUSINESS, UP TO A MAXIMUM AGGREGATE AMOUNT OF ONE
MILLION DOLLARS ($1,000,000.00) PER ANNUM; (D) IN CONNECTION WITH PERMITTED
LIENS AND PERMITTED INVESTMENTS; (E) OF LICENSES FOR THE USE OF THE PROPERTY OF
BORROWER OR ITS SUBSIDIARIES IN THE ORDINARY COURSE OF BUSINESS; AND (F)
CROSS-LICENSES ENTERED INTO IN THE SETTLEMENT OF LITIGATION OR THREATENED OR
POTENTIAL LITIGATION AND CONSISTENT WITH BORROWER'S PAST PRACTICES.
7.2
CHANGES IN BUSINESS, MANAGEMENT, OWNERSHIP, OR BUSINESS LOCATIONS.
(A) ENGAGE IN OR PERMIT ANY OF ITS SUBSIDIARIES TO ENGAGE IN ANY BUSINESS OTHER
THAN THE BUSINESSES CURRENTLY ENGAGED IN BY BORROWER AND SUCH SUBSIDIARY, AS
APPLICABLE, OR REASONABLY RELATED THERETO; (B) LIQUIDATE OR DISSOLVE; OR (C)
ENTER INTO ANY TRANSACTION OR SERIES OF RELATED TRANSACTIONS IN WHICH THE
STOCKHOLDERS OF BORROWER IMMEDIATELY PRIOR TO THE FIRST SUCH TRANSACTION OWN
LESS THAN 51% OF THE VOTING STOCK OF BORROWER IMMEDIATELY AFTER GIVING EFFECT TO
SUCH TRANSACTION OR RELATED SERIES OF SUCH TRANSACTIONS (OTHER THAN BY THE SALE
OF BORROWER'S EQUITY SECURITIES IN A PUBLIC OFFERING OR TO VENTURE CAPITAL
INVESTORS SO LONG AS BORROWER IDENTIFIES TO BANK THE VENTURE CAPITAL INVESTORS
PRIOR TO THE CLOSING OF THE TRANSACTION).
BORROWER SHALL NOT, WITHOUT AT LEAST
TEN (10) DAYS PRIOR WRITTEN NOTICE TO BANK: (1) ADD ANY NEW OFFICES OR BUSINESS
LOCATIONS AT WHICH ANY MATERIAL AMOUNT OF INVENTORY OR EQUIPMENT WILL BE
LOCATED, (2) CHANGE ITS JURISDICTION OF ORGANIZATION, (3) CHANGE ITS
ORGANIZATIONAL STRUCTURE OR TYPE, (4) CHANGE ITS LEGAL NAME, OR (5) CHANGE ANY
ORGANIZATIONAL NUMBER (IF ANY) ASSIGNED BY ITS JURISDICTION OF ORGANIZATION.
7.3
MERGERS OR ACQUISITIONS.
WITHOUT BANK'S PRIOR WRITTEN CONSENT,
WHICH SHALL NOT BE UNREASONABLY WITHHELD, MERGE OR CONSOLIDATE, OR PERMIT ANY OF
ITS SUBSIDIARIES TO MERGE OR CONSOLIDATE, WITH ANY OTHER PERSON, OR ACQUIRE, OR
PERMIT ANY OF ITS SUBSIDIARIES TO ACQUIRE, ALL OR SUBSTANTIALLY ALL OF THE
CAPITAL STOCK OR PROPERTY OF ANOTHER PERSON, EXCEPT (I) THE ACQUISITION OF
XENOGEN PURSUANT TO THE CALIPER/XENOGEN MERGER AGREEMENT, (II) WHERE (A) THE
AGGREGATE PURCHASE PRICE OR OTHER CONSIDERATION FOR SUCH TRANSACTIONS DOES NOT
EXCEED $5,000,000.00, IN THE CASE OF A CASH TRANSACTION OR $15,000,000.00 IN THE
CASE OF A STOCK TRANSACTION, (B) NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OR WOULD RESULT FROM THE