10-Q

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-Q

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2006

OR

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from __________ to __________

Commission File Number 001-10109

BECKMAN COULTER, INC.

(Exact name of registrant as specified in its charter)

Delaware	95-104-0600
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)
4300 N. Harbor Boulevard, Fullerton, California	92834-3100
(Address of principal executive offices)	(Zip Code)

(714) 871-4848

(Registrant’s telephone number, including area code)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  x    No  ¨.

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer  x            Accelerated filer  ¨            Non-accelerated filer  ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes  ¨    No  x.

The number of outstanding shares of the registrant’s common stock as of October 27, 2006 was 62,287,300 shares.

Part I. Financial Information

Item 1. Financial Statements

BECKMAN COULTER, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(in millions)

(unaudited)

	September 30, 2006	December 31, 2005
Assets
Current assets:
Cash and cash equivalents	$      69.1	$      57.6
Trade and other receivables, net	598.0	601.6
Inventories	528.4	461.8
Other current assets	115.1	112.6
Total current assets	1,310.6	1,233.6
Property, plant and equipment, net	652.9	552.5
Goodwill	579.9	548.2
Other intangibles, net	341.8	354.5
Other assets	299.8	338.8
Total assets	$ 3,185.0	$ 3,027.6
Liabilities and Stockholders’ Equity
Current liabilities:
Accounts payable, accrued expenses and other liabilities	$    543.4	$    555.2
Notes payable and current maturities of long-term debt	89.1	155.2
Income taxes payable	55.5	48.1
Total current liabilities	688.0	758.5
Long-term debt, less current maturities	707.3	589.1
Deferred income taxes	189.3	189.3
Other liabilities	310.9	295.9
Total liabilities	1,895.5	1,832.8
Commitments and contingencies (Note 12)
Stockholders’ equity:
Preferred stock, $0.10 par value; authorized 10.0 shares; none issued	—	—
Common stock, $0.10 par value; authorized 300.0 shares; shares issued 68.2 and 67.4 at September 30, 2006 and December 31, 2005, respectively; 62.2 and 62.4 shares outstanding at September 30, 2006 and December 31, 2005, respectively	6.8	6.7
Additional paid-in capital	471.4	449.8
Retained earnings	1,029.4	932.9
Accumulated other comprehensive income (loss):
Cumulative foreign currency translation adjustment	70.2	38.3
Derivatives qualifying as hedges	(2.8)	2.8
Minimum pension liability adjustment	(3.8)	(3.6)
Treasury stock, at cost: 5.7 and 4.7 common shares at September 30, 2006 and December 31, 2005, respectively	(281.7)	(228.7)
Unearned compensation	—	(3.4)
Common stock held in grantor trust, at cost: 0.3 common shares at September 30, 2006 and December 31, 2005	(16.5)	(15.7)
Grantor trust liability	16.5	15.7
Total stockholders’ equity	1,289.5	1,194.8
Total liabilities and stockholders’ equity	$ 3,185.0	$ 3,027.6

See accompanying notes to condensed consolidated financial statements.

2

BECKMAN COULTER, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(in millions, except amounts per share and share data)

(unaudited)

	Three Months Ended September 30,						Nine Months Ended September 30,
	2006			2005			2006			2005
Product revenue	$	531.2		$	501.4		$	1,522.4		$	1,507.7
Service revenue		100.0			92.0			294.1			280.6
Total revenue		631.2			593.4			1,816.5			1,788.3
Cost of goods sold		261.9			248.9			741.0			751.7
Cost of service		71.6			68.7			212.1			204.6
Total cost of sales		333.5			317.6			953.1			956.3
Gross profit		297.7			275.8			863.4			832.0
Operating costs and expenses:
Selling, general and administrative		175.0			159.0			515.0			468.2
Research and development		80.9			51.6			207.3			149.7
Restructuring		4.4			0.9			11.7			0.9
Litigation settlement		—			—			(35.0	)		—
Asset impairments		—			13.4			2.3			13.4
Total operating costs and expenses		260.3			224.9			701.3			632.2
Operating income		37.4			50.9			162.1			199.8
Non-operating (income) expenses:
Interest income		(3.2	)		(5.0	)		(10.9	)		(13.4	)
Interest expense		12.5			12.4			39.0			33.7
Other, net		3.8			(0.1	)		2.7			13.7
Total non-operating expenses		13.1			7.3			30.8			34.0
Earnings from continuing operations before income taxes		24.3			43.6			131.3			165.8
Income taxes		6.6			7.4			35.4			33.0
Earnings from continuing operations		17.7			36.2			95.9			132.8
Earnings from discontinued operations, net of tax		29.7			—			28.7			—
Net income	$	47.4		$	36.2		$	124.6		$	132.8
Basic earnings per share:
Earnings from continuing operations	$	0.28		$	0.58		$	1.53		$	2.13
Earnings from discontinued operations		0.48			—			0.46			—
Net basic earnings per share	$	0.76		$	0.58		$	1.99		$	2.13
Diluted earnings per share:
Earnings from continuing operations	$	0.28		$	0.56		$	1.50		$	2.05
Earnings from discontinued operations		0.46			—			0.45			—
Net diluted earnings per share	$	0.74		$	0.56		$	1.95		$	2.05
Weighted average number of shares outstanding (in thousands):
Basic		62,427			62,361			62,636			62,216
Diluted		63,755			64,610			64,003			64,905
Dividends declared per share	$	0.15		$	0.14		$	0.45		$	0.42

See accompanying notes to condensed consolidated financial statements.

3

BECKMAN COULTER, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in millions)

(unaudited)

	Nine Months Ended September 30,
	2006			2005
Cash Flows from Operating Activities:
Net earnings from continuing operations	$	95.9		$	132.8
Adjustments to reconcile net earnings from continuing operations to net cash provided by operating activities
Depreciation and amortization		129.7			105.0
Amortization of stock-based compensation		17.4			0.8
Asset impairment charge		2.3			13.4
U.S. Pension Trust contributions		(23.0	)		—
Deferred income taxes, net		—			(1.3	)
Changes in assets and liabilities:
Trade and other receivables		35.9			78.7
Inventories		(44.8	)		(42.6	)
Accounts payable and accrued expenses		(35.2	)		(27.5	)
Income taxes payable		8.0			(0.2	)
Long-term lease receivables, net		29.3			0.3
Other		29.9			18.5
Net cash provided by operating activities of continuing operations		245.4			277.9
Net cash used in operating activities of discontinued operations		(21.3	)		—
Net cash provided by operating activities		224.1			277.9
Cash Flows from Investing Activities:
Additions to property, plant and equipment		(218.4	)		(155.7	)
Payments for business acquisitions and intangible assets		(23.9	)		(106.0	)
Net cash used in investing activities of continuing activities		(242.3	)		(261.7	)
Net cash provided by investing activities of discontinued operations		50.2			—
Net cash used in investing activities		(192.1	)		(261.7	)
Cash Flows from Financing Activities:
Dividends to stockholders		(28.2	)		(26.5	)
Proceeds from issuance of stock		36.7			52.6
Repurchase of common stock as treasury stock		(87.2	)		(64.0	)
Repurchase of common stock held in grantor trust		(0.8	)		—
Tax benefits from share-based payment transactions		4.6			—
Notes payable borrowings, net		111.4			36.0
Long-term debt reductions		(61.0	)		(19.9	)
Net cash used in financing activities		(24.5	)		(21.8	)
Effect of exchange rates on cash and cash equivalents		4.0			(3.0	)
Increase (decrease) in cash and cash equivalents		11.5			(8.6	)
Cash and cash equivalents – beginning of period		57.6			67.9
Cash and cash equivalents – end of period	$	69.1		$	59.3

See accompanying notes to condensed consolidated financial statements.

4

BECKMAN COULTER, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

1. Basis of Presentation and Accounting Policies

The management of Beckman Coulter, Inc. and its wholly-owned subsidiaries (the “Company”) prepared the accompanying Condensed Consolidated Financial Statements following the requirements of the United States Securities and Exchange Commission for interim reporting. As permitted under those rules, certain footnotes or other financial information normally required by generally accepted accounting principles in the United States (“U.S.”) have been condensed or omitted.

The financial statements include all normal and recurring adjustments that the management of the Company considers necessary for the fair presentation of its financial position and operating results. To obtain a more detailed understanding of the Company’s results, these Condensed Consolidated Financial Statements should be read in conjunction with the consolidated financial statements and notes in the Company’s annual report on Form 10-K for the year ended December 31, 2005.

Revenue, expenses, assets and liabilities can vary between the quarters of the year. Therefore, results and trends in these interim financial statements may not be the same as those for the full year.

Income Taxes

At the end of each interim reporting period an estimate is made of the effective tax rate expected to be applicable for the full year. The estimated effective tax rate determined, which includes changes in tax reserves, is used to provide for income taxes on a year-to-date basis and the tax effect of any tax law changes and certain other discrete events are reflected in the period in which they occur.

Share-Based Compensation

On January 1, 2006, the Company adopted Statement of Financial Accounting Standards No. 123(R) “Share-Based Payment” (“SFAS No. 123(R)”). This Statement revises SFAS No. 123 and supersedes APB No. 25. SFAS No. 123(R) focuses primarily on the accounting for transactions in which an entity obtains employee services in share-based payment transactions. SFAS No. 123(R) requires companies to recognize in the statement of operations the cost of employee services received in exchange for awards of equity instruments based on the grant-date fair value of those awards. The Company uses the Black-Scholes-Merton (“BSM”) option-pricing model to determine the fair-value of share-based awards under SFAS No. 123(R). Additionally, the Company has elected the modified prospective transition method as permitted by SFAS No. 123(R) and accordingly prior periods have not been restated to reflect the impact of SFAS No. 123(R). The modified prospective transition method requires that share-based compensation expense be recorded for all new and unvested stock options, nonvested stock awards and employee stock purchase plan shares that are ultimately expected to vest as the requisite service is rendered beginning on January 1, 2006. Share-based compensation expense for awards granted prior to January 1, 2006 is based on the grant date fair-value as determined under the pro forma provisions of SFAS No. 123, see Note 10 “Share-Based Compensation”.

Discontinued Operations

In May 2005, the Company purchased 100% of the outstanding shares of Agencourt Bioscience Corporation (“Agencourt”). As part of the acquisition, the Company received a 49% interest in Agencourt Personal Genomics (“APG”), a subsidiary of Agencourt. APG, a development stage enterprise involved in research and development activities, is a Variable Interest Entity as defined by FASB Interpretation No. 46 (R), “Consolidation of Variable Interest Entities” (“FIN 46(R)”). The Company consolidated the results of operations of APG, as the Company was the primary beneficiary and the party most closely associated with APG.

5

On July 7, 2006, APG was sold, generating proceeds of $114.0 million, which were allocated to the shareholders of APG. An additional $6.0 million is in escrow. The Company received approximately $50.0 million in cash based on its diluted interest of 44%. Gain from sale and operating results of APG for the periods presented are excluded from continuing operations and are included in discontinued operations in the condensed consolidated statements of operations for the three and nine months ended September 30, 2006. Prior year results for APG were not reclassified as amounts were not material. Prior to the sale, the Company’s ownership interest was reduced from 49% to 44%, as a result of stock options and restricted stock that were granted to certain employees. APG recognized approximately $8.9 million in compensation costs related to accelerated restricted stock and stock option awards. The Company’s share of this compensation expense was $3.9 million. Minority interest share of losses for the three and nine months ended was $5.0 million and $6.3 million, respectively. The Company recognized a gain from sale of APG, net of the loss from discontinued operations, of $29.7 million and $28.7 million, net of taxes, for the three and nine months ended September 30, 2006, respectively.

Summary financial information for discontinued operations, net of minority interest, is as follows (in millions):

	Three Months ended September 30, 2006	Nine Months ended September 30, 2006
Net loss from discontinued operations	$  (3.9)	$  (5.2)
Benefit for income taxes	0.0	0.5
Net loss	(3.9)	(4.7)
Gain from sale	53.7	53.4
Provision for income taxes	(20.1)	(20.0)
Net gain on disposal	33.6	33.4
Earnings from discontinued operations, net of tax	$  29.7	$  28.7

Recent Accounting Developments

Pension and Other Postretirement Accounting

On September 29, 2006, the FASB issued FASB Statement No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans — an amendment of FASB Statements No. 87, 88, 106, and 132(R)” (“SFAS No. 158”). This new standard requires an employer to: (a) recognize in its statement of financial position an asset for a plan’s overfunded status or a liability for a plan’s underfunded status; (b) measure a plan’s assets and its obligations that determine its funded status as of the end of the employer’s fiscal year (with limited exceptions); and (c) recognize changes in the funded status of a defined benefit postretirement plan in the year in which the changes occur. The requirement to recognize the funded status of a benefit plan and the disclosure requirements are effective as of the end of the fiscal year ending after December 15, 2006. The requirement to measure plan assets and benefit obligations as of the date of the employer’s fiscal year-end statement of financial position is effective for fiscal years ending after December 15, 2008. The Company is currently evaluating the impact of adopting SFAS No. 158 on its consolidated results of operations and financial position.

6

Financial Statement Misstatements

In September 2006, the SEC staff issued Staff Accounting Bulletin (“SAB”) No. 108, “Considering the Effects of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statements” (“SAB 108”). The SEC staff is providing guidance on how prior year misstatements should be taken into consideration when quantifying misstatements in current year financial statements for purposes of determining whether the current year’s financial statements are materially misstated. SAB 108 provides that once a current year misstatement has been quantified, the guidance in SAB No. 99, “Materiality” (“SAB 99”) should be applied to determine whether the misstatement is material and should result in an adjustment to the financial statements. If correcting a misstatement in the current year would materially misstate the current year’s income statement, the SEC staff indicates that the prior year financial statements should be adjusted. In making these adjustments, previously filed reports do not need to be amended. Instead, the adjustments should be reflected the next time the registrant would otherwise be filing those prior year financial statements. If in the current year, however, the registrant identifies a misstatement that is material to those prior year financial statements, the registrant would be required to restate for the material misstatement in accordance with FASB Statement No. 154, “Accounting Changes and Error Corrections”. This guidance is effective for an interim period of the first fiscal year ending after November 15, 2006. The Company is currently evaluating the impact of adopting SAB 108 on its consolidated results of operations and financial position.

Accounting for Uncertainty in Income Taxes

In June 2006, the FASB issued Interpretation No. 48, “Accounting for Uncertainty in Income Taxes, an interpretation of FASB Statement No. 109,” (“FIN 48”). The interpretation prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. It also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition. This Interpretation is effective for fiscal years beginning after December 15, 2006. The Company is currently evaluating the impact of FIN 48 on its consolidated results of operations and financial position.

Accounting for Servicing of Financial Assets

In March 2006, the FASB issued SFAS No. 156, “Accounting for Servicing of Financial Assets—an amendment of FASB Statement No. 140” (“SFAS No. 156”). This Statement amends SFAS No. 140, “Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities,” with respect to the accounting for separately recognized servicing assets and servicing liabilities. SFAS No. 156 requires that an entity recognize a servicing asset or servicing liability each time it undertakes an obligation to service a financial asset by entering into a servicing contract and that the separately recognized servicing asset or servicing liability be initially measured at fair value, if practicable. This Statement is effective as of the beginning of the first fiscal year that begins after September 15, 2006. The Company is currently evaluating the impact of the adoption of SFAS No. 156 on its consolidated results of operations and financial position.

Changes in Presentation

Certain prior year amounts have been reclassified to conform to current year presentation.

2. Restructuring Activities and Asset Impairments

In July 2005, the Company announced a strategic reorganization of its business to combine its Biomedical Research Division and Diagnostic Division into a single company structure. The objective of the restructure is to better enable the Company to leverage its personnel, technologies and products across the entire biomedical testing continuum. As a result of these activities, the Company expects to eliminate approximately 350 net positions worldwide.

7

A charge of $34.8 million was recorded in the second half of 2005 for severance and related benefits for affected employees. Additional charges of $0.8 million, $6.1 million and $2.6 million were recorded in the first, second and third quarters of 2006, respectively, for additional employees identified for layoff during these periods.

The following is a reconciliation of the accrual for employee severance and other related costs included in accrued expenses and other liabilities in the condensed consolidated balance sheets at December 31, 2005 and September 30, 2006 (in millions):

Initial Accrual		Cash Payments in 2005	Balance at December 31, 2005	Additional Charges	Cash Payments in 2006			Balance at September 30, 2006
$	34.8	($4.4)	$ 30.4	$ 9.5	$	(22.0	)	$ 17.9

Additionally, in connection with the restructuring activities, the Company exited certain non-strategic products and products under development and as a result, for the nine months ended September 30, 2006, recorded impairment charges of $2.3 million to write-off patents, licenses and other related assets. Charges of $4.4 million and $11.7 million for the three and nine months ended September 30, 2006, respectively were recorded for severance and other costs related to the restructuring. Additionally, during the third quarter of 2006, charges of $0.9 million were recorded to cost of goods sold for inventory write-offs related to a discontinued product line.

3. Derivatives

The Company uses derivative financial instruments to hedge foreign currency and interest rate exposures. The Company’s objectives for holding derivatives are to minimize currency and interest rate risks using effective methods to eliminate or reduce the impacts of these exposures. The Company does not speculate in derivative instruments in order to profit from foreign currency exchange or interest rate fluctuations; nor does the Company enter into trades for which there are no underlying exposures. The following discusses in more detail the Company’s foreign currency and interest rate exposures and related derivative instruments.

Foreign Currency

The Company manufactures its products principally in the U.S., but generated approximately 47% of its revenue in the first nine months of 2006 from sales made outside the United States by its international subsidiaries. Sales generated by the international subsidiaries generally are denominated in the subsidiary’s local currency, thereby exposing the Company to the risk of foreign currency fluctuations. In order to mitigate the impact of changes in foreign currency exchange rates, the Company uses derivative financial instruments (or “foreign currency contracts”) to hedge a significant portion of the foreign currency exposure resulting from intercompany sales to the Company’s international subsidiaries through their anticipated cash settlement date. These foreign currency contracts include forward and option contracts and are designated as cash flow hedges.

The Company uses foreign currency swap contracts to hedge loans between subsidiaries. These foreign currency swap contracts are designated as fair value hedges.

Hedge ineffectiveness associated with the Company’s cash flow and fair value hedges was immaterial and no cash flow or fair value hedges related to foreign currency were discontinued for the three and nine months ended September 30, 2006 and 2005.

8

Derivative gains and losses included in accumulated other comprehensive income (loss) are reclassified into other non-operating (income) expense upon the recognition of the hedged transaction. The Company estimates that $4.5 million of the unrealized gain included in accumulated other comprehensive income (loss) at September 30, 2006 will be reclassified to other non-operating (income) expense within the next twelve months. The actual amounts that will be reclassified to earnings over the next twelve months will vary from this amount as a result of changes in market rates.

Interest Rate

The Company uses interest rate derivative contracts on certain borrowing transactions to hedge its exposure to fluctuating interest rates. Interest differentials paid or received under these contracts are recognized as adjustments to the effective yield of the underlying financial instruments hedged.

In April 2002, in connection with the issuance of the Company’s $235.0 million Senior Notes due 2011, the Company entered into reverse interest rate swap contracts totaling $235.0 million. In September 2004, the Company terminated $95.0 million of these reverse interest rate swap contracts and in June 2006, terminated the remaining $140.0 million of these reverse interest swap contracts, resulting in deferred gains of $9.5 million and $1.7 million, respectively. The deferred gains are being amortized over the notes remaining term through November 2011. The Company received an average fixed interest rate of 5.7% and paid a floating interest rate based on LIBOR (5.17% as set on May 15, 2006). These reverse interest rate swaps were designated as fair value hedges and were deemed perfectly effective.

In March 1998, in connection with the issuance of $240.0 million Senior Notes due 2008, the Company entered into reverse interest rate swap contracts totaling $240.0 million. In April 2002, the Company terminated these reverse interest rate swap contracts, resulting in a deferred gain of $10.4 million that is being amortized over the remaining term through March 2008.

4. Comprehensive Income

The reconciliation of net income to comprehensive income is as follows (in millions):

	Three Months Ended September 30,						Nine Months Ended September 30,
	2006			2005			2006			2005
Net income	$	47.4		$	36.2		$	124.6		$	132.8
Foreign currency translation adjustment		5.6			(1.3	)		31.9			(33.2	)
Derivatives qualifying as hedges:
Net derivative gains (losses), net of income taxes of $0.3 and $(1.3) for the three and nine months ended September 30, 2006, respectively, and $0.4 and $4.5 for the three and nine months ended September 30, 2005, respectively.		0.2			0.6			(2.0	)		6.7
Reclassifications to non-operating income, net of income taxes of $(0.1) and $(2.4) for the three and nine months ended September 30, 2006, respectively, and $0.1 and $1.6 for the three and nine months ended September 30, 2005, respectively.		(0.1	)		0.1			(3.6	)		2.5
		0.1			0.7			(5.6	)		9.2
Comprehensive income	$	53.1		$	35.6		$	150.9		$	108.8

9

5. Earnings Per Share

The following is a reconciliation of the numerators and denominators used in computing basic and diluted earnings per share (“EPS”) (in millions, except amounts per share):

	Three Months Ended September 30,
	2006						2005
	Net Income		Shares	Per Share Amount			Net Income		Shares	Per Share Amount
Basic EPS:
Net earnings	$	47.4	62.427	$	0.76		$	36.2	62.361	$	0.58
Effect of dilutive stock options		—	1.328		(0.02	)		—	2.249		(0.02	)
Diluted EPS:
Net earnings	$	47.4	63.755	$	0.74		$	36.2	64.610	$	0.56
	Nine Months Ended September 30,
	2006						2005
	Net Income		Shares	Per Share Amount			Net Income		Shares	Per Share Amount
Basic EPS:
Net earnings	$	124.6	62.636	$	1.99		$	132.8	62.216	$	2.13
Effect of dilutive stock options		—	1.367		(0.04	)		—	2.689		(0.08	)
Diluted EPS:
Net earnings	$	124.6	64.003	$	1.95		$	132.8	64.905	$	2.05

For the three and nine months ended September 30, 2006, there were 2.8 million shares and 2.9 million, respectively, shares relating to the possible exercise of outstanding stock options excluded from the computation of diluted EPS as their effect would have been antidilutive. For the three and nine months ended September 30, 2005, there were 1.7 million shares and 1.6 million shares, respectively, relating to the possible exercise of outstanding stock options excluded from the computation of diluted EPS as their effect would have been antidilutive.

6. Sale of Assets

During the nine months ended September 30, 2006 and 2005, the Company sold certain receivables (“Receivables”). The net book value of these financial assets sold during the nine months ended September 30, 2006 and 2005 was $59.3 million and $100.6 million, respectively, for which the Company received approximately $59.4 million and $102.7 million, respectively, in cash proceeds. In 2006 and 2005, substantially all of these sales took place in Japan with a minor amount in the U.S. These transactions were accounted for as sales and as a result the related Receivables have been excluded from the accompanying condensed consolidated balance sheets.

The agreements underlying the Receivables sales in the U.S. contain provisions that indicate the Company is responsible for up to 15% of end-user customer payment defaults on Receivables. Accordingly, the Company accrued a reserve for the probable and reasonably estimable portion of these liabilities. Additionally, in the U.S., the Company services the Receivables whereby it continues collecting payments from the end user customer on behalf of the purchaser of the Receivables. The Company estimates the fair value of this service arrangement as a percentage of the Receivables and amortizes this amount to income over the estimated life of the service period. At September 30, 2006 and December 31, 2005, $0.9 million and $1.0 million, respectively, of deferred service fees were included in accrued expenses in the accompanying condensed consolidated balance sheets. For the three months ended September 30, 2006 and 2005, $0.2 million of deferred service fees was amortized to income. For the nine months ended September 30, 2006 and 2005, $0.4 million and $0.3 million, respectively, of deferred service fees were amortized to income.

10

7. Composition of Certain Financial Statement Items

Inventories consisted of the following (in millions):

	September 30, 2006	December 31, 2005
Finished products	$ 353.0	$ 310.2
Raw materials, parts and assemblies	151.3	135.7
Work in process	24.1	15.9
	$ 528.4	$ 461.8

Changes in the product warranty obligation were as follows (in millions):

	Three months ended September 30, 2006	Nine months ended September 30, 2006
Beginning Balance	$ 10.3	$ 11.7
New warranties expense	4.8	11.6
Payments	(4.3)	(12.5)
Ending Balance	$ 10.8	$ 10.8

The Company records a liability for product warranty obligations at the time of sale based upon historical warranty experience. The term of the warranty is generally twelve months. The Company also records an additional liability for specific warranty matters when they become known and are reasonably estimable. The Company’s product warranty obligations are included in accrued expenses in the condensed consolidated balance sheets.

In June 2006, in connection with the Company’s settlement agreement with Applera Corporation (“Applera”), the Company received a $35.0 million payment for the signing and release of any and all claims of infringement relating to certain DNA sequencer and thermal cycler products and will receive certain royalty payments upon Applera’s future sales of these products. Additionally, the Company will pay $18.0 million over the remaining nine quarters for license rights in the diagnostic market to specific Applera technology. In connection with the above, the Company recorded a $35.0 million gain and a $18.9 million research and development (“R&D”) charge (net present value of obligation) during the second quarter, as the technology for the license is under development and will require additional R&D by the Company. The $11.5 million long-term portion of the related liability is recorded in other liabilities in the condensed consolidated balance sheet at September 30, 2006. The license rights also include the obligation to pay royalties to Applera for instruments and reagents sold.

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8. Goodwill and Other Intangible Assets

Changes in the carrying amount of goodwill for the nine months ended September 30, 2006 were as follows (in millions):

	Total
Goodwill at December 31, 2005	$	548.2
Acquisitions		31.0
Currency translation adjustment		0.7
Goodwill at September 30, 2006	$	579.9

During 2006, in connection with the Company’s acquisition of Agencourt in 2005, $29.3 million of additional purchase price was recorded as a result of Agencourt meeting certain conditions as defined within the stock purchase agreement. The terms of the agreement provided for additional contingent payments, based on operating results and product development activities. Additional purchase price was included as a component of goodwill and the unpaid amount of $13.3 million is recorded as a liability in the condensed consolidated balance sheet at September 30, 2006.

In October 2006, the Company and former shareholders agreed that the remaining conditions under the terms of the agreement have been met and the additional purchase price of $8.7 million will be recorded in the fourth quarter 2006. Payments of $2.0 million and $6.7 million are due in November 2006 and January 2008, respectively.

During the third quarter 2006, the Company completed two acquisitions totaling $5.5 million. In connection with these acquisitions, the Company recorded assets and liabilities of $2.6 million and $0.3 million, respectively. The remaining purchase price of $3.2 million for both these acquisitions was allocated to goodwill. Additionally, terms for one of the acquisitions provided for contingent consideration payments up to $4.5 million. As conditions are met, payments will be capitalized and recorded to goodwill. The Company is currently in the process of finalizing its purchase allocation and expects to be completed with its valuation and final adjustments relating to goodwill, tangible and intangible assets during the fourth quarter of 2006.

The results of operations for both acquisitions have been included in the accompanying consolidated financial statements. Pro-forma results have not been presented as the results of operations for both acquisitions are not material in relation to the consolidated financial statements of the Company.

Other intangible assets consisted of the following (in millions):

	September 30, 2006			December 31, 2005
	Gross Carrying Amount	Accumulated Amortization	Net	Gross Carrying Amount	Accumulated Amortization	Net
Amortized intangible assets:
Technology	$   78.6	$   (19.1)	$   59.5	$   78.6	$ (14.8)	$   63.8
Customer contracts	184.9	(60.9)	124.0	184.9	(54.5)	130.4
Other	40.3	(22.1)	18.2	38.7	(18.5)	20.2
	303.8	(102.1)	201.7	302.2	(87.8)	214.4
Unamortized intangible assets:
Tradename	73.5	—	73.5	73.5	—	73.5
Core technology	66.6	—	66.6	66.6	—	66.6
	$ 443.9	$ (102.1)	$ 341.8	$ 442.3	$ (87.8)	$ 354.5

12

Intangible asset amortization expense was $4.7 million for the three months ended September 30, 2006 and 2005, respectively. For the nine months ended September 30, 2006 and 2005, intangible amortization expense was $13.9 million and $12.1 million, respectively. Estimated amortization expense (based on existing intangible assets) for the years ending December 31, 2006, 2007, 2008, 2009 and 2010 is $18.9 million, $18.0 million, $17.1 million, $16.1 million and $15.4 million, respectively.

9. Debt

On June 1, 2006, approximately $56.0 million of the Company’s $100.0 million debentures, bearing an interest rate of 7.05% per annum due June 1, 2026, were tendered by the holders of the debentures. The debentures were put under terms of the debentures agreement that allowed them to be repaid, in whole or in part, on June 1, 2006 at a redemption price of 103.9%. In connection with this redemption, the Company incurred approximately $2.7 million in debt extinguishment costs.

Certain of the Company’s borrowing agreements contain covenants that the Company must comply with, for example, a debt to earnings ratio and a minimum interest coverage ratio. At September 30, 2006, the Company was in compliance with all such covenants.

10. Share-Based Compensation

Effective January 1, 2006, the Company adopted SFAS No. 123(R). This statement establishes the financial accounting and reporting standards for share-based compensation plans. As required by SFAS No. 123(R), the Company recognizes the cost resulting from all share-based payment transactions in the financial statements at fair value. The compensation cost recognized in the condensed consolidated statement of operations for share-based compensation arrangements was approximately $6.8 million ($4.3 million after tax) for the three months ended September 30, 2006, and approximately $21.4 million ($13.7 million after tax) for the nine months ended September 30, 2006. No share-based compensation costs were capitalized as part of the cost of an asset for the quarter ended September 30, 2006, as such amounts were immaterial. Additionally, SFAS No. 123(R) requires that the tax benefit from the tax deduction related to share-based compensation that is in excess of recognized compensation costs be reported as a financing cash flow rather than an operating cash flow. Prior to January 1, 2006, the Company reported the entire tax benefit related to the exercise of stock options as an operating cash flow. The tax benefit from option exercises for the three and nine month periods ended September 30, 2006, was $1.9 million and $5.1 million, respectively.

Prior to January 1, 2006, the Company accounted for share-based employee compensation plans in accordance with APB Opinion No. 25 and provided the stock-based compensation plan disclosures required by SFAS No. 123. The following table sets forth the computation of basic and diluted income per share for the three and nine months ended September 30, 2005 and illustrates the effect on net income and income per share as if the Company had applied the fair value recognition provisions of SFAS No. 123 to stock-based employee compensation.

	Three months ended September 30, 2005	Nine months ended September 30, 2005
Net income-as reported	$ 36.2	$ 132.8
Stock-based employee compensation expense included in reported net income, net of tax	0.1	1.3
Pro forma compensation expense, net of tax	(1.8)	(20.6)
Pro forma net income	$ 34.5	$ 113.5
Earnings per share:
Basic-as reported	$ 0.58	$  2.13
Basic-pro forma	$ 0.55	$  1.82
Diluted-as reported	$ 0.56	$  2.05
Diluted-pro forma	$ 0.53	$  1.75

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The fair value of stock options granted during the three and nine months ended September 30, 2005 was estimated on the date of grant using the Black-Scholes Merton (“BSM”) option-pricing model with the following weighted average assumptions:

	Three months ended September 30, 2005	Nine months ended September 30, 2005
Option life (in years)	5.5	5.4
Risk-free interest rate	4.1%	3.8%
Stock price volatility	31.0%	31.6%
Dividend yield	1.01%	1.01%

SFAS No. 123(R) requires the use of a valuation model to calculate the fair value of share-based awards. The Company has elected to use the BSM option-pricing model, which incorporates various assumptions including volatility, expected life and interest rates. The expected volatility is based on a blending of the historical volatility of the Company’s stock over the most recent period commensurate with the expected life of the Company’s stock options and implied volatility based on market traded options of the Company’s common stock. This blend of historical and implied volatility is expected to be more reflective of future market conditions and a better indicator of expected volatility than using only historical volatility. The expected life of an award is based on historical experience and on the terms and conditions of the stock awards granted to employees. The average risk-free interest rate is based on the five-year U.S. treasury security rate in effect as of the grant date. The expected dividend yield is based on the expected annual dividend as a percentage of the market value of our common stock as of the grant date. The expected term of the stock options was determined using historical data adjusted for the estimated exercise dates of unexercised options. The Company’s share-based compensation plans are described below.

Employee Stock Option and Stock Purchase Plans

The Company’s 2004 Long-Term Performance Plan (the “2004 Plan”), which is shareholder approved, authorizes the issuance of up to 6.5 million share options and nonvested shares to its employees. Stock option awards are generally granted with an exercise price equal to the market price of the Company shares at the date of grant and typically vest over four years and expire seven years from the date of grant.

The Company has an Employee Stock Purchase Plan (“ESPP”) that operates in accordance with section 423 of the Internal Revenue Code whereby U.S. employees can purchase the Company’s common stock at favorable prices. Under the plan, eligible employees are permitted to apply salary withholdings to purchase shares of common stock at a price equal to 90% of the lower of the market value of the stock at the beginning or end of each six-month option period ending June 30 and December 31. Employees purchased 0.1 million shares for $6.6 million in June 2006.

The fair value of stock options and ESPP shares granted during the three and nine months ended September 30, 2006, have been estimated at the date of grant using a BSM option-pricing model with the following weighted average assumptions:

	Stock Option Plans	ESPP
Option life (in years)	5.27	0.5
Risk-free interest rate	4.28%	4.35%
Stock price volatility	25.82%	29.36%
Dividend yield	0.94%	0.94%

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The following table summarizes activity under the Company’s stock option plans:

	Options (in thousands)	Weighted Average Exercise Price Per Option	Remaining Contractual Life (in years)	Aggregate Intrinsic Value (in millions)
Outstanding at January 1, 2006	8,613	$ 43.46
Granted	724	$ 56.86
Exercised	(531)	$ 29.43
Canceled	(71)	$ 53.87
Outstanding at September 30, 2006	8,735	$ 45.33	4.43	$ 120.8
Exercisable at September 30, 2006	5,940	$ 40.34	4.01	$ 107.1
Options expected to vest at September 30, 2006	2,676	$ 55.83	5.32	$   13.4

As of September 30, 2006, the aggregate unamortized fair value of all unvested stock options was $17.1 million, which will be amortized on a straight-line basis over a weighted average period of approximately 1 year. The weighted average fair value of options granted during the three and nine months ended September 30, 2006 was $15.81 and $16.49 per share, respectively. The total intrinsic value of stock options exercised was $4.8 million and $13.8 million during the three and nine months ended September 30, 2006, respectively.

Nonvested Stock Plan

Under the 2004 Plan, the Company may issue shares of nonvested stock to its employees. These shares vest based on the passage of time, generally over four years. The following table summarizes activity under the Company’s nonvested stock plan:

	Number of Shares (in thousands)	Weighted Average Grant Date Fair Value
Outstanding at January 1, 2006	106	$ 46.32
Granted	195	$ 56.66
Vested	(36)	$ 53.96
Canceled/forfeited	(8)	$ 55.14
Outstanding at September 30, 2006	257	$ 54.56

The total fair value of shares vested during the three and nine months ended September 30, 2006, was $0.2 million and $1.9 million, respectively. As of September 30, 2006, the aggregate unamortized fair value of all nonvested stock awards was $10.9 million, which will be amortized on a straight-line basis over a weighted average period of approximately 3.1 years.

Performance Shares

Under the 2004 Plan, the Company granted Performance Share Awards (“Performance Shares”) to executives and other key employees. The vesting of the Performance Shares is contingent upon employee service and meeting company-wide performance goals for a three year period. No Performance Shares were granted during the three months ended September 30, 2006, and 93,450 were granted during the nine months ended September 30, 2006, at an average grant date fair value of $49.74. There were no vested or forfeited Performance Shares for the three and nine month periods ended September 30, 2006.

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As of September 30, 2006, the aggregate unamortized fair value of all unvested Performance Share awards was $4.2 million, which to the extent management estimates that performance goals will be achieved, will be amortized on a straight-line basis over a weighted average period of approximately 2.8 years.

Stock Appreciation Rights

The Company awards stock appreciation rights to certain employees of its international subsidiaries. These rights are granted with an exercise price equal to the market price of the Company’s shares at the date of grant and typically vest over four years and expire seven years from the date of grant. As a result of adopting SFAS No. 123(R), the Company changed its method of valuing these awards from the intrinsic method to the fair value method. The effect of changing from intrinsic to fair value was not material and is recorded in operating income in the accompanying condensed consolidated statements of operations. The expected life of stock appreciation rights granted is based on the simplified calculation of expected life, described in the U.S. Securities and Exchange Commission’s Staff Accounting Bulletin 107, “Share-Based Payment”. The fair values of the stock appreciation rights granted during the three and nine months ended September 30, 2006 have been estimated at the date of grant using a BSM option-pricing model with the following assumptions:

Option life (in years)	0 - 4.5
Risk-free interest rate	4.65%
Stock price volatility	25.94% - 36.25%
Weighted average stock price volatility	26.67%
Dividend yield	0.94%

The following table summarizes activity under the Company’s stock appreciation rights plan (in thousands, except per share amounts):

	Number of Shares	Weighted Average Grant Date Fair Value
Outstanding at January 1, 2006	396	$ 15.16
Granted	112	$ 13.64
Exercised	(30)	$ 17.18
Canceled	(12)	$ 14.29
Outstanding at September 30, 2006	466	$ 14.98

The total intrinsic value of stock appreciation rights exercised was $0.2 million and $0.5 million during the three and nine months ended September 30, 2006, respectively.

The Company currently uses treasury stock to deliver shares of its common stock under its share-based payment plans. At September 30, 2006, the number of shares authorized to be issued under the Company’s share-based payment plans combined with shares held as treasury stock are sufficient to cover future stock option exercises.

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11. Retirement Benefits

Defined Benefit Pension Plans

The Company provides pension benefits covering the majority of its employees. Pension benefits for the Company’s domestic employees are based on age, years of service and compensation rates. The Company’s funding policy is to provide currently for accumulated benefits, subject to federal regulations.

Certain of the Company’s international subsidiaries have separate pension plan arrangements, which include both funded and unfunded plans. Unfunded foreign pension obligations are recorded as a liability on the Company’s condensed consolidated balance sheets.

During the three months ended September 30, 2006, the Company amended its pension plans effective December 31, 2006, to freeze benefits to employees who are under the age of 40 or have less than five years of vested service. These employees will no longer earn additional benefits in the pension plans. Instead, these employees and new employees hired after December 31, 2006, will be eligible to participate in a Retirement Account Plan (“RAP”) which is a defined contribution plan.

As a result of this amendment to the pension plans, the Company incurred a net curtailment charge of approximately $4.0 million. The curtailment charge is included in selling, general and administrative expenses in the condensed consolidated statements of operations for the three and nine months ended September 30, 2006.

Postretirement Plan

The Company’s Postretirement Plan provides certain healthcare and life insurance benefits for retired U.S. employees and their dependents. Eligibility under the Postretirement Plan and participant cost sharing is dependent upon the participant’s age at retirement, years of service and retirement date. Employees who had not met certain age and service requirements as of December 31, 2002, are not eligible to receive medical coverage upon retirement.

The following table lists the components of the net periodic benefit cost (in millions):

	Pension Plans
	Three months ended September 30,		Nine months ended September 30,
	2006	2005	2006	2005
Service cost	$     6.9	$     7.1	$     20.9	$     21.2
Interest cost	11.4	11.5	33.8	34.6
Expected return on plan assets	(16.4)	(15.6)	(48.8)	(46.8)
Amortization of prior service costs	0.2	0.4	1.0	1.3
Amortization of actuarial loss	3.3	3.1	9.7	9.3
Curtailment loss	4.0	—	4.0	4.0
Net periodic benefit cost	$     9.4	$     6.5	$     20.6	$     23.6
	Postretirement Plans
	Three months ended September 30,		Nine months ended September 30,
	2006	2005	2006	2005
Service cost	$     0.5	$     0.4	$     1.6	$     1.2
Interest cost	1.6	1.1	4.7	3.3
Amortization of prior service costs	(1.1)	(1.2)	(3.4)	(3.6)
Amortization of actuarial (gain) loss	0.1	(0.3)	0.4	(0.9)
Net periodic benefit cost	$     1.1	$     —	$     3.3	$   —

In March and June 2006, the Company contributed $17.0 million and $6.0 million, respectively, to its U.S. Pension Plan.

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12. Commitments and Contingencies

The Company is involved in a number of lawsuits, which the Company considers ordinary and routine in view of its size and the nature of its business. The Company does not believe that any ultimate liability resulting from any of these lawsuits will have a material adverse effect on its results of operations, financial position or liquidity. However, the Company cannot give any assurances regarding the ultimate outcome of these lawsuits and their resolution could be material to the Company’s operating results for any particular period, depending upon the level of income for the period.

Cardbeck Miami Trust - In 1998, the Company entered into a sale-leaseback transaction with Cardbeck Miami Trust (“Cardbeck”) in connection with the Company’s Miami facility. In May 2005, Cardbeck notified the Company that it had received an assessment from the State of Florida in the amount of $4.4 million for revenue tax, interest and penalties related to payments made by the Company to Cardbeck from June, 2000 to February, 2005. The State of Florida has asserted that this transaction is subject to revenue tax in accordance with applicable state laws and requested Cardbeck to pay this assessment. As part of the 1998 agreement with Cardbeck, the Company agreed to pay any non-income taxes incurred in connection with the transaction and Cardbeck has demanded that the Company take certain actions with respect to the assessment. Cardbeck also filed an appeal of the assessment, and Beckman Coulter then sought permission to intervene in the proceedings as the real party in interest. Although Beckman Coulter’s request to intervene was granted initially, the State subsequently filed a motion challenging that decision. The State also asked the Administrative Law Judge to limit the issues to be considered in the case. The Administrative Law Judge granted the State’s motions, removing Beckman Coulter from active participation in the case and potentially preventing it from making the arguments that Beckman Coulter intended to present. Beckman Coulter has appealed this decision and the Administrative Law Judge has stayed the proceedings pending the outcome of the Company’s appeal. The Company also has filed a declaratory relief action seeking judicial review of its position; however, the Court has stayed that proceeding pending resolution of Beckman Coulter’s appeal of the Administrative Law Judge’s ruling. The Company believes that its position is supported by relevant prior case law in the State of Florida and believes that this dispute ultimately will be adjudicated in its favor. Accordingly, at September 30, 2006, no accrual has been made for this assessment.

Rau - The Company and its wholly owned subsidiary Diagnostic Systems Laboratories (“DSL”) have been named as defendants in an action brought in Texas by Rama Rau and Vijay Yelundur. The plaintiffs claim that they are former owners of approximately one-third of DSL’s outstanding shares and are seeking rescission of the agreement under which they sold their interest in DSL to Gopal Savjani. They allege that Mr. Savjani fraudulently induced them to sell their interest in DSL for approximately $4 million by misrepresenting the status and future prospects of DSL and failing to inform them of the potential sale of the business to Beckman Coulter. They also allege that these actions constituted breach of fiduciary duties, negligent misrepresentation, and a breach of the contract under which they invested in DSL. The action is against Mr. Savjani individually, DSL and the Company. The Company cannot determine the probability of a favorable or unfavorable outcome of this litigation, nor can it estimate the amount or range of any potential liabilities associated with this claim, if any. Accordingly, at September 30, 2006, no accrual has been made for any potential exposure.

Wipro - During June 2006, Wipro Limited (“Wipro”), the Company’s former distributor in India, initiated action against Beckman Coulter India Private Limited (“BCIPL”), the Company’s India subsidiary, based on a claim that BCIPL hired a number of Wipro’s current and former employees in violation of the non-solicitation clause in the contract between the Company and Wipro. Wipro has obtained an ex parte order prohibiting BCIPL from employing Wipro employees who Wipro had not expressly released from employment. The current order has no affect upon the former Wipro employees currently employed by BCIPL. Wipro also initiated arbitration against Beckman Coulter International S.A. (“BCISA”), the Beckman Coulter subsidiary who entered the original contract with Wipro. Wipro is alleging that BCIPL’s actions breached the contract between BCISA and Wipro and is claiming that it has experienced 18 million Euro in damages. The arbitration will take place in Switzerland under ICC rules; Swiss law will govern. The Company cannot determine the probability of a favorable or unfavorable outcome of this litigation, nor can it estimate the amount or range of any potential liabilities associated with this claim, if any. Accordingly, at September 30, 2006, no accrual has been made for any potential exposure.

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Land sale - On June 29, 2006, the Company entered into an agreement to sell approximately 53 acres of vacant land in Miami, for a sales price of about $33 million. The vacant land in Miami has a book basis of approximately $3 million and the land sale is expected to close during 2007.

Lumigen - On September 29, 2006, the Company entered into an agreement to acquire all of the outstanding shares of Lumigen, Inc., (“Lumigen”) for a purchase price of approximately $185.0 million. Lumigen is the largest manufacturer and supplier of chemiluminescent substrates to the clinical diagnostics market, and is the Company’s supplier of these products for the assays used on its Access^® family of immunoassay systems. The transaction is expected to close during the fourth quarter.

On October 31, 2006, the Company entered into a Bridge Credit Agreement (“Bridge Loan”) with its lenders. The Bridge Loan provides proceeds of up to $185.0 million to be used for the acquisition of Lumigen. The Bridge Loan has a term of 364 days and similar covenant requirements as those of the Credit Facility entered into by the Company in January 2005.

13. Business Segment Information

The Company is engaged primarily in the design, manufacture and sale of laboratory instrument systems and related products. The Company has one business segment consisting of four business groups focused on driving core product strategies. These business groups are Chemistry Systems, Cellular Systems, Immunoassay Systems, and Discovery and Automation Systems. The Company’s CEO, who is also the Company’s chief operating decision maker, evaluates the Company’s various global product portfolios on a revenue basis, and profitability is evaluated on an enterprise-wide basis due to shared infrastructures.

	Three Months Ended September 30, (unaudited)				Nine Months Ended September 30, (unaudited)
	2006		2005		2006		2005
Net sales (in millions):
Chemistry Systems	$	168.7	$	172.5	$	494.4	$	515.6
Cellular Systems		202.8		193.4		583.3		597.0
Immunoassay Systems		118.9		97.4		352.2		301.6
Discovery & Automation Systems		140.8		130.1		386.6		374.1
	$	631.2	$	593.4	$	1,816.5	$	1,788.3
Sales by geographic areas (in millions):
United States	$	337.7	$	323.0	$	964.6	$	936.5
International		293.5		270.4		851.9		851.8
	$	631.2	$	593.4	$	1,816.5	$	1,788.3

	September 30, 2006	December 31, 2005
Long-lived assets (in millions):
United States	$ 1,559.9	$ 1,526.0
International	314.5	268.0
	$ 1,874.4	$ 1,794.0

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

Overview

Beckman Coulter simplifies and automates laboratory processes used in all phases of the battle against disease. We serve customers across the biomedical testing continuum by designing, developing, manufacturing, selling and supporting the complex systems that customers use in their laboratories. Our products consist of instruments, chemistries, software and supplies that meet a variety of biomedical laboratory needs. Our products are used in a range of applications, from lab solutions used for pioneering medical research, clinical research and drug discovery to diagnostic systems found in hospitals and physicians’ offices to aid in patient care. We compete in a market segment that we estimate totaled approximately $47 billion in annual worldwide revenue. We currently have products that address approximately half of that market. We market our products in more than 130 countries, with approximately 48% of revenue in 2005 coming from outside the United States.

Our product lines include virtually all blood tests routinely performed in hospital laboratories and a range of systems for medical and pharmaceutical research. We have more than 200,000 systems operating in laboratories around the world. Our instruments are generally provided to customers under operating-type lease (“OTL”) arrangements, sales-type lease (“STL”) arrangements or cash sales. Many of our lease arrangements take the form of what are known as “reagent rentals” where an instrument is placed at a customer location and the customer commits to purchase a certain minimum volume of reagents annually. We also enter into “metered” contracts with customers where the instrument is placed at a customer location with a stock of reagents. The customer is then billed monthly based on actual usage of reagents. In the second quarter of 2005, we reviewed our leasing policies and decided to emphasize lease contracts with terms that are expected to result in more OTLs. This shift to OTLs began in the third quarter of 2005, and mostly impacted the United States (“U.S.”). By the fourth quarter of 2005, substantially all new leases in the U.S. were OTLs.

Approximately 71.5% of our 2005 revenue came from recurring revenue which we define as operating type lease revenue and sales of operating supplies, chemistry kits and service from existing customer installed instruments. Our large installed base provides us with a significant competitive advantage and drives this profitable stream of aftermarket consumables and service. Our strategy is to extend the Company’s leadership in simplifying, automating and innovating customer’s processes, by continuing to rollout new products, enhancing our current product offerings, and entering into new and growing market segments.

Placements of products serving the clinical diagnostics markets (Chemistry Systems, Immunoassay Systems, the majority of products within Cellular Systems and some of the products within Discovery and Automation Systems) have been experiencing growth as test volumes continue to increase as a result of factors such as an aging population, increasing expenditures on chronic diseases, other conditions requiring ongoing treatment (for example, diabetes, AIDS and cancer) and greater acceptance of Western medicine in emerging countries. Our customers are faced with increasing volumes of testing and a shrinking skilled labor pool while under constant pressure to contain costs. Consequently, it has become essential for manufacturers to provide cost-effective systems to remain competitive. A large number of the products in the Discovery and Automation Systems product area are dependent on academic research funding and capital spending in the biotechnology, pharmaceutical and clinical research markets. We are seeing an increase in pharmaceutical and biotechnology research and development investment along with a growing need to simplify and automate testing in the research markets. These trends are driving growth in certain areas of this market where we are focused on becoming a provider of solutions for our various customers.

20

Products such as the UniCel^® DxI 800 Access^® immunoassay systems, the recently introduced UniCel^® DxC 600, DxC 600i and 800 SYNCHRON^® clinical systems and the Power Processor front-end automation system provide our customers with a means to increase efficiency through automation and workstation consolidation. We believe these industry leading, high-throughput platforms have positioned us to gain market share and increased streams of reagent revenue in the coming years. To further the potential of these systems we are developing new assays internally, collaborating with external parties and pursuing business and technology acquisitions. In hematology, we continue to automate more of the testing process to serve both high-volume hospital labs and small- to mid-sized labs.

Our after-market revenue of chemistry kits, supplies and service has allowed us to generate substantial operating cash flows. We have used this cash flow to facilitate growth in the business by developing, marketing and launching new products through internal development as well as business and technology acquisitions. We have also used our operating cash flows to repurchase shares of our common stock and pay regular quarterly dividends. We have recently shifted our emphasis to OTLs which requires additional investment in our instruments subject to lease and could utilize a significant portion of our operating cash flows in the next several years as we reach a new steady-state level of OTLs. We expect substantially all of our lease arrangements in the U.S. to be OTLs in future years.

In order to continue to grow the Company, gain market share and remain competitive and offset continuing price pressures that are common in the industry, we must continue to introduce new instrument, test and reagent technologies and remain at the forefront in helping customers advance medical science, improve patient outcomes and reduce overall healthcare costs. We must also acquire and defend intellectual property and invest in research and development. Otherwise, our current products could become technologically obsolete over time. We believe that our cash flow will enable us to continue to fund these activities into the future. We are subject to a number of risks and uncertainties that could hamper our efforts to successfully increase market share and expand into new markets such as general worldwide economic weakness, pressure on healthcare spending, constrained government research funding and our ability to obtain regulatory approvals for new products. We believe we are addressing these risks by providing our customers automated and cost effective solutions. A large number of our products require marketing authorizations from the U.S. Food & Drug Administration (“FDA”) and similar agencies in other countries. We believe that we have effective quality and compliance programs in place and have been successful in obtaining the necessary clearances for our new products from the FDA and other similar agencies.

Reorganization

On July 22, 2005, the Company announced a reorganization that integrated the former Clinical Diagnostics and Biomedical Research Divisions into a single company structure that is expected to create synergies and improve focus as we address the entire biomedical testing continuum. The new structure created four business groups focused on driving core product strategies. These business groups are Chemistry Systems, Cellular Systems, Immunoassay Systems, and Discovery and Automation Systems.

As a result of the reorganization, we expect to eliminate approximately 350 net positions worldwide and to incur additional restructuring charges for supply chain management. In 2005, we recorded a charge for approximately $34.8 million ($20.9 million after tax) for severance and related benefits for affected employees. Additional charges of $0.8 million, $6.1 million and $2.6 million were recorded in the first, second and third quarters of 2006, respectively. Approximately $8.9 million, $6.4 million and $6.7 million of these amounts were paid in the first, second and third quarters of 2006, respectively, see Note 2 “Restructuring Activities and Asset Impairments” of the condensed consolidated financial statements.

Also, in connection with the restructuring activities, the Company exited certain non-strategic products and products under development and recorded a $0.9 million and $1.4 million impairment charge to write-off patents, licenses and other related assets during the first and second quarters of 2006, respectively. Other charges of $0.3 million, $0.1 million and $1.8 million were recorded for other costs related to the restructuring during the first, second and third quarters of 2006, respectively. Also, during the third quarter of 2006 charges of $0.9 million were recorded to cost of goods sold for inventory write-offs related to a discontinued product line.

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Results of Operations

Revenue

The following provides product area and geographical revenue information (dollar amounts in millions):

	Three months ended September 30,				Reported Growth %	Constant Currency Growth %*
	2006		2005
Chemistry Systems	$	168.7	$	172.5	(2.2)	(3.2)
Cellular Systems		202.8		193.4	4.9	4.0
Immunoassay Systems		118.9		97.4	22.1	20.7
Discovery & Automation Systems		140.8		130.1	8.2	6.9
Total	$	631.2	$	593.4	6.4	5.3
United States	$	337.7	$	323.0	4.6	4.6
International		293.5		270.4	8.5	6.2
	$	631.2	$	593.4	6.4	5.3
	Nine months ended September 30,				Reported Growth %	Constant Currency Growth %*
	2006		2005
Chemistry Systems	$	494.4	$	515.6	(4.1)	(3.6)
Cellular Systems		583.3		597.0	(2.3)	(1.8)
Immunoassay Systems		352.2		301.6	16.8	17.2
Discovery & Automation Systems		386.6		374.1	3.3	3.9
Total	$	1,816.5	$	1,788.3	1.6	2.1
United States	$	964.6	$	936.5	3.0	3.0
International		851.9		851.8	0.0	1.0
	$	1,816.5	$	1,788.3	1.6	2.1

* Constant currency growth is not a U.S. GAAP defined measure of revenue growth. Constant currency growth as presented herein represents:

Current period constant currency revenue (see below) less prior year reported revenue

Prior year reported revenue

We define constant currency revenue as current period revenue in local currency translated to U.S. dollars at the prior year’s foreign currency exchange rate. This measure provides information on revenue growth assuming that foreign currency exchange rates have not changed between the prior year and the current period. Constant currency revenue and constant currency growth as defined or presented by us may not be comparable to similarly titled measures reported by other companies. Additionally, constant currency revenue is not an alternative measure of revenue on a U.S. GAAP basis.

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As discussed above in the Overview, we are undergoing a shift from STLs to OTLs. This increasing proportion of hardware revenue being recognized under OTLs continued to negatively impact revenue in the first, second and third quarters of 2006. Under OTLs, the recognition of instrument revenue and earnings are spread over the life of the lease arrangement, which is typically five years. In contrast, under STLs, the recognition of instrument revenue and earnings is at the inception of the lease. Over the longer term, we expect this change to improve competitiveness and operating efficiency. This change, which negatively impacted instrument revenue across many of our product lines during the first, second and third quarters, was partially offset by the benefit of the acquisitions of Agencourt, Diagnostic Systems Laboratories (“DSL”), and placements of instruments, which in turn drove growth in aftermarket consumables revenue. In the third quarter of 2006, consumables revenue across all product lines grew 13.7% over the prior year quarter as a result of this installed base of systems and a greater average utilization of reagents.

A discussion of revenue by major product area for the three and nine months ended September 30, 2006 follows:

Chemistry Systems

Revenue was down in Chemistry Systems by 2.2% and 4.1% for the three and nine months ended September 30, 2006, respectively. Decrease in chemistry revenue is due primarily to the shift to OTL customer contracts. Hardware revenue for this product line is one of the areas most affected by the leasing policy change. Consumables revenue for this product line grew 4.0% and 1.9% for the three and nine month periods, respectively. Pricing declines experienced in dedicated proteins and certain other reagents were offset by increased utilization of reagents on newer systems. New placements of our SYNCHRON^® UniCel^® DxC 600, 800 systems and new chemistry/immunoassay 2^nd generation work cell DxC 600i continued to be strong in the third quarter 2006.

Cellular Systems

Sales in this area consist of hematology, coagulation and flow cytometry systems. Revenue in Cellular Systems was up 4.9% for the three months ended September 30, 2006, due primarily to revenue growth in consumables and service of 9.5% and 9.6%, respectively. Growth in cellular consumables was attributed to flow cytometry and hemostasis reagents. For the nine months ended September 30, 2006, revenue was down 2.3%, due partly to the leasing policy shift and a decline in hardware placements in the Far East region.

Immunoassay Systems

Revenue in Immunoassay Systems was up 22.1% and 16.8% for the three and nine months ended September 30, 2006, respectively, despite the impact of the leasing policy shift which reduced reported hardware revenue. This increase is due to continued steady placements of the UniCel^®DxI 800 Access^® Immunoassay System, an advanced high-throughput analyzer. Consumables revenue increased over the prior year third quarter by 31.9 % or 19.0%, excluding DSL, which was acquired in October 2005. Access^® consumables revenue grew over the prior year third quarter by 19.6%.

Discovery and Automation Systems

Revenue in Discovery and Automation Systems was up 8.2% and 3.3% for the three and nine months ended September 30, 2006, respectively. Sales in this area are less impacted by the leasing policy shift. The revenue growth was primarily due to the increase in clinical automation and the acquisition of Agencourt in May 2005. These increases were partially offset by weakness in sales to life sciences markets.

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Service Revenue

Service revenue, which is derived from contracts or service and maintenance calls on our installed instruments, increased 8.7% to $100.0 million in the third quarter of 2006 from $92.0 million in the third quarter of 2005. For the nine months ended September 30, 2006, service revenue increased 4.8% to $294.1 million from $280.6 million in the first nine months of 2005. The increase was due primarily to our growing installed base of instruments under service contracts.

Revenue by Major Geography

Revenue in the U.S. was up 4.6% and 3.0% for the three and nine months ended September 30, 2006, respectively. Reagent revenue was up across all product lines in the U.S. Offsetting this growth were declines in revenue in Chemistry Systems, which were negatively impacted by the leasing policy change on hardware revenue. Immunoassay revenue was up significantly for the three and nine months ended September 30, 2006, despite a similar negative impact from the leasing shift. Contributing to this increase was growth in consumables revenue, the DSL acquisition in October 2005, unit placements of our new chemistry/immunoassay 2^nd generation work cell DxC 600i and continued placements of our Access^® and UniCel^®DxI 800 Immunoassay System. Discovery and Automation Systems revenue in the U.S. was up for the three and nine months ended September 30, 2006, primarily due to clinical automation and the acquisition of Agencourt in May 2005.

International revenue was up 8.5% for the three months ended September 30, 2006 and flat for the nine months ended September 30, 2006, and up 6.2% and 1.0% in constant currency for the three and nine months ended September 30, 2006, respectively. Revenue in Europe was up 11.3%, 1.2% and up 8.2% and 3.1% in constant currency for the three and nine months ended September 30, 2006, respectively. Cellular and Immunoassay revenue in Europe was up over the prior year quarter by 19.2% and 22.7%, respectively. The increase was due to strong sales in Southern Europe and dealer markets. Sales in Asia were up 2.8% and down 7.2% (up 3.9% and down 4.6% in constant currency) for the three and nine months ended September 30, 2006, respectively, due to a transition to more direct selling in the territory, changing government regulations and a government review of overall hospital buying practices in China. In Japan, revenue was up 4.2 % and 7.7% in constant currency, over prior year quarter due primarily to increased sales of life science products. Discovery and Automation revenue was up due in part to modest recovery in life science markets in the Far East and Europe markets.

Gross profit

Gross profit as a percentage of revenue (“gross margin”) was 47.2% and 46.5% for the three months ended September 30, 2006 and 2005, respectively. Gross margin was impacted by the following:

• improved product mix as a result of increased revenue from higher margin consumable sales, which favorably impacted gross margin by 0.7 percentage points;

• foreign currency, which favorably impacted gross margin by 0.3 percentage points; and

• lower costs associated with service, which favorably impacted gross margin by 0.8 percentage points; offset by

• higher costs associated with freight and new products, which unfavorably impacted gross margin by 1.1 percentage points.

Gross margin was 47.5% and 46.5% for the nine months ended September 30, 2006 and 2005, respectively. Gross margin was primarily impacted by higher product margins from an increase in revenue arising from higher profit consumable sales, which favorably impacted gross margin by 1.3 percentage points.

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Operating Expenses

Selling, general and administrative (“SG&A”) expenses increased $16.0 million to $175.0 million or 27.7% of revenue for the three months ended September 30, 2006 from $159.0 million or 26.8% of revenue for the three months ended September 30, 2005. For the nine months ended September 30, 2006, SG&A increased 10.0% from $468.2 million or 26.2% of sales in the nine months ended September 30, 2005 to $515.0 million or 28.4% of sales. The increase in SG&A spending for the periods was primarily due to the impact of share-based compensation expense as required by SFAS No. 123(R), incremental operating expenses from the Agencourt and DSL acquisitions, changes in the non-sales management incentive plan that impacted the timing of expense accruals, moving the expense from the fourth quarter in prior years to each quarter throughout the year in 2006, a $4.0 million curtailment charge recorded in the third quarter, associated with changes to our pension plans in the U.S. and approximately $3.0 million of costs incurred during the second quarter, in connection with an inquiry directed by the Audit and Finance Committee of the Board of Directors, wherein the allegations being made by a former employee were not substantiated and the Company’s financial statements and related disclosures did not require revision.

Research and development (“R&D”) expenses increased $29.3 million to $80.9 million or 12.8% of revenue for the three months ended September 30, 2006, when compared to the three months ended September 30, 2005. For the nine months ended September 30, 2006, R&D expenses increased $57.6 million to $207.3 million when compared to the nine months ended September 30, 2005. This increase in R&D spending is due primarily to the impact of $27.5 million in R&D costs incurred during the quarter in connection with the clinical diagnostic license to real time PCR thermalcycling technologies acquired from Roche Diagnostics (“Roche”) and $18.9 million R&D charge recorded in the second quarter of 2006 for license rights in the diagnostic market for certain real time PCR thermalcycling technologies acquired from Applera. These newly licensed technologies are under development, and as a result, the initial costs have been expensed as R&D. Increases in R&D are also due to recent acquisitions, increased investment in next generation systems and tests and the impact of SFAS No. 123(R) share-based compensation expense and incentive plan changes as described above.

Restructuring Activities

As a result of the reorganization activities, the Company decided to exit certain non-strategic products and products under development, as it was determined that it no longer had significant sales or cash flow expectations for the related products. During the quarter ended September 30, 2006, the Company recorded a $1.8 million charge for costs relating to the restructuring. Also, during the third quarter charges of $0.9 million were recorded to cost of goods sold for inventory write-offs. Employee severance and related charges of $2.6 million were also recorded for certain positions identified as part of the restructuring, see Note 2 “Restructuring Activities and Asset Impairments” of the condensed consolidated financial statements for more information.

Litigation Settlement

During the second quarter, as part of its agreement with Applera, the Company recorded a $35.0 million gain related to the signing of release of any and all claims of infringement relating to certain DNA sequencer and thermal cycler products. See Note 7 “Composition of Certain Financial Statement Items” of the consolidated financial statements for more information.

Non-Operating Income and Expenses

Interest income includes income from STL receivables, which are declining as a result of the leasing policy shift. Interest income decreased $1.8 million from $5.0 million in the third quarter of 2005 to $3.2 million in the third quarter of 2006. In the nine months ended September 30, 2006, interest income decreased $2.5 million to $10.9 million from $13.4 million in the first nine months of 2005 due to lower STL balances.

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Interest expense for the third quarter 2006 was flat when compared to the third quarter of 2005. For the nine months ended September 30, 2006, interest expense increased $5.3 million from $33.7 million in the first nine months of 2005 to $39.0 million mainly due to higher interest rates on the variable portion of our outstanding debt, a higher level of debt outstanding during the nine months of 2006 and debt extinguishment costs of $2.7 million incurred during the second quarter in connection with the debentures that were tendered by the holders of the debentures, see Note 9 “Debt” of the condensed consolidated financial statements.

Other non-operating (income) expense was $3.8 million and $(0.1) million for the three months ended September 30, 2006 and 2005, respectively, and $2.7 million and $13.7 million for the nine months ended September 30, 2006 and 2005, respectively, and were comprised primarily of foreign exchange related losses in 2006. For the three and nine months ended September 30, 2005 foreign currency related losses of $2.1 million and $15.6 million, respectively, were partially offset by gains from sale of STL receivables of $(1.3) million and $(1.4) million, respectively.

Income Taxes

At the end of each interim reporting period, an estimate is made of the effective tax rate expected to be applicable for the full year. The rate determined, which includes changes in tax reserves, is used to provide for income taxes on a year-to-date basis. The tax effect of any tax law changes and certain other discrete events are reflected in the period in which they occur. The income tax rate, as a percentage of pre-tax income, was 27.3% for the third quarter of 2006, compared with 17.0% for the third quarter of 2005 and 27.0% in the first nine months of 2006 compared to 19.9% in the first nine months of 2005. The lower tax rate in 2005 is the net result of a favorable IRS notice relating to the American Jobs Creation Act of 2004 and geographic profit mix.

Our effective tax rate for the full year of 2006 could be impacted by a number of factors including, but not limited to, enactments of new tax laws, new interpretations of existing tax laws, rulings by and settlements with taxing authorities, our utilization of tax credits and our geographic profit mix.

Discontinued Operations

In July 2006, the Company sold its non-controlling interest in APG, a developer of next-generation genetic technologies. The Company received approximately $50.0 million in cash and recognized a gain from the sale. APG recognized compensation costs of approximately $8.9 million during the three months ended September 30, 2006, as a result of the acceleration of vesting of restricted stock and stock options upon the sale of APG. The gain and APG’s operating results, net of minority interest, are included in discontinued operations in the condensed consolidated statements of operations.

Liquidity and Capital Resources

Liquidity is our ability to generate sufficient cash flows from operating activities to meet our obligations and commitments. In addition, liquidity includes the ability to obtain appropriate financing and to convert those assets that are no longer required in meeting existing strategic and financing objectives into cash. Therefore, liquidity cannot be considered separately from capital resources that consist of current and potentially available funds for use in achieving long-range business objectives and meeting our commitments.

Our business model, in particular sales from after-market kits, supplies and service, allows us to generate substantial operating cash flows. We anticipate our operating cash flows together with the funds available through our credit facility will continue to satisfy our working capital requirements without the need for substantial additional indebtedness excluding debt required to finance acquisitions. Additionally, we currently do not have plans to significantly reduce our long-term debt levels in the next twelve months due to the long-term maturities of our senior notes. This allows us to invest in areas that will help meet our strategic objectives. During the next twelve months, we anticipate using our operating cash flows:

• To increase our capital expenditures for customer leased equipment as we continue to shift toward operating-type leases.

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• To facilitate growth in the business by developing, marketing and launching new products. We expect new product offerings to come from existing R&D projects, business acquisitions and by gaining access to new technologies through license arrangements.

• To reduce our borrowings under our credit facility that was drawn on to fund the 2005 acquisitions of Agencourt and DSL.

• To maintain and raise our quarterly dividend. Our dividend paid in the third quarter was $0.15 cents per share. In October 2006, the Company’s Board of Directors declared a quarterly cash dividend of $0.15 per share, payable on November 10, 2006 to stockholders of record on October 23, 2006.

• To continue to pay our restructuring expenses. Approximately $17.9 million is accrued at September 30, 2006. We expect these amounts to be paid throughout 2006 and into 2007.

• To make a contribution to the pension plan of $23.0 million during the fourth quarter of 2006.

Cash flows provided by operating activities of continuing operations were $245.4 million in the first nine months of 2006 as compared to $277.9 million in the first nine months of 2005. The primary contributors to this decrease in operating cash flows from continuing operations was a decrease in net earnings from continuing operations of $36.9 million and a payment to Roche of $27.5 million during the third quarter, which was offset by a $35.0 million settlement gain related to Applera in the second quarter. Also impacting operating cash flows was our contribution of $23.0 million to the U.S. Pension trust and payments of $22.0 million related to restructuring expenses that did not occur in 2005. Operating activities of discontinued operations used cash of $21.3 million, primarily related to tax payments associated with the sale of APG.

Investing activities from continuing operations used cash of $242.3 million and $261.7 million in the first nine months of 2006 and 2005, respectively. Increased capital expenditures for customer leased equipment comprise a substantial portion of the Company’s total capital expenditures and these expenditures are expected to continue at a comparable pace. In the first nine months of 2006 cash used for business acquisitions was substantially less than in the first nine months of 2005. Cash flows provided by discontinued operations were $50.2 million and represent proceeds received from the sale of APG in 2006, which offsets the increased capital expenditures.

Financing activities used cash of $24.5 million in the first nine months of 2006 as compared to $21.8 million in the first nine months of 2005. The change in cash used in financing activities is primarily due to funds used for the repurchases of common stock during the second quarter, the repayment of $56.0 million debentures and the decrease in proceeds received from the issuance of stock. The increase in cash used for financing was offset by additional borrowings under our credit facility.

During the second quarter, approximately $56.0 million of the Company’s $100.0 million debentures, bearing an interest rate of 7.05% per annum due June 1, 2026, were tendered by the holders of the debentures. The debentures were put under terms of the debenture agreement that allowed them to be repaid, in whole or in part, on June 1, 2006 at a redemption price of 103.9%. In connection with this redemption the Company incurred approximately $2.7 million in debt extinguishment costs.

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In January 2005, the Company entered into an Amended and Restated Credit Agreement (the “Credit Facility”) that will terminate in January 2010. The Credit Facility provides the Company with a $300 million revolving line of credit, which may be increased in $50.0 million increments up to a maximum line of credit of $500.0 million. Interest on advances is determined using formulas specified in the agreement, generally, an approximation of LIBOR plus a 0.275% to 0.875% margin. The Company also must pay a facility fee of 0.150% per annum on the aggregate average daily amount of each lender’s commitment. As of September 30, 2006, there was $155.0 million drawn on the $300.0 million Credit Facility.

At September 30, 2006 approximately $88.0 million of unused, uncommitted, short-term lines of credit were available to the Company’s subsidiaries outside the U. S. at various interest rates. Within the U.S., $36.0 million in unused, uncommitted, short-term lines of credit at prevailing market rates were available.

On September 29, 2006, the Company entered into an agreement to acquire all of the outstanding shares of Lumigen, Inc., (“Lumigen”) for a purchase price of approximately $185.0 million. Lumigen is the largest manufacturer and supplier of chemiluminescent substrates to the clinical diagnostics market, and is the Company’s supplier of these products for the assays used on its Access^® family of immunoassay systems. The transaction is expected to close during the fourth quarter.

On October 31, 2006, the Company entered into a Bridge Credit Agreement (“Bridge Loan”) with its lenders. The Bridge Loan provides proceeds of up to $185.0 million to be used for the acquisition of Lumigen. The Bridge Loan has a term of 364 days and similar covenant requirements as those of the Credit Facility entered into by the Company in January 2005.

We are in the process of implementing an ERP system in order to achieve a single, globally integrated infrastructure. This includes functionality for Finance, Human Resources, Supply Chain, Order Management, Finished Goods Inventory Management, Sales and Service to replace or complement existing legacy systems and business processes. Since the inception of the program in 2000 through September 30, 2006, we have capitalized $160.7 million of costs associated with this ERP system, which includes $57.9 million of capitalized internal labor costs and $6.9 million of capitalized interest. Based on our geographic rollout strategy, as of September 30, 2006, we have essentially implemented functionality for Finance, Human Resources, Accounts Receivable management and certain purchasing systems for our global operations. Sales functionality has been implemented on a limited basis for our U.S. and Canadian operations. Systems for finished goods inventory and physical distribution have been implemented for Europe, including the deployment of systems for Sales, Service and Order Management in most entities in Europe. We expect that the majority of the work required to complete this phase of the global implementation of the new systems will take place through 2007. If we are unable to implement and effectively manage the transition to these new systems, our future consolidated operating results could be adversely affected.

Based upon current levels of operations and expected future growth, we believe our cash flows from operations together with available borrowings under our credit facility and other sources of liquidity will be adequate to meet our anticipated requirements for interest payments, other debt service obligations, working capital, capital expenditures, lease payments, pension contributions, future business acquisitions and other operating needs for the next 12 months. There can be no assurance, however, that our business will continue to generate cash flow at or above current levels. Future operating performance and our ability to service or refinance existing indebtedness, will be subject to future economic conditions and to financial, business and other factors, many of which are beyond our control.

At September 30, 2006, there have been no material changes in the Company’s significant contractual obligations and commitments as disclosed in its Annual Report on Form 10-K for the year ended December 31, 2005 except as described herein.

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Critical Accounting Policies

The Condensed Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States, which require the Company to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the consolidated financial statements and revenue and expenses during the periods reported. Actual results could differ from those estimates. Information with respect to the Company’s critical accounting policies which the Company believes could have the most significant effect on the Company’s reported results and require subjective or complex judgments by management is contained on pages 39 to 43 in Item 7, Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the Company’s Annual Report on Form 10-K for the year ended December 31, 2005. Management believes that at September 30, 2006, there has been no material change to this information, except for the implementation of share-based compensation standards described below.

Share-Based Compensation

The Company accounts for share-based compensation in accordance with Statement of Financial Accounting Standards (“SFAS”) No. 123(R), Share-Based Payment. Under the provision of SFAS No. 123 (R), share-based compensation cost for employee stock options, our employee stock purchase plan, and stock appreciation rights is estimated at the grant date based on the award’s fair-value as calculated by the Black-Scholes-Merton (“BSM”) option-pricing model and is recognized as expense ratably over the requisite service period. The BSM model requires various highly judgmental assumptions including volatility, forfeiture rates, and expected option life. If any of the assumptions used in the BSM model change significantly, stock-based compensation expense may differ materially in the future from that recorded in the current period.

Historically, the Company has used primarily stock options and stock appreciation rights in its share-based payment plans. In connection with the adoption of SFAS No. 123(R), the Company revised its share-based payment plans and now provides key employees a combination of performance shares, stock appreciation rights and nonvested stock. The Company continues to provide stock appreciation rights to certain international employees and an employee stock purchase plan, see Note 10 “Share-Based Compensation” of the condensed consolidated financial statements for more information.

Pension and Other Postretirement Accounting

On September 29, 2006, the FASB issued FASB Statement No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans — an amendment of FASB Statements No. 87, 88, 106, and 132(R)” (“SFAS No. 158”). This new standard requires an employer to: (a) recognize in its statement of financial position an asset for a plan’s overfunded status or a liability for a plan’s underfunded status; (b) measure a plan’s assets and its obligations that determine its funded status as of the end of the employer’s fiscal year (with limited exceptions); and (c) recognize changes in the funded status of a defined benefit postretirement plan in the year in which the changes occur. Those changes will be reported in comprehensive income of a business entity. The requirement to recognize the funded status of a benefit plan and the disclosure requirements are effective as of the end of the fiscal year ending after December 15, 2006. The requirement to measure plan assets and benefit obligations as of the date of the employer’s fiscal year-end statement of financial position is effective for fiscal years ending after December 15, 2008. The Company is currently evaluating the impact of adopting SFAS No. 158 on its consolidated results of operations and financial position.

Financial Statement Misstatements

In September 2006, the SEC staff issued Staff Accounting Bulletin (“SAB”) No. 108, “Considering the Effects of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statements” (“SAB 108”). The SEC staff is providing guidance on how prior year misstatements should be taken into consideration when quantifying misstatements in current year financial statements for purposes of determining whether the current year’s financial statements are materially misstated. SAB 108 provides that once a current year misstatement has been quantified, the guidance in SAB No. 99, “Materiality” (“SAB 99”) should be applied to determine whether the misstatement is material and should result in an adjustment to the financial statements. If correcting a misstatement in the current year would materially misstate the current year’s income statement, the SEC staff indicates that the prior year financial statements should be adjusted. In making these adjustments, previously filed reports do not need to be amended. Instead, the adjustments should be reflected the next time the registrant would otherwise be filing those prior year financial statements. If in the current year, however, the registrant identifies a misstatement that is material to those prior year financial statements, the registrant would be required to restate for the material misstatement in accordance with FASB Statement No. 154, “Accounting Changes and Error Corrections”. This guidance is effective for an interim period of the first fiscal year ending after November 15, 2006. The Company is currently evaluating the impact of adopting SAB 108 on its consolidated results of operations and financial position.

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Accounting for Uncertainty in Income Taxes

In June 2006, the FASB issued Interpretation No. 48, “Accounting for Uncertainty in Income Taxes, an interpretation of FASB Statement No. 109,” (“FIN 48”). The interpretation prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. It also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition. This Interpretation is effective for fiscal years beginning after December 15, 2006. The Company is currently evaluating the impact of FIN 48 on its consolidated results of operations and financial position.

Accounting for Servicing of Financial Assets

In March 2006, the FASB issued SFAS No. 156, “Accounting for Servicing of Financial Assets—an amendment of FASB Statement No. 140” (“SFAS No. 156”). This Statement amends SFAS No. 140, “Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities,” with respect to the accounting for separately recognized servicing assets and servicing liabilities. SFAS No. 156 requires that an entity recognize a servicing asset or servicing liability each time it undertakes an obligation to service a financial asset by entering into a servicing contract and that the separately recognized servicing asset or servicing liability be initially measured at fair value, if practicable. This Statement is effective as of the beginning of the first fiscal year that begins after September 15, 2006. The Company is currently evaluating the impact of the adoption of SFAS No. 156 on its consolidated results of operations and financial position.

Forward-Looking Statements

This quarterly report contains forward-looking statements, including statements regarding, among other items:

• our business strategy, anticipated gains in market share and anticipated developments in our markets;

• expected costs and benefits of the planned restructuring activities;

• the impact of shifting our lease agreements from predominantly sales-type leases to predominantly operating-type leases;

• the schedule for completion of our ERP program;

• our cash flow, liquidity requirements and capital resources and the effects of litigation;

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• our anticipated acquisition of Lumigen and related financing;

• sources of new products; and

• our anticipated use of operating cash flows.

These forward-looking statements are based on our expectations and are subject to a number of risks and uncertainties, some of which are beyond our control. These risks and uncertainties include, but are not limited to:

• loss of market share in our markets;

• the effects of potential healthcare reform in the countries in which we operate or sell products;

• the effect of global economic and political conditions;

• the availability of capital to clinical diagnostics and biomedical research customers;

• unanticipated delays in completing our ERP program;

• unanticipated reductions in cash flows and difficulty in sales of assets as described in Note 6 “Sale of Assets” of the condensed consolidated financial statements;

• the timing and extent of our change from structuring our lease agreements from predominately sales-type leases to operating-type leases;

• completion of the Lumigen transaction as contemplated;

• the amount and timing of the restructuring and related charges and savings; and

• other factors, including factors that cannot be identified at this time.

Although we believe we have the product offerings and resources required to achieve our objectives, actual results could differ materially from those anticipated by these forward-looking statements. There can be no assurance that events anticipated by these forward-looking statements will in fact transpire as expected.

Item 3. Quantitative and Qualitative Disclosures About Market Risk

The U.S. Securities and Exchange Commission requires that registrants include information about potential effects of changes in currency exchange and interest rates in their periodic filings. Several alternatives, all with some limitations, have been offered. The following discussion is based on a sensitivity analysis, which models the effects of fluctuations in currency exchange rates and interest rates. This analysis is constrained by several factors, including the following:

• it is based on a single point in time; and

• it does not include the effects of other complex market reactions that would arise from the changes modeled.

Although the results of the analysis may be useful as a benchmark, they should not be viewed as forecasts.

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Our most significant foreign currency exposures relate to the Euro, Japanese Yen, British Pound Sterling and Canadian Dollar. As of September 30, 2006 and December 31, 2005, the notional amounts of all derivative foreign exchange contracts were $240.7 million and $272.3 million, respectively. Notional amounts are stated in U.S. dollar equivalents at spot exchange rates at the respective dates. The net fair value of all these contracts as of September 30, 2006 and December 31, 2005 was $2.8 million and $10.8 million, respectively. We estimated the sensitivity of the fair value of all derivative foreign exchange contracts to a hypothetical 10% strengthening and 10% weakening of the spot exchange rates for the U.S. dollar against the foreign currencies at September 30, 2006. The analysis showed that a 10% strengthening of the U.S. dollar would result in a gain from a fair value change of $13.6 million and a 10% weakening of the U.S. dollar would result in a loss from a fair value change of $2.6 million in these instruments. Losses and gains on the underlying transactions being hedged would largely offset any gains and losses on the fair value of derivative contracts. These offsetting gains and losses are not reflected in the above analysis. Significant foreign currency exposures at September 30, 2006 were not materially different than those at December 31, 2005.

Similarly, we performed a sensitivity analysis on our variable rate debt instruments and derivatives. A one percentage point increase or decrease in interest rates was estimated to decrease or increase this year’s pre-tax earnings by $2.4 million based on the amount of variable rate debt outstanding at September 30, 2006. This analysis includes the effect of our reverse interest rate swap derivatives, which changes the character of the interest rate on our long-term debt by effectively converting a fixed rate to a variable rate.

Additional information with respect to our foreign currency and interest rate exposures are discussed in Note 3 of the condensed consolidated financial statements.

Item 4. Controls and Procedures

The Company maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in the Company’s Exchange Act reports is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management necessarily is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

As of September 30, 2006, the end of the fiscal quarter covered by this report, the Company carried out an evaluation, under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer and the Company’s Chief Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures. Based on the foregoing, the Company’s Chief Executive Officer and Chief Financial Officer concluded that the Company’s disclosure controls and procedures were effective at the reasonable assurance level. There has been no change in the Company’s internal control over financial reporting during the Company’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

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Part II. Other Information

Item 1. Legal Proceedings

The Company is involved in a number of lawsuits, which the Company considers ordinary and routine in view of its size and the nature of its business. The Company does not believe that any ultimate liability resulting from any of these lawsuits will have a material adverse effect on its consolidated results of operations, financial position or liquidity. However, the Company cannot give any assurances regarding the ultimate outcome of these lawsuits, and their resolution could be material to the Company’s operating results for any particular period, depending upon the level of income for the period.

In 1998, the Company entered into a sale-leaseback transaction with Cardbeck Miami Trust (“Cardbeck”) in connection with the Company’s Miami facility. In May 2005, Cardbeck notified the Company that it had received an assessment from the State of Florida in the amount of $4.4 million for revenue tax, interest and penalties related to payments made by the Company to Cardbeck from June, 2000 to February, 2005. The State of Florida has asserted that this transaction is subject to revenue tax in accordance with applicable state laws and requested Cardbeck to pay this assessment. As part of the 1998 agreement with Cardbeck, the Company agreed to pay any non-income taxes incurred in connection with the transaction and Cardbeck has demanded that the Company take certain actions with respect to the assessment. Cardbeck also filed an appeal of the assessment, and Beckman Coulter then sought permission to intervene in the proceedings as the real party in interest. Although Beckman Coulter’s request to intervene was granted initially, the State subsequently filed a motion challenging that decision. The State also asked the Administrative Law Judge to limit the issues to be considered in the case. The Administrative Law Judge granted the State’s motions, removing Beckman Coulter from active participation in the case and potentially preventing it from making the arguments that Beckman Coulter intended to present. Beckman Coulter has appealed this decision and the Administrative Law Judge has stayed the proceedings pending the outcome of the Company’s appeal. The Company also has filed a declaratory relief action seeking judicial review of its position; however, the Court has stayed that proceeding pending resolution of Beckman Coulter’s appeal of the Administrative Law Judge’s ruling. The Company believes that its position is supported by relevant prior case law in the State of Florida and believes that this dispute ultimately will be adjudicated in its favor. Accordingly, at September 30, 2006, no accrual has been made for this assessment.

The Company and its wholly owned subsidiary Diagnostic Systems Laboratories (“DSL”) have been named as defendants in an action brought in Texas by Rama Rau and Vijay Yelundur. The plaintiffs claim that they are former owners of approximately one-third of DSL’s outstanding shares and are seeking rescission of the agreement under which they sold their interest in DSL to Gopal Savjani. They allege that Mr. Savjani fraudulently induced them to sell their interest in DSL for approximately $4 million by misrepresenting the status and future prospects of DSL and failing to inform them of the potential sale of the business to the Company. They also allege that these actions constituted a breach of fiduciary duties, negligent misrepresentation, and a breach of the contract under which they invested in DSL. The action is against Mr. Savjani individually, DSL, and the Company as successor in interest in DSL. The Company cannot determine the probability of a favorable or unfavorable outcome of this litigation, nor can it estimate the amount or range of any potential liabilities associated with this claim, if any. Accordingly, at September 30, 2006, no accrual has been made for any potential exposure.

During June 2006, Wipro Limited (“Wipro”), the Company’s former distributor in India, initiated action against Beckman Coulter India Private Limited (“BCIPL”), the Company’s India subsidiary, based on a claim that BCIPL hired a number of Wipro’s current and former employees in violation of the non-solicitation clause in the contract between the Company and Wipro. Wipro obtained an ex parte order prohibiting BCIPL from employing Wipro employees who Wipro had not expressly released from employment. The current order has no affect upon the former Wipro employees currently employed by BCIPL. Wipro initiated arbitration against Beckman Coulter International S.A. (“BCISA”), the Beckman Coulter subsidiary who entered the original contract with Wipro. Wipro is alleging that BCIPL’s actions breached the contract between BCISA and Wipro and is claiming that it has experienced 18 million Euro in damages. The arbitration will take place in Switzerland under ICC rules; Swiss law will govern. The Company cannot determine the probability of a favorable or unfavorable outcome of this litigation, nor can it estimate the amount or range of any potential liabilities associated with this claim, if any. Accordingly, at September 30, 2006, no accrual has been made for any potential exposure.

33

Item 1A. Risk Factors

There were no material changes to the risk factors previously disclosed in the Company’s most recent report on Form10-K.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

ISSUER PURCHASES OF EQUITY SECURITIES

Period	Total Number of Shares Purchased	Average Price Paid per Share	Total Number of Shares Purchased as Part of Publicly Announced Plans or programs	Maximum Number of Shares that May Yet Be Purchased Under the Plans or Programs
July 1 through 31, 2006	N/A	N/A	N/A	N/A
August 1 through 31, 2006	13,491	$ 52.91	N/A	N/A
September 1 through 30, 2006	N/A	N/A	N/A	N/A
Total	13,491	$ 52.91	N/A	N/A

1,016 of the shares above were repurchased pursuant to the Company’s restricted stock plan whereby upon vesting of the nonvested shares the Company was reimbursed, in the form of Company common stock, for the payment of taxes on the employees’ behalf.

12,475 of the shares above were repurchased as part of the Company’s Benefit Equity Trust (the “Trust”) using proceeds from the dividends paid by the Company on the shares in the Trust. The transfer of shares to the Trust and the issuance of shares from the Trust was authorized by the Company’s Board of Directors in October 2004. The Trust was established to pre-fund stock-related obligations of employee benefit plans.

The Company repurchased all the shares authorized by the Company’s Board of Directors in January 2005, whereby the Company is authorized to repurchase up to 2.5 million shares of its Common Stock through 2006.

Item 4. Submission of Matters to a Vote of Security Holders

None

Item 5. Other Information

On October 31, 2006, Beckman Coulter entered into a Bridge Credit Agreement (“Bridge Loan”) with Citicorp North America, Inc., as Sole Administrative Agent, Banc of America Bridge LLC, as Syndication Agent and Citigroup Global Markets Inc. and Banc of America Securities LLC, as Lead Arrangers and Bookrunners. The Bridge Loan provides proceeds of up to $185.0 million to be used for the acquisition of Lumigen, Inc. The Bridge Loan has a term of 364 days. The covenants of the Company set forth in the Bridge Loan are essentially the same as those of the Credit Facility entered into by the Company in January 2005.

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Item 6. Exhibits

10.1	Agreement and Plan of Merger by and among Lumigen, Inc., Beckman Coulter, Inc., NLACQCO, Inc., The Undersigned Shareholders and the Shareholder Representative dated as of September 29, 2006.
10.2	Bridge Credit Agreement dated as of October 31, 2006 among Beckman Coulter, Inc. as Borrower The Initial Lenders named herein as Initial Lenders Citicorp North America, Inc. as Sole Administrative Agent Banc of America Bridge LLC as Syndication Agent Citigroup Global Markets Inc. and Banc of America Securities LLC as Lead Arrangers and Bookrunners
15	Review Report of Independent Registered Public Accounting Firm
15.1	Letter of Acknowledgement of Use of Report on Unaudited Interim Financial Information dated November 2, 2006
31	Rule 13a-14(a)/15d-14(a) Certifications
32	Section 1350 Certifications

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Signatures

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

		BECKMAN COULTER, INC.
		(Registrant)
Date:	November 1, 2006	By	/s/ Scott Garrett
			Scott Garrett
			Chief Executive Officer
Date:	November 1, 2006	By	/s/ Charles P. Slacik
			Charles P. Slacik
			Senior Vice President &
			Chief Financial Officer
Date:	November 1, 2006	By	/s/ Carolyn D. Beaver
			Carolyn D. Beaver
			Vice President & Controller,
			Principal Accounting Officer

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INDEX TO EXHIBITS

Exhibit No.	Description
10.1	Agreement and Plan of Merger by and among Lumigen, Inc., Beckman Coulter, Inc., NLACQCO, Inc., The Undersigned Shareholders and the Shareholder Representative dated as of September 29, 2006.
10.2	Bridge Credit Agreement dated as of October 31, 2006 among Beckman Coulter, Inc. as Borrower The Initial Lenders named herein as Initial Lenders Citicorp North America, Inc. as Sole Administrative Agent Banc of America Bridge LLC as Syndication Agent Citigroup Global Markets Inc. and Banc of America Securities LLC as Lead Arrangers and Bookrunners
15	Review Report of Independent Registered Public Accounting Firm
15.1	Letter of Acknowledgement of Use of Report on Unaudited Interim Financial Information dated November 2, 2006
31	Rule 13a-14(a)/15d-14(a) Certifications
32	Section 1350 Certifications

37

EX-10.1

Exhibit 10.1

Execution Copy

AGREEMENT AND PLAN OF MERGER

by and among

LUMIGEN, INC.,

BECKMAN COULTER, INC.,

NLACQCO INC.,

THE UNDERSIGNED SHAREHOLDERS,

and the

SHAREHOLDERS REPRESENTATIVE

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is entered into as of September 29, 2006, by and among Lumigen, Inc., a Michigan corporation (the “Company”), Beckman Coulter, Inc., a Delaware corporation (“Buyer”), and NLAcqCo Inc., a Michigan corporation and a wholly-owned subsidiary of Buyer (“Buyer Sub”), the undersigned Shareholders of the Company and A. Paul Schaap as the Shareholders Representative. Buyer, Buyer Sub, the Company and the Shareholders are sometimes individually referred to as a “Party” and collectively referred to as the “Parties.”

RECITALS

The Parties desire that Buyer Sub merge with and into the Company, with the Company being the surviving corporation, so that the separate existence of Buyer Sub will cease, and the Company will assume by operation of law all assets and liabilities of Buyer Sub and thereafter continue as the surviving corporation.

Each of the respective Boards of Directors of Buyer, Buyer Sub, and the Company have approved this Agreement and the Merger.

The Company has only issued Common Stock.

The undersigned Shareholders represent collectively no less than 648,000 of the issued and outstanding shares of Common Stock of the Company and have approved this Agreement and the Merger.

Capitalized terms shall have the meanings set forth in Article 14 hereto or as they may be defined elsewhere in this Agreement.

AGREEMENT

The Parties, intending to be legally bound, agree as follows:

1. THE MERGER.

1.1 Shares. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Michigan Business Corporation Act (the “MBCA”), at the Effective Time, Buyer Sub shall be merged with and into the Company (the “Merger”), whereupon the separate corporate existence of Buyer Sub shall cease, and the Company shall continue as the surviving corporation (sometimes referred to herein as the “Surviving Corporation”) and shall succeed to and assume all the rights and obligations of Buyer Sub in accordance with the MBCA.

1.2 Closing. The purchase and sale (the “Closing”) provided for in this Agreement will take place at the offices of Beckman Coulter, Inc., 4300 North Harbor Boulevard, Fullerton, California 92835 at 10:00 a.m. (local time) on the date which is two (2) business days after all of the conditions in Article 8 and Article 9 have been satisfied or waived or at such other time and place as the Parties may agree. The Closing shall be deemed effective as of 11:59 p.m. on the

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Closing Date. Subject to the provisions of Article 10, failure to consummate the purchase and sale provided for in this Agreement on the date and time and the place determined pursuant to this Section 1.2 will not result in the termination of this Agreement and will not relieve any Party of any obligation under this Agreement.

1.3 Effective Time. At the Closing, Buyer, Buyer Sub and the Company shall cause the Merger to be consummated by duly filing a properly executed Certificate of Merger in the form attached hereto as Exhibit A with the State of Michigan Department of Labor and Economic Growth, in accordance with the relevant provisions of the MBCA. The time the Merger becomes effective in accordance with applicable Legal Requirements is referred to herein as the “Effective Time”.

1.4 Effects of the Merger. The Merger shall have the effects set forth in the applicable provisions of the MBCA. Without limiting the generality of the foregoing, at the Effective Time all the property, rights, privileges, powers and franchises of the Company and Buyer Sub shall be vested in the Surviving Corporation, and all debts, liabilities and duties of the Company and Buyer Sub shall become the debts, liabilities and duties of the Surviving Corporation. In addition, the approval of the Merger by the requisite percentage of the Shareholders shall constitute approval by each Shareholder of (i) the Escrow Agreement and of all of the arrangements relating thereto, including the placement of the Escrow Amount in escrow, (ii) the indemnity provisions contained in Article 11 hereof, and (iii) the appointment and authority of the Shareholders Representative as described in Section 13.12 below.

1.5 Articles of Incorporation and Bylaws. As of the Effective Time, the Articles of Incorporation of Buyer Sub, as in effect immediately prior to the Effective Time, shall be the Articles of Incorporation of the Surviving Corporation until thereafter amended as provided by the MBCA and such Articles of Incorporation. As of the Effective Time, the Bylaws of Buyer Sub, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation until thereafter amended as provided by the MBCA and such Bylaws.

1.6 Directors and Officers. The directors of Buyer Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, to serve until the earlier of their resignation or removal or until their respective successors are duly elected and qualified. The officers of Buyer Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, to serve until the earlier of their resignation or removal or until their respective successors are duly elected and qualified.

1.7 Subsequent Actions. If, at any time after the Effective Time, the Surviving Corporation shall determine or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Buyer Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Buyer Sub, all such deeds, bills of sale, assignments and assurances, and to take and do, in the name and on behalf of each of such corporation, all such other actions and things as may be necessary or desirable to

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vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

2. EFFECT OF THE MERGER ON CAPITAL STOCK.

2.1 Effect on Capital Stock of Buyer Sub. As of the Effective Time, by virtue of the Merger and without any further action on the part of the holder of any shares of capital stock of the Company, Buyer or Buyer Sub, each share of common stock of Buyer Sub that is issued and outstanding immediately prior to the Effective Time shall be converted, as of the Effective Time, into one fully paid and non-assessable share of common stock of the Surviving Corporation.

2.2 Effect on Capital Stock of Company: Payment of Total Merger Consideration. As of the Effective Time, by virtue of the Merger and without any further action on the part of the holder of any shares of capital stock of the Company, Buyer or Buyer Sub, but subject to Section 2.3, each share of common stock of the Company, whether voting or nonvoting (“Common Stock”) that is issued and outstanding immediately prior to the Effective Time (a “Share” or the “Shares”) shall be cancelled and extinguished and converted, upon surrender of the certificate representing such Share (“Certificate”), into the right to receive an amount of Total Merger Consideration as set forth in Schedule 2.2 (“Merger Consideration”).

The “Total Merger Consideration” means the Closing Merger Consideration, as adjusted pursuant to Section 3.4 and Section 11.8. The “Closing Merger Consideration” means One Hundred Eighty Five Million Dollars ($185,000,000), plus the Estimated Working Capital Surplus, if any, or minus the Estimated Working Capital Deficiency, if any, each as described in Section 3.1 below.

2.3 Payment of Closing Merger Consideration.

(a) Promptly following the Effective Time, Buyer shall deposit into an escrow with Wells Fargo Bank, National Association (the “Escrow Agent”) cash in an amount equal to Fifteen Million Dollars ($15,000,000) (the “Escrow Amount”), by wire transfer to an account specified by the Escrow Agent, which is to be held to secure Shareholders’ obligations under Section 3.4(a) and Article 11 below. The Escrow Amount shall be held and released by the escrow agent in accordance with an escrow agreement in the form of Exhibit B (the “Escrow Agreement”) to be executed at the Closing by Buyer, the Shareholders Representative and the Escrow Agent.

(b) Promptly following the receipt by Buyer after the Effective Time of a certificate representing Shares held by a Shareholder, Buyer shall deliver to such Shareholder by wire transfer of immediately available funds to an account designated by such Shareholder, an amount equal to such Shareholder’s portion of the Closing Merger Consideration, minus such Shareholder’s portion of the Escrow Amount, each as set forth on Schedule 2.2.

2.4 Lost Certificates. If any certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Shareholder claiming such certificate to be lost, stolen or destroyed, and an agreement by such Shareholder to indemnify against any claim that shall be made against the Surviving Corporation or Buyer with respect to

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such certificate, Buyer will deliver in exchange for such lost, stolen or destroyed certificate the consideration to be paid in respect of the Shares represented by such certificate as contemplated by this Agreement.

2.5 Stock Books. Immediately prior to the Closing Date, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of shares of Common Stock on the records of the Company. From and after the Closing Date, the Shareholders shall cease to have any rights with respect to the Shares except as otherwise provided for herein.

2.6 Stock Options. Hashem Akhavan-Tafti is the sole holder of all outstanding options and other Commitments. Mr. Akhavan-Tafti holds options to purchase 90,000 shares of unissued Common Stock. Mr. Akhavan-Tafti and the Company agree that at or before the Closing, Mr. Akhavan-Tafti will (i) exercise the Options as to 67,500 shares of Common Stock of the Company for $57.78 each and pay to the Company said exercise price, and (ii) will surrender for cancellation his remaining balance of the Options and deliver to the Company an executed general release with respect to the cancelled portion of the Options. Immediately upon exercise of such Options, and as a condition to the issuance and delivery of the 67,500 shares of Common Stock of the Company underlying such Options, Mr. Akhavan-Tafti will pay to the Company the amount necessary to satisfy the Company’s obligations to collect and pay over all applicable Taxes to the proper Governmental Authorities required by reason of such exercise. All Options and Commitments that are not exercised prior to the Closing shall be cancelled, retired, and extinguished and shall terminate and expire as of the Effective Time and the Company shall take all actions necessary to timely effectuate such termination. Neither Buyer nor the Surviving Corporation shall assume, become responsible for or otherwise assume any obligations with respect to, any outstanding options, warrants or other Commitments to purchase or otherwise acquire capital stock of the Company, and no consideration shall be delivered or deliverable in respect thereof.

2.7 Shares of Dissenting Shareholders. Notwithstanding anything in this Agreement to the contrary, as and if applicable, Shares that are issued and outstanding immediately prior to the Effective Time and which are held by Shareholders who did not vote in favor of the Merger (the “Dissenting Shares”), which Shareholders comply with all of the relevant provisions of the applicable Legal Requirements (the “Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive the Merger Consideration, unless and until such holders shall have failed to perfect or shall have effectively withdrawn or lost their rights to appraisal under applicable Legal Requirements. The Company shall give Buyer (a) prompt notice of any demands for appraisal of any Shares or attempted withdrawals of such demands and any other instruments served pursuant to applicable Legal Requirements and received by the Company relating to the Dissenting Shareholders’ rights of appraisal, and (b) the opportunity to direct, in its reasonable business judgment, all negotiations and proceedings with respect to demands for appraisal under applicable Legal Requirements. Neither the Company nor the Surviving Corporation shall, except with the prior written consent of Buyer, voluntarily make any payment with respect to, or settle or offer to settle, any such demand for payment. If any Dissenting Shareholder shall have failed to perfect or shall have effectively withdrawn or lost such right, such holder’s Shares shall thereupon be converted into the right to receive, as of the Effective Time, its pro rata portion of the Closing Merger Consideration pursuant to this Agreement.

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3. WORKING CAPITAL ADJUSTMENT.

3.1 Determination of Closing Merger Consideration; Initial Adjustment

(a) On or before a date not less than seven (7) days prior to the Closing Date, the Company shall prepare and deliver to Buyer (i) an estimated balance sheet as of the close of business on the date immediately preceding the Closing Date (the “Estimated Closing Balance Sheet”) and (ii) a good faith estimate of the Working Capital as of the Closing Date (the “Estimated Closing Working Capital”), calculated in a manner consistent with Schedule 3.1. The Estimated Closing Balance Sheet will be prepared in accordance with GAAP using the same accounting methods, policies, practices and procedures, with consistent classifications and estimation methodologies, as were used in the preparation of the Balance Sheet, to the extent applicable, and will not include any changes in assets or liabilities as a result of purchase accounting adjustments arising from or resulting as a consequence of the transactions contemplated hereby.

(b) On the Closing Date, (i) if the Estimated Closing Working Capital is less than the Target Working Capital, Buyer shall reduce the Closing Merger Consideration by the dollar amount of the shortfall (the “Estimated Working Capital Deficiency”), and (ii) if the Estimated Closing Working Capital exceeds the amount of Four Million Dollars ($4,000,000) (the “Target Working Capital”), Buyer shall increase the Closing Merger Consideration by the dollar amount of the excess, but in no event by more than Fifteen Million Dollars ($15,000,000) of such excess (the “Estimated Working Capital Surplus”). Buyer shall not be entitled to seek indemnification under Article 11 of this Agreement with respect to any facts specifically identified in making an adjustment under this Section 3.1 to the extent of the dollar amount of such adjustment.

3.2 Closing Balance Sheet. Within the sixty (60) day period following the Closing Date, Buyer shall prepare and deliver to the Shareholders Representative a balance sheet of the Company as of the close of business on the Closing Date (the “Closing Balance Sheet”) and a working capital statement (the “Closing Working Capital Statement”) setting forth Buyer’s calculation of the Working Capital as of the close of business on the Closing Date (the “Closing Working Capital”). In connection with the review of the Closing Balance Sheet, Buyer shall provide to the Shareholders Representative reasonable access to all relevant books and records and personnel of the Company.

3.3 Disagreement and Resolution.

(a) If the Shareholders Representative disagrees with the determination of the Closing Working Capital as shown on the Closing Working Capital Statement, the Shareholders Representative shall notify Buyer in writing of such disagreement within forty-five (45) days after delivery of the Closing Working Capital Statement to the Shareholders Representative, which notice shall describe the nature of any such disagreement in reasonable detail, identify the specific items involved and the dollar amount of each such disagreement and provide reasonable supporting documentation for each such disagreement. After the end of such forty-five (45) calendar day period, neither Buyer nor the Shareholders Representative may introduce additional disagreements with respect to any item in the Closing Working Capital Statement or

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increase the dollar amount of any disagreement, and any item not so identified shall be deemed to be agreed to by the Shareholders Representative and will be final and binding upon the Parties except to the extent that corollary adjustments thereto are necessarily required as a result of resolution of the disputed items that were so identified. If Shareholders Representative does not so notify Buyer of a disagreement within such forty-five (45) day period, then the Closing Working Capital delivered by Buyer pursuant to Section 3.2 shall be deemed to be final and binding on Buyer and Shareholders.

(b) Buyer and Shareholders Representative shall negotiate in good faith to resolve any such disagreement. If Buyer and the Shareholders Representative are unable to resolve all disagreements properly identified by the Shareholders Representative pursuant to Section 3.3(a) within fifteen (15) days after delivery to Buyer of written notice of such disagreements, then such disagreements shall be submitted for final and binding resolution to an independent accounting firm of nationally recognized standing to resolve such disagreements (the “Accounting Arbitrator”). The Accounting Arbitrator shall be an independent accounting firm of nationally recognized standing selected by mutual agreement of Buyer and the Shareholders Representative; provided, that (i) if, within five (5) business days after the Shareholders Representative have delivered the notice of disagreement to Buyer pursuant to Section 3.3(a), the Parties are unable to agree on such independent accounting firm to act as Accounting Arbitrator, Buyer and the Shareholders Representative shall each select an independent accounting firm of nationally recognized standing and such firms together shall select the independent accounting firm that will act as the Accounting Arbitrator, and (ii) if either Buyer or the Shareholders Representative does not select such independent accounting firm within five (5) days of written demand therefor by the other Party, the independent accounting firm selected by the other Party shall act as the Accounting Arbitrator. Each of Buyer and the Shareholders Representative may present a supporting brief to the Accounting Arbitrator (in which case the presenting Party shall provide a copy thereof to the other Party) within ten (10) days of appointment of the Accounting Arbitrator. Within ten (10) days of receipt of a supporting brief, the receiving Party may present a responsive brief to the Accounting Arbitrator (in which case it shall provide a copy thereof to the other Party). Each of Buyer and the Shareholders Representative may make an oral presentation to the Accounting Arbitrator (in which case it shall provide prompt prior notice of such presentation to the other Party) within twenty (20) days of appointment of the Accounting Arbitrator. The Accounting Arbitrator will only consider such briefs and presentations and those items and amounts set forth in the Closing Working Capital Statement as to which Buyer and the Shareholders Representative have disagreed within the time periods and on the terms specified in this Section 3.3 and shall not conduct an independent review. The Accounting Arbitrator shall deliver to Buyer and the Shareholders Representative, as promptly as practicable and in any event within sixty (60) days after such Accounting Arbitrator’s appointment, a written report setting forth the resolution of any such disagreement determined in accordance with the terms of this Agreement. The Accounting Arbitrator shall select the position of either Buyer or the Shareholders Representative as a resolution for each item of disagreement and may not impose an alternative resolution. The determination of the Accounting Arbitrator shall be final and binding and may be entered as a judgment in a court of competent jurisdiction. The fees, expenses and costs of the Accounting Arbitrator shall be borne equally by Buyer and Shareholders.

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3.4 Total Merger Consideration Adjustment.

(a) If the Closing Working Capital as finally determined in accordance with Section 3.3 is less than the Estimated Closing Working Capital (the difference between such amounts, the “Negative Working Capital Adjustment”), then, within seven (7) days following the final determination of the Closing Working Capital, Shareholders shall pay to Buyer the Negative Working Capital Adjustment. If the Negative Working Capital Adjustment has not been paid in cash by Shareholders to Buyer within such seven (7) day period, Buyer may, in its sole discretion, withdraw from the Escrow Amount any of the unpaid portion of the Negative Working Capital Adjustment plus interest payable under Section 3.4(c) below; provided however, that the amount Buyer may withdraw may not exceed the amount by which (i) the Escrow Amount plus any interest earned thereon, exceeds (ii) the amounts payable to Shareholders on interest earned on the Escrow Amount as of such date of withdrawal pursuant to Section 5.4 of the Escrow Agreement. In the event Buyer withdraws any amounts from the Escrow Amount pursuant to the preceding sentence, within seven (7) days after such withdrawal, Shareholders jointly and severally shall restore the Escrow Amount to the amount thereof immediately prior to Buyer’s withdrawal from such account by depositing with the Escrow Agent, for credit to the Escrow Amount, an amount equal to the amount so withdrawn.

(b) If the Closing Working Capital as finally determined in accordance with Section 3.3 is more than the Estimated Closing Working Capital (the difference between such amounts, the “Positive Working Capital Adjustment”) then, within seven (7) days following such final determination, Buyer shall pay to Shareholders an amount in cash equal to each Shareholder’s pro rata portion thereof according to the respective number of Shares held by each Shareholder immediately prior to the Closing. Notwithstanding the foregoing, in no event shall the aggregate amounts (if any) paid by Buyer pursuant to (i) this Section 3.4, and (ii) the Estimated Working Capital Surplus, exceed Fifteen Million Dollars ($15,000,000).

(c) If Buyer on the one hand or Shareholders on the other hand do not pay any of the amounts owed to the other pursuant to this Section 3.4, if any, within ten (10) days of when such payment is due, then such amounts shall incur interest at a rate of twelve percent (12%) per annum from the due date for such amount through the actual payment date for such amount.

(d) All payments made pursuant to this Section 3.4 shall be treated for all purposes as an adjustment to the Total Merger Consolidation.

4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SHAREHOLDERS. The Company and Shareholders each hereby represent and warrant to Buyer as follows, subject to any Part of the Disclosure Letter referenced in this Article 4 and delivered in accordance with Section 13.11(a).

4.1 Organization And Good Standing.

(a) Part 4.1 of the Disclosure Letter contains the complete and accurate fully diluted capitalization of the Company, including the identity of each stockholder (and Option holder) and the number of shares held by each. The Company is a corporation duly organized,

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validly existing, and in good standing under the laws of Michigan, with full corporate power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all its obligations under Applicable Contracts. The Company is not authorized to do business anywhere other than Michigan and the ownership or use of the properties owned or used by the Company or the nature of the activities conducted by the Company does not require the Company to qualify to do business as a foreign corporation under the laws of any other state or other jurisdiction. The Company neither owns nor controls, nor has any other equity investment or other interest in, directly or indirectly, any corporation, joint venture, partnership, association or other Person or Subsidiary.

(b) Prior to the date hereof, the Company has delivered, or made available to Buyer in the online data room established by the Company for purposes of the Contemplated Transactions (the “Data Room”), copies of the Organizational Documents of the Company as currently in effect. The Organizational Documents do not and neither the Company’s board of directors nor the shareholders have taken any action or entered into any agreement that would grant any shareholder “dissenters’ rights” or “appraisal rights” beyond those available under applicable Legal Requirements.

4.2 Authority; No Conflict.

(a) This Agreement constitutes the legal, valid, and binding obligation of each Shareholder and the Company, enforceable against each Shareholder and the Company in accordance with its terms. Upon the execution and delivery (i) by the Shareholders that are Executives of the Employment Agreements, (ii) by the Shareholders named as parties to the NexGen Company Agreement, (iii) by the Shareholders of the Non-competition Agreements and (ii) by the Shareholders Representative of the Escrow Agreement, (collectively, the “Shareholder Closing Documents”), the Shareholder Closing Documents will constitute the legal, valid, and binding obligations of Shareholders named as parties thereto or the Shareholders Representative, as the case may be, enforceable against such parties thereto in accordance with their respective terms. Each Shareholder and the Shareholders Representative, as the case may be, has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and the Shareholder Closing Documents to which they are named as parties and to perform its obligations under this Agreement and the Shareholder Closing Documents.

(b) Except as set forth in Part 4.2 of the Disclosure Letter, the execution and delivery of this Agreement by the Company, each Shareholder and the Shareholders Representative, as applicable, and the consummation of the transactions contemplated hereby does not and will not (i) violate any provision of, or result in the breach of the Organizational Documents of the Company, By-laws of the Company, or any resolution of the shareholders or directors or the Company in effect at the Closing; (ii) conflict with, result in a breach of or constitute a default under, terminate or result in the termination of, result in the acceleration of, create in any Party the right to accelerate, terminate, modify or cancel, or require any notice under any Applicable Contract, (iii) violate or breach any applicable law, rule, regulation, injunction, order, judgment, ruling, charge, decree or other restriction of any Governmental Body, (iv) result in the creation of any Encumbrance upon any of the properties or assets of the Company, or constitute an event which, after notice or lapse of time or both, would result in any such violation, breach, termination or creation of an Encumbrance or result in a violation or

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revocation of any required license, permit or approval from any Governmental Body or other third Party, (v) cause Buyer or the Company to become subject to, or to become liable for the payment of, any Tax; (vi) cause any of the assets owned by the Company to be reassessed or revalued by any taxing authority or other Governmental Body, or (vii) give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify any Business Agreement.

4.3 Capitalization. The authorized equity securities of the Company consist of one million shares of Common Stock, ten cents par value, 720,000 of which are issued and outstanding as of the date of this Agreement. Other than the Shares and options to purchase 90,000 shares of Common Stock of the Company held by Mr. Akhavan-Tafti (the “Options”), there are no authorized or issued and outstanding equity securities of the Company or any Commitments. Except as set forth in Part 4.3 of the Disclosure Letter, the Shareholders named in Part 4.3 of the Disclosure Letter are and will be on the Closing Date the only record and beneficial owners and holders of the Shares and Options, free and clear of all Encumbrances. Except as set forth in Part 4.3 of the Disclosure Letter, no other Person has ever held any beneficial or record ownership of any Shares, Options or Commitments. No legend or other reference to any purported Encumbrance appears upon any certificate representing the Shares or Options. All the Shares and Options have been duly authorized and validly issued and all the Shares are fully paid and nonassessable. All Shares issued upon exercise of the Options in accordance therewith will be duly authorized and validly issued and fully paid and nonassessable. None of the Shares was issued in violation of the Securities Act or any other Legal Requirement. Except for a 19.9% equity interest in NexGen, the Company does not own, or have any Contract to acquire, any equity securities or other securities of any Person or any direct or indirect equity or ownership interest in any other business.

4.4 Financial Statements. The Company and Shareholders have delivered to Buyer: (a) audited consolidated balance sheets of the Company as at December 31, in each of the years 2003 through 2005 (as at December 31, 2005, the “Balance Sheet”), and the related audited consolidated statements of income, changes in stockholders’ equity, and cash flow for each of the fiscal years then ended, including in each case the notes thereto, together with the report thereon of Plante & Moran, PLLC, independent certified public accountants, and (b) the unaudited consolidated balance sheet of the Company as at August 31, 2006 prepared by the Company (the “Interim Balance Sheet”) and the related unaudited consolidated statements of income, changes in stockholders’ equity, and cash flow for the eight (8) month period then ended. Such financial statements and notes fairly present in all material respects the financial condition and the results of operations, changes in stockholders’ equity, and cash flow of the Company as at the respective dates of and for the periods referred to in such financial statements, all in accordance with GAAP, subject, in the case of interim financial statements, to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be materially adverse to the Company) and the absence of notes (that, if presented, would not differ materially from those included in the Balance Sheet); the financial statements referred to in this Section 4.4 reflect the consistent application of such accounting principles throughout the periods involved. No financial statements of any Person other than the Company is required by GAAP to be included in the consolidated financial statements of the Company.

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4.5 Books And Records; Disclosure Controls.

(a) The books of account, minute books, stock record books, and other records of the Company, all of which have been made available to Buyer, are complete and correct and have been maintained in accordance with sound business practices including the maintenance of an adequate system of internal controls. At the Closing, all of those books and records will be in the possession of the Company.

(b) The minute books of the Company contain accurate and complete records of all meetings held of, and corporate action taken by, the shareholders, the Board of Directors, and committees of the Board of Directors of the Company, and no meeting of any such shareholders, Board of Directors, or committee has been held for which minutes have not been prepared and are not contained in such minute books. At the Closing, all of those books and records will be in the possession of the Company.

4.6 Title To Properties; Encumbrances. Part 4.6 of the Disclosure Letter contains a complete and accurate list of all real property, leaseholds, or other interests therein owned by the Company. The Company owns (with good and marketable title in the case of real property, subject only to the matters permitted by the following sentence) all its properties and assets (whether real, personal, or mixed and whether tangible or intangible) that it purports to own, including all of the properties and assets reflected in the Balance Sheet and the Interim Balance Sheet (except for personal property sold since the date of the Balance Sheet and the Interim Balance Sheet, as the case may be, in the Ordinary Course of Business), and all of the properties and assets purchased or otherwise acquired by the Company since the date of the Balance Sheet and the Interim Balance Sheet (except for personal property acquired and sold since the date of the Balance Sheet and the Interim Balance Sheet, as the case may be, in the Ordinary Course of Business and consistent with past practice), which subsequently purchased or acquired properties and assets (other than inventory and short term investments) are listed in Part 4.6 of the Disclosure Letter. For avoidance of doubt, the real property described in the first paragraph of section 2 of Part 4.6 of the Disclosure Letter (the “Livonia Property”) which will be contributed to NexGen as described in Section 6.10, will not comprise part of the real property owned by the Company as of the Closing Date; provided, however, that notwithstanding anything else the Livonia Property shall be treated as part of the owned real property of the Comany for purposes of this Section 4.6. All material properties and assets reflected in the Balance Sheet and the Interim Balance Sheet are free and clear of all Encumbrances and are not, in the case of real property, subject to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except with respect to all such properties and assets, (a) those items disclosed in Part 4.6 of the Disclosure Letter, (b) mortgages or security interests shown on the Balance Sheet or the Interim Balance Sheet as securing specified liabilities or obligations, with respect to which no default (or event that, with notice or lapse of time or both, would constitute a default) exists, (c) mortgages or security interests incurred in connection with the purchase of property or assets after the date of the Interim Balance Sheet (such mortgages and security interests being limited to the property or assets so acquired), with respect to which no default (or event that, with notice or lapse of time or both, would constitute a default) exists, (d) liens for current taxes not yet due, and (e) with respect to real property, zoning laws and other land use restrictions that do not impair the present or anticipated use of the property subject thereto. All buildings, plants, and structures owned by the Company lie wholly within the

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boundaries of the real property owned by the Company and do not encroach upon the property of, or otherwise conflict with the property rights of, any other Person.

4.7 Condition And Sufficiency Of Assets. The buildings, structures, improvements, automobiles, equipment and other tangible assets of the Company are structurally sound, are in good operating condition and repair, have been regularly and properly serviced and maintained in a manner that would not void or limit the coverage of any warranty thereon and are adequate for the uses to which they are being put, and none of such buildings, structures, improvements, automobiles, equipment or other tangible assets is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The (i) building, structures, improvements, automobiles, equipment and other tangible assets of the Company, and (ii) the Intellectual Property Assets (as defined below) and other intangible assets of the Company are, in the reasonable judgment of the Shareholders, sufficient for the continued conduct of the business of the Company after the Closing in substantially the same manner as conducted prior to the Closing. Except as otherwise set forth on Part 4.7 of the Disclosure Letter, no Shareholder owns or has the right to use any assets (whether tangible or intangible) that are used in the conduct of the business of the Company. None of the Intellectual Property Rights related to the Future Technology (as defined below) that may be transferred or assigned to NexGen pursuant to Section 6.10 hereof, is necessary to use, make, have made, market, lease, distribute, sell or offer for sale any current products or services of the Company or any products or services of the Company developed or introduced after the date hereof.

4.8 No Undisclosed Liabilities. Except as set forth in Part 4.8 of the Disclosure Letter, the Company has no liabilities or obligations of any nature (whether known or unknown and whether absolute, accrued, contingent, matured or unmatured or otherwise) except for liabilities or obligations reflected or reserved against in the Balance Sheet or the Interim Balance Sheet and current liabilities incurred in the Ordinary Course of Business since the respective dates thereof.

4.9 Taxes.

(a) (i) All Tax Returns required to be filed by or on behalf of the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such filed Tax Returns were true, complete and correct in all respects; (ii) all Taxes due and payable by or on behalf of the Company have been fully and timely paid, except to the extent adequately reserved therefor on the Company’s balance sheet, and adequate reserves or accruals for Taxes have been provided in the Company’s balance sheet with respect to any period through the date thereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing; and (iii) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitation) has been executed or filed with any taxing authority by or on behalf of the Company.

(b) The Company has complied with all applicable law relating to the payment and withholding of Taxes and has duly and timely withheld from any salaries, wages or other compensation paid to any employee or independent contractor. The Company has paid over

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to the appropriate taxing authorities, all amounts required to be so withheld and paid over for all periods under all applicable law.

(c) The Company has furnished to the Buyer true and correct copies of (i) all income or franchise Tax Returns of the Company relating to all taxable periods beginning after December 31, 2000, and (ii) any audit report issued within the last five years relating to any Taxes due from or with respect to the Company with respect to its income, assets or operations.

(d) No claim has been made by a taxing authority in a jurisdiction where the Company does not file a Tax Return that the Company is or may be subject to taxation by that jurisdiction.

(e) (i) All deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of the Company have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (ii) no issue has been raised by any taxing authority in any current or prior examination which, by application of the same or similar principles, could result in a proposed deficiency against the Company for any subsequent taxable period.

(f) Neither the Company nor any other Person on behalf of the Company has filed a consent pursuant to former Section 341(f) of the Code or agreed to have former Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as such term is defined in former Section 341(f)(4) of the Code) owned by the Company.

(g) Except as set forth in Part 4.12 of the Disclosure Letter, the Company will not be required to include any item of income in, or exclude any item of deduction from, its taxable income for any taxable period (or portion thereof) ending after the date hereof as a result of any (i) change in method of accounting for a taxable period ending on or prior to the date hereof under Section 481(c) of the Code (or any similar provision of state, local or foreign law); (ii) ”closing agreement” as described in Section 7121 of the Code or any predecessor provision thereof (or any similar provision of state, local or foreign law) executed on or prior to the date hereof; (iii) installment sale or open transaction disposition made on or prior to the date hereof; or (iv) prepaid amount received on or prior to the date hereof.

(h) No property owned by the Company is (i) property required to be treated as being owned by another Person pursuant to provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, (ii) constitutes “tax exempt use property” within the meaning of Section 168(h)(1) of the Code or (iii) is “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.

(i) The Company is not a party to any Tax allocation, indemnification or sharing agreement (or similar agreement or arrangement), whether written or not written, pursuant to which it will have any obligation to make any payments after the Closing.

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(j) The Company has not been a member of an affiliated group of entities required or permitted to file consolidated, combined or unitary Tax Returns including such entities.

(k) The Company does not have any liability for the Taxes of any Person under section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign law), as a transferee or successor, by Contract, or otherwise.

(l) The Company does not have any request for a ruling or determination letter in respect of Taxes pending between the Company and any taxing authority.

(m) There are no material Encumbrances as a result of any due and unpaid Taxes upon any of the assets of the Company.

(n) At no time during the five-year period ending on the date hereof was the Company a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.

(o) The Company has disclosed on all relevant Tax Returns all positions taken therein that could give rise to a substantial underpayment penalty within the meaning of Section 6662 of the Code (or comparable provisions of applicable state income tax laws). The Company has not participated in any “reportable transaction” or “listed transaction,” as those terms are defined in Section 6707A(c) of the Code (or comparable provisions of applicable state income tax laws).

(p) There is no Contract, plan or arrangement to which the Company is a party, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that could give rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code. There is no Contract, plan or arrangement to which the Company is a party or by which it is bound to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.

(q) No Shareholder is a foreign person within the meaning of Section 1445 of the Code.

(r) The Company does not have, and never has had, a permanent establishment or other taxable presence in any foreign country, as determined pursuant to applicable foreign law and any applicable Tax treaty or convention between the United States and such foreign country.

4.10 No Material Adverse Effect. Since the date of the Balance Sheet there has not been any Material Adverse Effect on the Company, and no event has occurred or circumstance exists that may result in such a Material Adverse Effect.

4.11 Employee Benefits.

(a) Part 4.11(a) of the Disclosure Letter contains a complete and accurate list of each plan, program, policy, practice, contract, agreement, or other arrangement providing for

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employment, compensation, deferred compensation, loans, severance, separation, termination pay, performance awards, bonus, pension, profit-sharing, retirement, supplemental retirement, equity, incentive, stock option, stock purchase, stock bonus, phantom stock, stock appreciation right, supplemental retirement, medical, dental, vision, life insurance, disability insurance, welfare benefits, fringe benefits, cafeteria benefits (Section 125 of the Code), or other benefits, including, without limitation, each “employee benefit plan” within the meaning of Section 3(3) of ERISA which is or has been sponsored, maintained, contributed to, or required to be contributed to by the Company and any ERISA Affiliate, for the benefit of any person who performs or who has performed services for the Company or with respect to which the Company or any ERISA Affiliate has or may have any liability or obligation (each a “Company Plan”, and collectively, the “Company Plans”).

(b) Prior to the date hereof, the Company and Shareholders have delivered to Buyer, or have made available to Buyer in the Data Room:

(i) true, correct and complete copies of each Company Plan and its related plan documents, including, without limitation, (A) adoption agreements, trust documents, group annuity contracts, plan amendments, insurance policies or contracts (including any policies relating to fiduciary liability insurance covering the fiduciaries of such Company Plan), participant agreements, employee booklets, administrative service agreements, summary plan descriptions and summaries of material modification, nondiscrimination tests for the last three (3) plan years, and (B) with respect to each Company Plan that is subject to ERISA reporting requirements, true, correct and complete copies of the Form 5500 series annual reports filed for the last three (3) plan years, including all audits, financial statements, schedules and attachments thereto, where applicable;

(ii) all personnel, payroll, and employment manuals and policies;

(iii) all collective bargaining agreements pursuant to which contributions have been made or obligations incurred (including both pension and welfare benefits) by the Company and any ERISA Affiliates, and all collective bargaining agreements pursuant to which contributions are being made or obligations are owed by such entities;

(iv) a written description of any Company Plan that is not otherwise in writing;

(v) a copy of the standard notices to employees of their rights under ERISA § 601 et seq. and IRC § 4980B; and

(vi) with respect to any Company Plan intended to be tax-qualified under Section 401(a) of the Code, a copy of the most recent favorable IRS determination letter as to its tax-qualified status.

(c) Each Company Plan has been administered and operated in accordance with its terms and maintained in compliance with the requirements prescribed by any and all Legal Requirements, including, but not limited to, ERISA and the Code. The Company has performed all obligations required to be performed by it under, is not in any material respect in default under or violation of and has no Knowledge of any material default or violation by any

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other party to, any of the Company Plans. With respect to each Company Plan that is subject to ERISA, the Company has prepared in good faith and timely filed all requisite governmental reports (which were true and correct as of the date filed) and has properly and timely filed and distributed or posted all notices, reports and summary plan descriptions to employees required to be filed, distributed or posted. All contributions, payments and premiums required to be made or paid by the Company or any ERISA Affiliate to, or with respect to any Company Plan, have been made or paid on or before their due dates, or if not yet due, have been properly accrued for in the ordinary course of business, consistent with past practices. In addition, with respect to each Company Plan intended to include a Code Section 401(k) arrangement, the Company and each ERISA Affiliate have at all times made timely deposits of employee salary reduction contributions and participant loan repayments, as determined pursuant to regulations issued by the United States Department of Labor.

(d) Each Company Plan intended to be tax-qualified under Section 401(a) of the Code has obtained from the IRS a favorable determination letter, and nothing has occurred since the issuance of such letter that could reasonably be expected to cause the loss of the tax-qualified status of any such Company Plan.

(e) No transaction prohibited by ERISA § 406 and no “prohibited transaction” under IRC § 4975(c) have occurred with respect to any Company Plan. Neither the Company nor any ERISA Affiliate is subject to any liability or penalty under Section 4976 through 4980 of the Code or Title I or ERISA with respect to any Company Plan. Other than claims for benefits submitted by participants or beneficiaries, no suit, administrative proceeding, action, claim against, or legal proceeding involving, any Company Plan is pending or, to the Knowledge of the Company, is threatened, including any audit or inquiry by the IRS or the United States Department of Labor.

(f) No Company Plan that is an employee welfare benefit plan as defined in Section 3(1) of ERISA is a self-insured or self-funded plan, including any plan to which a stop-loss policy applies. No event has occurred or circumstance exists that could result in a material increase in premium costs of Company Plans that are insured. No Company Plan promises or provides retiree medical or other retiree welfare benefits to any employee of the Company or an ERISA Affiliate, except as required under ERISA § 601 et seq. and IRC § 4980B. The Company and all ERISA Affiliates have complied with the provisions of ERISA § 601 et seq. and IRC § 4980B.

(g) Neither the Company nor any ERISA Affiliate has ever maintained, established, sponsored, participated in, contributed to, or otherwise incurred any obligation or liability (including without limitation, contingent liability) under any “multiemployer plan” (as defined in Section 3(37) of ERISA), any “multiple employer plan” (as defined in Section 413(c) of the Code) or to any “pension plan” (as defined in Section 3(2) of ERISA) that is subject to Title IV of ERISA or Section 412 of the Code. There has been no “reportable event” (as defined in Section 4043(b) of ERISA) with respect to any Company Plan. Neither the Company nor any ERISA Affiliate has incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA) whether or not waived by the IRS, involving any Plan subject to Section 412 of the Code or Part 3 of Subtitle B of Title I of ERISA.

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(h) Except as set forth in Part 4.11(h) of the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or other service provider of the Company to severance benefits or any other payment (including, without limitation, unemployment compensation, golden parachute bonus or benefits under any Company Plan), or (ii) accelerate the time of payment or vesting of any such benefits, or increase the amount of compensation due any such employee or service provider. No benefit payable or which may become payable by the Company or any ERISA Affiliate pursuant to any Company Plan or as a result of or arising under this Agreement shall constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) which is subject to the imposition of an excise tax under Section 4999 of the Code or the deduction for which would not be disallowed by reason of Section 280G of the Code. Each Company Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms, without material liability to the Buyer or the Company (other than ordinary administration expenses typically incurred in a termination event).

(i) The Company does not now, nor has it ever, had the obligation to, maintain, establish, sponsor, participate in, or contribute to, any Company Plan for the benefit of employees outside the United States.

(j) The Company has neither granted, nor is a party to, any contract that grants any compensation, equity award, or bonus, that fails to comply in good faith with the provisions of Section 409A of the Code.

4.12 Compliance With Legal Requirements; Governmental Authorizations.

(a) Except as set forth in Part 4.12(a) of the Disclosure Letter:

(i) the Company is in material compliance with each material Legal Requirement that is or was applicable to it or to the conduct or operation of its business or the ownership or use of any of its assets;

(ii) no event has occurred or circumstance exists that (with or without notice or lapse of time) (A) may constitute or result in a violation by the Company or NexGen or a failure on the part of the Company or NexGen to comply with, any material Legal Requirement, or (B) may give rise to any obligation on the part of the Company or NexGen to undertake, or to bear all or any portion of the cost of, any remedial action of any nature; and

(iii) the Company has not received any written notice or other communication from any Governmental Body or any other Person regarding (A) any actual, alleged, possible, or potential violation of, or failure to comply with, any Legal Requirement, or (B) any actual, alleged, possible, or potential obligation on the part of the Company or NexGen to undertake, or to bear all or any portion of the cost of, any remedial action of any nature.

(b) Part 4.12(b) of the Disclosure Letter contains a complete and accurate list of each material Governmental Authorization that is held by the Company or that otherwise relates to the business of, or to any of the assets owned or used by, the Company. Each Governmental Authorization listed or required to be listed in Part 4.12(b) of the Disclosure

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Letter is valid and in full force and effect. Except as set forth in Part 4.12(b) of the Disclosure Letter:

(i) the Company is in full compliance with all of the terms and requirements of each Governmental Authorization identified or required to be identified in Part 4.12(b) of the Disclosure Letter;

(ii) no event has occurred or circumstance exists that may (with or without notice or lapse of time) (A) constitute or result directly or indirectly in a violation of or a failure to comply with any term or requirement of any Governmental Authorization listed or required to be listed in Part 4.12(b) of the Disclosure Letter or (B) result directly or indirectly in the revocation, withdrawal, suspension, cancellation, or termination of, or any modification to, any Governmental Authorization listed or required to be listed in Part 4.12(b) of the Disclosure Letter;

(iii) the Company has not received any written notice or other communication from any Governmental Body or any other Person regarding (A) any actual, alleged, possible, or potential violation of or failure to comply with any term or requirement of any Governmental Authorization, or (B) any actual, proposed, possible, or potential revocation, withdrawal, suspension, cancellation, termination of, or modification to any Governmental Authorization; and

(iv) all applications required to have been filed for the renewal of the Governmental Authorizations listed or required to be listed in Part 4.12(b) of the Disclosure Letter have been duly filed on a timely basis with the appropriate Governmental Bodies, and all other filings required to have been made with respect to such Governmental Authorizations have been duly made on a timely basis with the appropriate Governmental Bodies.

The Governmental Authorizations listed in Part 4.12(b) of the Disclosure Letter collectively constitute all of the material Governmental Authorizations necessary to permit the Company to lawfully conduct and operate its business in the manner it currently conducts and operates such business and to permit the each of Company and NexGen to own and use its assets in the manner in which it currently owns and uses such assets.

4.13 Legal Proceedings; Orders.

(a) Except as set forth in Part 4.13 of the Disclosure Letter (the “Disclosed Proceedings”), there is no pending Proceeding:

(i) that has been commenced by or against the Company or NexGen or that otherwise relates to or may affect the business of, or any of the assets owned or used by the Company or NexGen; or

(ii) that challenges, or that may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions.

To the Knowledge of the Company, (1) no such Proceeding has been threatened, and (2) no action has been taken or not taken, and no event has occurred or circumstance exists, that may

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give rise to or serve as a basis for any such Proceeding. Prior to the date hereof, the Company and Shareholders have delivered to Buyer, or made available to Buyer in the Data Room, copies of all pleadings, correspondence, and other documents relating to each Disclosed Proceeding listed in Part 4.13 of the Disclosure Letter. Other than as specifically set forth in Part 4.13 of the Disclosure Letter, the Disclosed Proceedings will not have a Material Adverse Effect on the Company.

(b) Except as set forth in Part 4.13 of the Disclosure Letter:

(i) there is no Order to which the Company or NexGen, or any of the assets owned or used by the Company or NexGen, is subject;

(ii) no Shareholder is subject to any Order that relates to the business of, or any of the assets owned or used by, the Company or NexGen; and

(iii) no officer, director, agent, or employee of the Company or NexGen is subject to any Order that prohibits such officer, director, agent, or employee from engaging in or continuing any conduct, activity, or practice relating to the business of the Company or NexGen.

(c) Except as set forth in Part 4.13 of the Disclosure Letter:

(i) the Company and NexGen is in full compliance with all of the terms and requirements of each Order to which it, or any of the assets owned or used by it, is or has been subject;

(ii) no event has occurred or circumstance exists that may constitute or result in (with or without notice or lapse of time) a violation of or failure to comply with any term or requirement of any Order to which the Company or NexGen, or any of the assets owned or used by the Company or NexGen, is subject; and

(iii) neither the Company nor NexGen has received any written notice or other communication from any Governmental Body or any other Person regarding any actual, alleged, possible, or potential violation of, or failure to comply with, any term or requirement of any Order to which the Company or NexGen, or any of the assets owned or used by the Company or NexGen, is or has been subject.

4.14 Absence Of Certain Changes And Events. Except as set forth in Part 4.14 of the Disclosure Letter and those actions described in Section 6.10 below, since the date of the Balance Sheet, the Company has conducted its business only in the Ordinary Course of Business and there has not been any:

(a) Other than Mr. Akhavan-Tafti’s pre-Closing exercise of Options as set forth in Section 2.6, change in the Company’s authorized or issued capital stock; grant of any stock option, “phantom” stock right or right to purchase shares of capital stock of the Company; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock;

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(b) Contracts involving the sale of products by the Company that provide for profit margins to the Company less than the historical average margins on similar Contracts entered into in the Ordinary Course of Business prior to the date of this Agreement (and Buyer and Buyer Sub shall in no way have any input into Company’s pricing prior to the Closing);

(c) capital expenditures in excess of $50,000 in the aggregate;

(d) amendment to the Organizational Documents of the Company;

(e) payment or increase by the Company of any bonuses, salaries, or other compensation to any stockholder, director, officer, or (except in the Ordinary Course of Business) employee or (except as required by this Agreement) entry into any employment, severance, or similar Contract with any director, officer, or employee;

(f) adoption of, or increase in the payments to or benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any employees of the Company;

(g) damage to or destruction or loss of any asset or property of the Company, whether or not covered by insurance, which, taken as a whole, are materially adverse to the business, operations, assets or financial condition of the Company;

(h) entry into, termination of, or receipt of notice of termination of (i) any lease, license, distributorship, dealer, sales representative, joint venture, credit, or similar agreement, or (ii) any Contract or transaction involving a total remaining commitment by or to the Company of at least $50,000;

(i) sale (other than sales of inventory in the Ordinary Course of Business), lease, or other disposition of any asset or property of the Company or mortgage, pledge, or imposition of any lien or other Encumbrance on any material asset or property of the Company, including the sale, lease, or other disposition of any of the Intellectual Property Assets;

(j) cancellation or waiver of any claims or rights with a value to the Company in excess of $50,000 in the aggregate;

(k) material change in the accounting methods used by the Company;

(l) Contract whereby the Company has or may incur any obligation or liability (fixed or contingent) which is not in the Ordinary Course of Business or which is materially adverse to the business, operations, assets or financial condition of the Company;

(m) change in employee relations which is, or is reasonably likely to be, materially adverse to the business, operations, assets or financial condition of the Company or on the relationships between the employees and the Company; or

(n) agreement, whether oral or written, by the Company to do any of the foregoing.

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Since the date of the Balance Sheet, the Company has operated its business in the Ordinary Course of Business so as to preserve the business of the Company intact, to keep available the services of its employees, and to preserve the goodwill of its suppliers, customers, distributors and others having business relations with it.

4.15 Relations With Suppliers. Except as set forth in Part 4.15 of the Disclosure Letter, the Company has not requested and no supplier has canceled any contract or order for provisions of, and to the Knowledge of the Company no supplier has Threatened not to provide products, supplies, or services (including utilities) to the Company within the 12 months prior to the date of this Agreement. The Company’s relationships with its suppliers, and to the Knowledge of the Company, the relationships of each such supplier to its suppliers, are good and the Company has no Knowledge of anything that would lead it to conclude any such relationship may be in jeopardy. There has not been any change in the business relationship, and there has been no dispute, between the Company and any such supplier that would reasonably be expected to be materially adverse to the business, operations, assets or financial condition of the Company. No material supplier has materially reduced, or to the Knowledge of the Company intends to materially reduce, its supplies to the Company.

4.16 Relations With Customers. Except as set forth in Part 4.16 of the Disclosure Letter, no customer that is a party to any of the Business Agreements set forth under the heading “Supply Contracts” in Part 4.17(a) of the Disclosure Letter (each, a “Supply Contract Customer”) has canceled any Contract or portion thereof, there has been no material dispute with any Supply Contract Customer and to the Knowledge of the Company no Supply Contract Customer has Threatened to cease purchasing products or services from the Company within the 12 months prior to the date of this Agreement. The Company’s relationships with the Supply Contract Customers are good, and the Company has no Knowledge of anything that would lead it to conclude that any such relationship may be in jeopardy.

4.17 Applicable Contracts; No Defaults.

(a) Part 4.17(a) of the Disclosure Letter contains a complete and accurate list, and the Company and Shareholders have, prior to the date hereof, delivered or made available to Buyer in the Data Room, true and complete copies, of the following (the “Business Agreements”):

(i) each Applicable Contract that involves performance of services or delivery of goods or materials by the Company of an amount or value in excess of $50,000 annually;

(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to the Company of an amount or value in excess of $50,000 annually;

(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of the Company in excess of $50,000;

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(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with terms of less than one year);

(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;

(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;

(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;

(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or limit the freedom of the Company to engage in any line of business or to compete with any Person;

(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;

(x) each power of attorney that is currently effective and outstanding;

(xi) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damages;

(xii) each Applicable Contract for capital expenditures in excess of $50,000;

(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in the Ordinary Course of Business; and

(xiv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.

(b) Except as set forth in Part 4.17(b) of the Disclosure Letter:

(i) No Shareholder (nor any Related Person of any Shareholder) has or may acquire any rights under, or have or may become subject to any obligation or liability under, an Applicable Contract; and

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(ii) no officer, director, agent, employee, consultant, or contractor of an Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of an Company, or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.

(c) Except as set forth in Part 4.17(c) of the Disclosure Letter, each Business Agreement identified or required to be identified in Part 4.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.

(d) Except as set forth in Part 4.17(d) of the Disclosure Letter:

(i) the Company is, and has been, in compliance with all applicable material terms and requirements of each Business Agreement;

(ii) to the Knowledge of the Company each other Person that has or had any obligation or liability under any Business Agreement under which the Company has or had any rights is in compliance with all applicable material terms and requirements of such Business Agreement;

(iii) to the Knowledge of the Company no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Business Agreement; and

(iv) the Company has not given to or received from any other Person, at any time, any written notice or other communication regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Business Agreement.

(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Business Agreements with any Person and no such Person has made written demand for such renegotiation.

(f) The Business Agreements relating to the sale, design, manufacture, or provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.

4.18 Insurance.

(a) Prior to the date hereof, the Company and Shareholders have delivered, or made available to Buyer in the Data Room (i) true and complete copies of all policies of insurance to which the Company is a party or under which the Company, or any director of the Company, is or has been covered at any time; (ii) true and complete copies of all pending applications for policies of insurance; and (iii) any statement by the auditor of the Company’s

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financial statements with regard to the adequacy of such entity’s coverage or of the reserves for claims.

(b) Part 4.18(b) of the Disclosure Letter describes (i) any self-insurance arrangement by or affecting the Company, including any reserves established thereunder; (ii) any contract or arrangement, other than a policy of insurance, for the transfer or sharing of any risk by the Company; and (iii) all obligations of the Company to third parties with respect to insurance (including such obligations under leases and service agreements) and identifies the policy under which such coverage is provided.

(c) Part 4.18(c) of the Disclosure Letter sets forth, by year for the five (5) years preceding the signing of this Agreement (i) a summary of the loss experience under each policy; (ii) a statement describing each claim under an insurance policy for an amount in excess of $50,000, which sets forth (A) the name of the claimant; (B) a description of the policy by insurer, type of insurance, and period of coverage; and (C) the amount and a brief description of the claim; and (iii) a statement describing the loss experience for all claims that were self-insured, including the number and aggregate cost of such claims.

(d) Except as set forth on Part 4.18(d) of the Disclosure Letter, (i) all policies to which the Company is a party or that provide coverage to any Shareholder, the Company, or any director or officer of the Company (A) are valid, outstanding, and enforceable; (B) taken together, provide adequate insurance coverage for the assets and the operations of the Company for all risks to which the Company is normally exposed; (C) are sufficient for compliance with all Legal Requirements and Applicable Contracts to which the Company is a party or by which it is bound; (D) will continue in full force and effect following the consummation of the Contemplated Transactions; and (E) except with respect to Workers Compensation Insurance, do not provide for any retrospective premium adjustment or other experienced based liability on the part of the Company; (ii) neither any Shareholder nor the Company has received (A) any refusal of coverage or any notice that a defense will be afforded with reservation of rights, or (B) any notice of cancellation or any other indication that any insurance policy is no longer in full force or effect or will not be renewed or that the issuer of any policy is not willing or able to perform its obligations thereunder; (iii) the Company has paid all premiums due, and has otherwise performed all of its respective obligations, under each policy to which an Company is a party or that provides coverage to an Company or director thereof; and (iv) to the Knowledge of the Company the Company has given notice to the insurer of all claims that may be insured thereby.

4.19 Environmental Matters. Except as set forth in Part 4.19 of the Disclosure Letter:

(a) The Company is and at all times has been, in compliance in all material respects with, and has not been and is not in violation of or liable under, any Environmental Law. The Company has not received and, to the Knowledge of the Company, no other Person for whose conduct it is or may be held to be responsible has received, any alleged, actual or Threatened order, notice, or other communication from any Person, including without limitation, any Governmental Body (i) of any alleged, actual or potential violation or failure by the Company or such Person to comply with any Environmental Law, (ii) in connection with the Release of Hazardous Substance by the Company or such Person, (iii) in connection with any remedial investigation, removal or response action pursuant to any Environmental Law, or (iv) of

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any actual or potential obligation to undertake or bear the cost of any Environmental, Health, and Safety Liabilities with respect to any of the Facilities in which the Company has or had an interest, or with respect to any property or Facility at, from or to which Hazardous Substances were generated, manufactured, refined, transferred, received, imported, used, transported, treated, stored, handled, disposed, recycled, or processed by the Company or any other Person for whose conduct the Shareholder is or may be held responsible.

(b) There are no pending or, to the Knowledge of the Company, Threatened, claims, Encumbrances, or other restrictions of any nature, resulting from any Environmental, Health, and Safety Liabilities or arising under or pursuant to any Environmental Law, with respect to or affecting any of Facilities or any other properties or assets (whether real, personal, or mixed) of the Company.

(c) There are no pending or, to the Knowledge of the Company, Threatened Environmental, Health, and Safety Liabilities with respect to the Facilities or with respect to any other properties and assets (whether real, personal, or mixed) in which the Company (or any predecessor) has or had an interest, or at any property geologically or hydrologically adjoining the Facilities or any such other property or assets and to the Knowledge of the Company no other Person for whose conduct it is or may be held responsible has any Environmental, Health, and Safety Liabilities.

(d) Except as set forth in Part 4.19 of the Disclosure Letter there are no Hazardous Substances present on or in the Environment at the Facilities or at any geologically or hydrologically adjoining property, including any Hazardous Substances contained in barrels, above or underground storage tanks, landfills, land deposits, dumps, equipment (whether moveable or fixed) or other containers, either temporary or permanent, and deposited or located in land, water, sumps, or any other part of the Facilities or such adjoining property, or incorporated into any structure therein or thereon. Except as set forth in Part 4.19 of the Disclosure Letter, neither the Company, nor any other Person for whose conduct it is or may be held responsible, nor to the Knowledge of the Company any other Person, has permitted or conducted, or is aware of, any Hazardous Activity conducted with respect to the Facilities or any other properties or assets (whether real, personal, or mixed) in which the Company has or had an interest except in full compliance with all applicable Environmental Laws.

(e) There has been no Release or, to the Knowledge of the Company, Threat of Release, of any Hazardous Substances at or from the Facilities or at any other locations where any Hazardous Substances were generated, manufactured, refined, transferred, produced, imported, used, stored, or processed from or by the Facilities, or from or by any other properties and assets (whether real, personal, or mixed) in which the Company has or had an interest, or any geologically or hydrologically adjoining property, whether by the Company, or, to the Knowledge of the Company, any other Person.

(f) The Company has delivered to Buyer true and complete copies and results of any reports, studies, analyses, tests, or monitoring possessed or initiated by the Company or any of the Shareholders pertaining to Hazardous Substances or Hazardous Activities in, on, or under the Facilities, or concerning compliance by the Company, or any other Person for whose conduct it is or may be held responsible, with Environmental Laws.

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(g) The Company possesses all licenses, permits, franchises, approvals, authorizations, consents or orders of, or filings with, any Governmental Body or any other Person, necessary for the conduct of, or relating to the operation of the Company required under Environmental Laws for its operations as currently conducted.

(h) Neither this Agreement nor the consummation of the transactions contemplated hereby will result in any obligations for site investigation or cleanup, or notification to or consent of any Governmental Body or third parties under any Environmental Laws (including any so called “transaction-triggered” or “responsible property transfer” laws and regulations).

(i) To the Knowledge of the Company, no real property that is or has been owned or leased by the Company is currently listed on the National Priorities List or the Comprehensive Environmental Response, Compensation and Liability Information System, both promulgated under CERCLA, or on any analogous state list

(j) To the Knowledge of the Company, no off site location at which the Company or any other Person for whose conduct the Company may be responsible has disposed or arranged for the disposal of any waste is listed on the National Priorities List or on any analogous state list.

(k) There are no Encumbrances arising under any Environmental Laws on any Facility arising as a result of any actions taken or omitted to be taken by the Company or any other Person for whose conduct the Company may be responsible, or any of their predecessors and no actions have been taken by any Governmental Body with respect to any Facility to impose an environmental Encumbrance with respect to such Facility as a result of any such actions.

4.20 Employees.

(a) Part 4.20 of the Disclosure Letter contains a complete and accurate list of the following information for each employee of the Company, including each employee on leave of absence or layoff status: name; job title; current compensation paid or payable and any change in compensation; vacation accrued; and service credited for purposes of vesting and eligibility to participate under any of the Company’s pension, retirement, profit-sharing, thrift-savings, deferred compensation, stock bonus, stock option, cash bonus, employee stock ownership (including investment credit or payroll stock ownership), severance pay, insurance, medical, welfare, or vacation plan, other Employee Pension Benefit Plan or Employee Welfare Benefit Plan, or any other employee benefit plan or any Director Plan.

(b) To the Knowledge of the Company, no employee of the Company is a party to, or is otherwise bound by, any agreement or arrangement, including any confidentiality, non-competition, or proprietary rights agreement, between such employee and any other Person that in any way adversely affects or will affect (i) the performance of his duties as an employee of the Company, or (ii) the ability of the Company to conduct its business. To the Knowledge of the Company, no officer, or other key employee of the Company intends to terminate his employment with the Company.

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(c) Part 4.20 of the Disclosure Letter also contains a complete and accurate list of the following information for each retired employee or director of the Company, or their dependents, receiving benefits or scheduled to receive benefits in the future: name, pension benefit, pension option election, retiree medical insurance coverage, retiree life insurance coverage, and other benefits from the Company.

4.21 Labor Relations; Compliance. The Company is not nor has been a party to any collective bargaining or other labor Contract. There has not been, there is not presently pending or existing, and to the Knowledge of the Company, there is not Threatened, (a) any strike, slowdown, picketing, work stoppage, or employee grievance process, (b) any Proceeding against or affecting the Company relating to the alleged violation of any Legal Requirement pertaining to labor relations or employment matters, including any charge or complaint filed by an employee or union with the National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable Governmental Body, organizational activity, or other labor or employment dispute against or affecting the Company or its premises, or (c) any application for certification of a collective bargaining agent. To the Knowledge of the Company, no event has occurred or circumstance exists that could provide the basis for any work stoppage or other labor dispute. There is no lockout of any employees by the Company, and no such action is contemplated by the Company. The Company has complied in all material respects with all applicable laws relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, collective bargaining, the payment of social security and similar taxes, occupational safety and health, and plant closing. The Company is not liable for the payment of any compensation, damages, taxes, fines, penalties, or other amounts, however designated, for failure to comply with any of the foregoing Legal Requirements.

4.22 Intellectual Property.

(a) Part 4.22(a) of the Disclosure Letter contains a complete and accurate list of each patent, registered and unregistered trademark, service mark, trade name, material copyright, material trade dress and logo, and applications for any of the foregoing, owned by or licensed to the Company and used in its business as presently conducted as of the date hereof. For avoidance of doubt, those components of the Intellectual Property Assets comprising the Future Technology which will be contributed to NexGen as described in Section 6.10, will not comprise part of the Intellectual Property Assets as of the Closing Date; provided, however, that notwithstanding anything else such components shall be treated as part of the Intellectual Property Assets for purposes of this Section 4.22. The Company has in its possession or control correct and complete copies of all documents (including without limitation invention disclosures, patent notebooks, patents, registration certificates, renewal certificates, application prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each Intellectual Property Asset. To the Knowledge of the Company, all the Patents listed in Part 4.22(a) of the Disclosure Letter are valid and enforceable and are current in the payment of all outstanding maintenance fees or Taxes or actions falling due on or prior to the Closing Date. Except as set forth in Part 4.22(a) of the Disclosure Letter, to the Knowledge of the Company, no Patent listed on Part 4.22(a) of the Disclosure Letter has been or is now involved in any interference, reissue, reexamination or opposition proceeding. Except as set forth on Part 4.22(a) of the Disclosure Letter, to the Knowledge of the Company, there is no

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patent or patent application of any Person that interferes with any of the Patents listed on Part 4.22(a) of the Disclosure Letter.

(b) The Intellectual Property Assets constitute all the Intellectual Property Rights necessary to conduct the business of the Company in the manner currently conducted as of the date hereof.

(c) The Intellectual Property Rights owned or licensed by the Company constitutes all the intellectual property necessary to conduct the business of the Company in the manner currently conducted as of the date hereof.

(d) Except as set forth on Part 4.22(d) of the Disclosure Letter, (A) the Company has good title to each Intellectual Property Asset owned by it, free and clear of all Encumbrances, and (B) the Company owns or has the right to use pursuant to license, sublicense, agreement or permission all items of Intellectual Property Assets.

(e) Except as set forth on Part 4.22(e) of the Disclosure Letter, to the Knowledge of the Company, the Company is not infringing on or otherwise violating, the Intellectual Property Rights of any other Person. No proceedings have been instituted against or notices received by the Company alleging that the Company’s business as presently conducted or products as currently sold infringes on or otherwise violates any Intellectual Property Rights of a third party.

(f) Part 4.22(f) of the Disclosure Letter contains a complete and accurate summary (identifying the licensor, the licensee, the license fee and the royalty rate) of all of the licenses and agreements for the disposition or acquisition of Intellectual Property Rights under which the Company has paid or received royalties or other amounts within the preceding five (5) years, except for any license implied by the sale of a product and perpetual, paid-up licenses for commonly available software programs with an individual value of less than $10,000. The Company has in its possession or control and prior to the date hereof has furnished Buyer with, or made available to Buyer in the Data Room, correct and complete, fully-executed copies of all of the licenses and agreements (as amended to date) that are identified in Part 4.22(f) of the Disclosure Letter. The Company, and to the Knowledge of the Company each other party thereto, is in full compliance with all of its duties and obligations under the licenses in Part 4.22(f) of the Disclosure Letter. There are no outstanding and, to the Knowledge of the Company, no threatened, disputes or disagreements with respect to any such license or agreement. To the Knowledge of the Company, no third party has interfered with, infringed upon or misappropriated any Intellectual Property Assets.

(g) The Company has not received any written notice claiming that any of the products which it presently manufactures and sells or that any process or know-how which it presently uses infringes or is alleged to infringe any patent or other proprietary right of any other Person.

(h) Except as set forth in Part 4.22(h) of the Disclosure Letter, all former and current employees of the Company have executed written Contracts with the Company that assign to the Company all rights to any and all Intellectual Property Assets including work-

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made-for-hire agreements. To the Knowledge of the Company, no employee of the Company has entered into any Contract that restricts or limits in any way the scope or type of work in which the employee may be engaged or requires the employee to transfer, assign, or disclose information concerning his work to anyone other than the Company. No former or current employee, except those set forth in Part 4.22(h) of the Disclosure Letter, has filed, asserted in writing or, to the Knowledge of the Company, Threatened any claim against the Company in connection with his involvement in or with Intellectual Property Assets which are used in and material to Company’s business. To the Knowledge of the Company, no current or former employee has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed by the Company which patents or applications have not been assigned to the Company.

(i) No former or current shareholder, director or officer, employee or independent contractor of the Company has any right to receive royalty payments or license fees from the Company or NexGen.

(j) To the Knowledge of the Company, the Company has taken all reasonable precautions to protect the secrecy, confidentiality and value of its proprietary information, technical information and other Trade Secrets.

(k) None of the Intellectual Property Rights related to the Future Technology that may be transferred or assigned to NexGen pursuant to Section 6.10 hereof, is necessary to use, make, have made, market, lease, distribute, sell or offer for sale any current products or services of the Company.

4.23 Certain Payments. Neither the Company nor any director, officer, agent, or employee of the Company, or any other Person associated with or acting for or on behalf of the Company, has directly or indirectly (a) made any contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money, property, or services (i) to obtain favorable treatment in securing business, (ii) to pay for favorable treatment for business secured, (iii) to obtain special concessions or for special concessions already obtained, for or in respect of the Company or any affiliate of the Company, or (iv) in violation of any Legal Requirement, (b) established or maintained any fund or asset that has not been recorded in the books and records of the Company.

4.24 Disclosure.

(a) No representation or warranty of the Company or Shareholders in this Agreement and no statement in the Disclosure Letter omits to state a material fact necessary to make the statements herein or therein, in light of the circumstances in which they were made, not misleading.

(b) No notice given pursuant to Section 6.5 will contain any untrue statement or omit to state a material fact necessary to make the statements therein or in this Agreement, in light of the circumstances in which they were made, not misleading.

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(c) There is no fact, event or condition to the Knowledge of the Company that has specific application to the Company that has a Material Adverse Effect, or would reasonably be expected to have a Material Adverse Effect, on the Company.

4.25 Relationships With Related Persons. Except as set forth in Part 4.25 of the Disclosure Letter, none of the Shareholders nor any Related Person of any Shareholder or of the Company have, or since January 1, 2004 have had, any interest in any property (whether real, personal, or mixed and whether tangible or intangible), used in or pertaining to the Company’s business. None of the Shareholders nor any Related Person of any Shareholder nor of the Company are, or since January 1, 2004 have owned (of record or as a beneficial owner) an equity interest or any other financial or profit interest in, a Person that has (i) had business dealings or a financial interest in any transaction with the Company, (ii) engaged in competition with the Company with respect to any line of the products or services of the Company (a “Competing Business”) in any market presently served by the Company, (iii) a beneficial interest in any contract or agreement disclosed in the Disclosure Letter. Except as set forth in Part 4.25 of the Disclosure Letter, none of the Shareholders nor any Related Person of any Shareholder or the Company has any indebtedness to the Company or is a party, directly or indirectly, to any Contract with, or has any claim or right against, the Company.

4.26 Brokers Or Finders. Neither the Company nor Shareholders and their agents have incurred any obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with this Agreement.

4.27 Design Of Products; Product Liability; Standard Terms and Conditions.

(a) There have not been any Proceedings against the Company or involving any service provided or product, substance or material manufactured, distributed or sold by or on behalf of the Company that is pending or threatened, resulting from alleged errors or negligence in the performance of any such service or an alleged defect in design, manufacture, materials or workmanship of any such product, substance or material. There are no design defects in any product of the Company that could reasonably be expected to result in a recall of such product. There has not been, nor is there under consideration or investigation by the Company, any material recall, rework, retrofit or post-sale warning concerning any service, product, substance or material provided, manufactured, distributed or sold by or on behalf of the Company. The Company has not received any regulatory letters (including any Form 483 reports or their foreign equivalents), warning letters or third party claims with respect to the provision, use, manufacture, advertising, promotion, sale or distribution of any such service, product, substance or material.

(b) The Company (i) does not utilize standard terms and conditions for the sale of products manufactured, sold and delivered by the Company, (ii) has made all sales on commercially reasonable terms, and (iii) has not incurred any expenses in fulfilling its obligations under guaranty, warranty, right of return, credit and indemnity provisions during the two-year period immediately preceding the date hereof; and none of the Shareholders or the Company has Knowledge of any reason why such expenses should increase as a percentage of sales in the future.

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4.28 Regulatory Approvals and Product Registrations. Part 4.28 of the Disclosure Letter sets forth a list of all material Regulatory Approvals and Product Registrations and corresponding amendments or supplements to each of the foregoing, in each case, with the date and license number thereto. The Company is the sole owner of the Regulatory Approvals and Product Registrations and has not licensed any of such to any third parties. Except as disclosed in Part 4.28 of the Disclosure Letter, there are no claims or demands on any person, firm or corporation pertaining to the Regulatory Approvals and Product Registrations or the rights of the Company thereunder, and no proceedings have been instituted or are pending or threatened, which challenge the rights of the Company in respect thereof. The Company holds, and is operating in material compliance with, such exceptions, permits, licenses, franchises, authorizations and clearances of the FDA and/or any other Governmental Body required in connection with the development of its products. The Company has no interest or ownership rights in, and has not submitted, any other regulatory filings or submissions related to any of its products other than those included in the Regulatory Approvals and Product Registrations, true and complete copies of which have been delivered to Buyer. Part 4.28 of the Disclosure Letter sets forth a schedule referencing all communications between the FDA and other Governmental Bodies and the Company respecting its products. The Company has not received any warning letters or written correspondence from any Governmental Body requiring the termination, suspension or modification of any clinical or preclinical studies or tests with respect to its products.

4.29 No Additional Representations and Warranties. Except as provided in this Agreement, the Disclosure Letter, any Disclosure Notice and any other notice, agreement, document or certificate delivered pursuant to this Agreement, neither the Company nor any of its directors, officers, employees or stockholders has made, or is making, any representation or warranty whatsoever to Buyer.

5. REPRESENTATIONS AND WARRANTIES OF BUYER AND BUYER SUB. Buyer and Buyer Sub each hereby represent and warrant to the Company and the Shareholders as follows:

5.1 Organization And Good Standing. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. Buyer Sub is a corporation duly organized, validly existing and in good standing under the laws of the State of Michigan.

5.2 Authority; No Conflict.

(a) This Agreement constitutes the legal, valid, and binding obligation of Buyer and Buyer Sub, enforceable against Buyer and Buyer Sub in accordance with its terms. Upon the execution and delivery by Buyer of the Escrow Agreement (the “Buyer Closing Documents”), the Buyer Closing Documents will constitute the legal, valid, and binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms.

(b) Except as required by the HSR Act, neither Buyer nor Buyer Sub is required to give any notice or to obtain any Consent from any Person in connection with the

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execution and delivery of this Agreement or the performance of any of the Contemplated Transactions.

5.3 Investment Intent. Buyer is acquiring the Shares for its own account and not with a view to their distribution within the meaning of Section 2(11) of the Securities Act.

5.4 Certain Proceedings. There is no pending Proceeding that has been commenced against Buyer or Buyer Sub and that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions. To Buyer and Buyer Sub’s Knowledge, no such Proceeding has been Threatened.

5.5 Ownership and Activities of Buyer Sub. Buyer Sub is wholly owned by Buyer and was formed solely for the purpose of engaging in the Contemplated Transactions. As of the date hereof and the Closing Date, except for obligations or liabilities incurred in connection with its incorporation and the Contemplated Transactions, Buyer Sub has not, and will not have, incurred, directly or indirectly, any obligations or liabilities or engaged in any business activities of any type or kind whatsoever or entered into any agreements or arrangements with any Person.

5.6 Brokers Or Finders. Neither Buyer nor Buyer Sub or their respective officers and agents have incurred any obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with this Agreement. Each of Buyer and Buyer Sub will indemnify and hold Shareholders harmless from any such payment alleged to be due by or through Buyer or Buyer Sub as a result of the action of Buyer or Buyer Sub or their respective officers or agents.

6. COVENANTS OF SHAREHOLDERS PRIOR TO CLOSING DATE.

6.1 Access And Investigation. Subject to applicable Legal Requirements, between the date of this Agreement and the Closing Date, the Company and Shareholders will, and will cause the Company, NexGen and their Representatives to, (a) afford Buyer and its Representatives and prospective lenders and their Representatives (collectively, “Buyer’s Advisors”) full and free access to the Company’s personnel, properties (including subsurface and asbestos testing), contracts, books and records, and other documents and data for due diligence purposes, (b) furnish Buyer and Buyer’s Advisors with copies of all such contracts, books and records, and other existing documents and data as Buyer may reasonably request for due diligence purposes, and (c) furnish Buyer and Buyer’s Advisors with such additional financial, operating, and other data and information as Buyer may reasonably request for due diligence purposes. Without limiting the generality of the foregoing, between the date hereof and the Closing Date, the Company shall permit Buyer’s Representatives to meet with officers of the Company to discuss such matters as Buyer may deem reasonably necessary or appropriate for Buyer to satisfy its obligations under Sections 302, 404 and 906 the Sarbanes-Oxley Act and any rules and regulations relating thereto.

6.2 Operation Of The Business Of The Company. Between the date of this Agreement and the Closing Date, the Company will, and the Shareholders will cause the Company to:

(a) conduct the business of the Company only in the Ordinary Course of Business;

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(b) use their Best Efforts to preserve intact the current business organization of the Company, keep available the services of the current officers, employees, and agents of the Company, and maintain the relations and good will with suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with the Company;

(c) subject to applicable Legal Requirements, confer with Buyer concerning operational matters of a material nature; and

(d) otherwise report periodically to Buyer concerning the status of the business, operations and finances of the Company.

6.3 Negative Covenant. Except as otherwise expressly permitted by this Agreement, between the date of this Agreement and the Closing Date, neither the Company nor Shareholders will, without the prior consent of Buyer, (i) cancel, modify or otherwise materially alter the contracts, leases, and other agreements set forth in Section 4.17, (ii) conduct its business in a manner which conflicts with the provisions of Section 4.14 (other than paragraph (b) thereof), or (iii) issue or grant any Shares or Commitments not outstanding on the date of this Agreement.

6.4 Required Approvals. As promptly as practicable after the date of this Agreement, the Company and Shareholders will make all filings required by Legal Requirements to be made by them in order to consummate the Contemplated Transactions. Between the date of this Agreement and the Closing Date, the Company and Shareholders will (a) cooperate with Buyer with respect to all filings that Buyer elects to make or is required by Legal Requirements to make in connection with the Contemplated Transactions, and (b) cooperate with Buyer in obtaining all Consents identified in Schedule 5.2.

6.5 Notification; Amendments to Disclosure Letter.

(a) Between the date of this Agreement and the Closing Date, the Company and Shareholders will promptly notify Buyer in writing if any Shareholder or the Company becomes aware of any fact or condition that causes or constitutes a breach of any of Shareholders’ representations and warranties as of the date of this Agreement, or if any Shareholder or the Company becomes aware of the occurrence after the date of this Agreement of any fact or condition that would (except as expressly contemplated by this Agreement) cause or constitute a breach of any such representation or warranty had such representation or warranty been made as of the time of occurrence or discovery of such fact or condition. During the same period, the Company and Shareholders will promptly notify Buyer of the occurrence of any breach of any covenant of the Company or Shareholders in this Article 6 or of the occurrence of any event that may make the satisfaction of the conditions in Article 8 impossible or unlikely.

(b) Any notice provided to Buyer under Section 6.5(a) (i) shall be deemed to be an amendment to the Disclosure Letter, (ii) shall set forth the breach of the specific representation, warranty or covenant being so amended or the event that has occurred with respect to making a condition in Article 8 impossible or unlikely, and (iii) may be referred to herein as a “Disclosure Notice.”

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(c) Subject to Sections 11.4(b) and 11.4(c), the delivery of any Disclosure Notice shall not (i) be taken into account for purposes of Indemnifying Shareholders’ indemnification obligations set forth in Article 11, or (ii) cure such breach or limit or otherwise affect the rights or remedies otherwise available to Buyer (including without limitation Buyer’s right to terminate this Agreement pursuant to Sections 10.1(a) or 10.1(c) hereof), in each case as if no such Disclosure Notice had been given.

6.6 Payment Of Indebtedness. Except as expressly provided in this Agreement, the Company and Shareholders will cause all (i) indebtedness owed to the Company by any Shareholder or any Related Person of any Shareholder, and (ii) funded debt owed by the Company to any Person, to be paid in full prior to Closing and shall cause any Encumbrance related thereto to be waived or released.

6.7 No Negotiation. Until such time, if any, as this Agreement is terminated pursuant to Article 10, the Company and Shareholders will not, and will cause the Company, NexGen and each of their Representatives not to, directly or indirectly receive, accept, review, entertain, solicit, initiate, or encourage any inquiries or proposals from, discuss or negotiate with, provide any information to, or consider the merits of any unsolicited inquiries or proposals from, any Person (other than Buyer) relating to any transaction involving the sale of the business or of all or substantially all of the assets of the Company or NexGen, or any of the capital stock of the Company or NexGen, or any merger, consolidation, business combination, or similar transaction involving the Company or NexGen, or any licensing or sale of the Intellectual Property Assets or Future Technology (other than in the Ordinary Course of Business). The Company and Shareholders shall immediately advise the Buyer in writing of the terms of any oral or written offer, proposal or indication of interest that any Shareholder, the Company, NexGen or any of their Representatives receives or otherwise becomes aware relative to any of the foregoing, which notice shall identify the offeror and the terms of such offer.

6.8 Best Efforts; Voting. Between the date of this Agreement and the Closing Date, the Company and each Shareholder will use its Best Efforts to cause the conditions in Articles 8 and 9 to be satisfied. Each Shareholder executing this Agreement agrees that it shall vote all Shares owned by such Shareholder in favor of the Merger and shall not assert dissenters’, appraisal or similar rights, and hereby waives any dissenters’, appraisal or similar rights such Shareholder may have with respect to the Merger.

6.9 Termination Of Company Plans. At the request of Buyer, Shareholders and the Company will terminate any and all Company Plans, including, but not limited to, any Company Plan intended to include a Code Section 401(k) arrangement, to be effective as of the date immediately preceding the Closing Date or on such other date that precedes the Closing Date as agreed upon between the Parties. Upon request from Buyer, the Company shall provide Buyer with a copy of the Company’s Board resolutions terminating the Company Plans in accordance with this Section 6.9.

6.10 Permitted Actions.

(a) The Company has informed Buyer that Shareholders, the Company and certain employees of the Company are organizing a limited liability company (“NexGen”) for the

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purpose of developing certain technology which the parties have mutually designated (“Future Technology”) which is not being used and is not expected to be used in the future, in the Company’s products. Completion of the formation process and transfer of the Company’s interest in the Future Technology and Livonia Property to NexGen as described in this Section 6.10 will not be deemed outside the Ordinary Course of Business to the extent that each of the other Persons named as members of NexGen in the NexGen Company Agreement (as defined below) timely makes to NexGen the contributions of cash and other property required of such Person under the NexGen Company Agreement and the other requirements set forth in this Section 6.10 are met.

(i) On or prior to the Closing, each Shareholder and other Person that is named in the NexGen Company Agreement as a member of NexGen shall have entered into the limited liability company agreement “NexGen Company Agreement” in the form of Exhibit 6.10(a) setting forth the required contributions, ownership interests and rights and obligations of the members of NexGen.

(ii) NexGen will be formed solely for the purposes described in Section 6.10(a) and from the formation of NexGen through and including the Closing Date, (i) the membership interests in NexGen (the “NexGen Membership Interests”) will be held solely by those Persons named in the NexGen Company Agreement as members of NexGen (“NexGen Members”), (ii) other than the NexGen Membership Interests held by the NexGen Members as shown in the NexGen Company Agreement, there shall be no authorized or issued and outstanding membership or other equity or ownership interests in NexGen, or any options, warrants or other rights exercisable for and convertible into membership or other equity or ownership interests in NexGen, (iii) the NexGen Members will be the only record and beneficial owners and holders of the NexGen Membership Interests, free and clear of all Encumbrances, (iv) all of the NexGen Membership Interests shall have been validly issued and shall be fully paid and nonassessable, (v) none of the NexGen Membership Interests shall have been issued in violation of the Securities Act or any other Legal Requirement, (vi) NexGen shall not own or have any Contract to acquire, any equity securities or other securities of any Person or any direct or indirect equity or ownership interest in any other business, (vii) NexGen shall have no liabilities or obligations of any nature (whether known or unknown and whether absolute, accrued, contingent, matured or unmatured or otherwise), (viii) NexGen shall not conduct any business or enter into any Contract other than the Services, License and Distribution Agreement, and (ix) NexGen shall have no assets other than the Intellectual Property Rights related to the Future Technology contributed to NexGen by the Company and the cash amounts paid by the Persons named in the NexGen Company Agreement as members of NexGen.

(iii) Promptly following the formation of NexGen, the Company and the Shareholders that are NexGen Members shall cause NexGen to deliver to Buyer true and correct copies of the fully executed NexGen Company Agreement and other Organizational Documents of NexGen, each of which shall be true, complete and correct when delivered and on the Closing Date. The Company and Shareholders that are NexGen Members shall cause NexGen to make available to Buyer the books of account, minute books, stock record books and other records of NexGen, all of which shall be complete and correct and maintained in accordance with sound business practices.

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(iv) The Company shall execute and those Shareholders that are NexGen Members shall cause NexGen to execute on or before the Closing an agreement in the form of Exhibit 6.10(a)(iv) hereto (the “Services, License and Distribution Agreement”).

(b) From the date of this Agreement through the Closing Date, the Company shall not own, have any Contract to acquire, or have any other equity investment or other interest in, directly or indirectly, any corporation, joint venture, partnership, limited liability company, association or other Person other than NexGen.

(c) Between the date of this Agreement and the Closing Date, the Company will be permitted to declare or pay a dividend or other distribution or payment to Shareholders, provided it delivers prior written notice to Buyer of any such action, and provided, further, that Shareholders acknowledge that any such dividend or other distribution or payment will reduce the dollar amount of the Working Capital as of the Closing Date but will not reduce the dollar amount of the Target Working Capital stated in Section 3.1(b).

(d) Shareholders shall jointly and severally indemnify and hold harmless Buyer and the Company for, and will pay to Buyer or the Company, any federal, state, local or foreign Taxes imposed or assessed upon the Company with respect to the transactions contemplated in this Section 6.10.

6.11 Title Report and Survey. Shareholders and the Company shall cause to be provided to Buyer a survey and preliminary title report (each a “Title Document”) with respect to the Owned Property no less than twenty-one (21) days prior to the Closing Date. At any time on or prior to the Closing Date, Buyer may provide written notice to Shareholders Representative of Buyer’s objections to any encumbrances, exceptions to title and other endorsements that reflect facts inconsistent with any representation or warranty made by Company or Shareholders in this Agreement.

6.12 Data Room. Simultaneous with the execution of this Agreement, the Company and Shareholders shall deliver to Buyer a true and complete electronic copy of all items in the Data Room which shall include, without limitation, all of the items which Shareholders or the Company may make available to Buyer in the Data Room pursuant to the terms of this Agreement.

7. COVENANTS OF BUYER PRIOR TO CLOSING DATE.

7.1 Approvals Of Governmental Bodies. As promptly as practicable after the date of this Agreement, Buyer will, and will cause each of its Related Persons to, make all filings required by Legal Requirements to be made by them to consummate the Contemplated Transactions. Between the date of this Agreement and the Closing Date, Buyer will, and will cause each Related Person to, cooperate with Shareholders with respect to all filings that Shareholders are required by Legal Requirements to make in connection with the Contemplated Transactions, and (ii) cooperate with Shareholders in obtaining all consents identified in Part 4.2 of the Disclosure Letter; provided that this Agreement will not require Buyer to dispose of or make any change in any portion of its business or to incur any other burden to obtain a Governmental Authorization.

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7.2 Best Efforts. Except as set forth in the proviso to Section 7.1, between the date of this Agreement and the Closing Date, Buyer will use its Best Efforts to cause the conditions in Articles 8 and 9 to be satisfied.

8. CONDITIONS PRECEDENT TO BUYER’S OBLIGATION TO CLOSE.

The respective obligations of Buyer and Buyer Sub to consummate the Contemplated Transactions are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Buyer or Buyer Sub, in whole or in part):

8.1 Accuracy Of Representations. The Company’s and Shareholders’ representations and warranties in Section 4.1 (Organization and Good Standing), Section 4.2 (Authority; No Conflict), Section 4.3 (Capitalization), Section 4.9 (Taxes), Section 4.19 (Environmental Matters) and Section 4.22 (Intellectual Property) (considered collectively), and each of these representations and warranties (considered individually), were accurate in all material respects as of the date of this Agreement, and will be accurate in all material respects as of the Closing Date as if made on the Closing Date as supplemented before Closing pursuant to a Disclosure Notice delivered to Buyer in accordance with Section 6.5.

8.2 Shareholder Performance. All of the covenants and obligations that any Shareholder is required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), have been duly performed and complied with in all material respects.

8.3 Consents. Each of the items identified in section 1 of Part 4.2 of the Disclosure Letter shall have been obtained.

8.4 Additional Documents. The Company and Shareholders have delivered to Buyer such other documents as Buyer may reasonably request for the purpose of, (a) evidencing the accuracy of any of the Company’s or Shareholders’ representations and warranties as of the Closing Date, (b) evidencing the performance by the Company and Shareholders of, or the compliance by the Company and Shareholders with, any covenant or obligation required to be performed or complied with by the Company or any Shareholder on or prior to the Closing Date, (c) evidencing the satisfaction of any condition referred to in this Article 8, or (d) otherwise facilitating the consummation or performance of any of the Contemplated Transactions.

8.5 No Proceedings.

(a) Since the date of this Agreement, there must not have been commenced or Threatened by any Person against Buyer, the Company, NexGen or any Shareholder, or against any Person affiliated with Buyer, the Company, NexGen or any Shareholder, any Proceeding (a) involving any challenge to, or seeking damages or other relief in connection with, any of the Contemplated Transactions, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the Contemplated Transactions.

(b) Since the date of this Agreement, there must not have been commenced or Threatened by any Person any claim asserting that such Person (a) is the holder or the beneficial

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owner of, or has the right to acquire or to obtain beneficial ownership of, any stock of, or any other voting, equity, or ownership interest in, the Company or NexGen, or (b) is entitled to all or any portion of the Total Merger Consideration.

8.6 No Prohibition. Neither the consummation nor the performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time), materially contravene, or conflict with, or result in a material violation of, or cause Buyer or any Person affiliated with Buyer to suffer any material adverse consequence under, (a) any applicable Legal Requirement or Order, or (b) any Legal Requirement or Order that has been published, introduced, or otherwise proposed by or before any Governmental Body.

8.7 Additional Conditions Of Buyer.

(a) At no time has the Company entered into any Contract or consented to any Order or settlement that, in Buyer’s sole discretion, could reasonably be expected to effect the Intellectual Property Assets or other assets of the Company, NexGen or Buyer following the Closing.

(b) NexGen and the Company shall have entered into the Services, License and Distribution Agreement.

(c) The NexGen Members (including the Company) shall have entered into the NexGen Company Agreement and Buyer shall have concluded that NexGen was duly formed and capitalized in accordance with the terms of this Agreement and the NexGen Company Agreement.

(d) The Company, the Escrow Agent and the Shareholders Representative shall have entered into the Escrow Agreement, which shall be in full force and effect as of the Closing Date.

(e) Each of A. Paul Schaap, Hashem Akhavan-Tafti and Gary T. Priestap shall have delivered to Buyer non-competition agreements in the form of Exhibit 8.7(e) (the “Non-competition Agreements”).

(f) The Company shall enter into and deliver to Buyer fully executed agreements (the “Employment Agreements”) in the form of Exhibit 8.7(f)(i) between the Company and each of the Company executives set forth on Exhibit 8.7(f)(ii) hereto (the “Executives”).

(g) Shareholders holding the requisite majority of the capital stock of the Company shall have approved this Agreement and the Merger and the transactions contemplated thereby.

(h) Holders of no more than ten percent (10%) of the capital stock of the Company outstanding immediately prior to the Effective Time shall have exercised or given notice of their intent to exercise appraisal rights or dissenters’ rights in accordance with applicable Legal Requirements.

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(i) The Company and all Shareholders shall have delivered to Buyer Certificates representing all of the Shares held by the Shareholders, including shares issued upon the exercise of the Options on or prior to the Closing Date in accordance with Section 2.6; provided, however, that to the extent any Shareholder has not made such delivery at the Closing, Buyer may elect to consummate the Merger but shall not make payment to any such Shareholder prior to delivery of such Shareholder’s Certificates representing all of the Shares held by such Shareholder.

(j) The Company shall have terminated all Options that were not exercised prior to the Closing.

(k) At the Closing, the Company and all Shareholders shall have delivered or caused to be delivered to Buyer all of the agreements, instruments and documents required to be delivered to Buyer pursuant to the foregoing provisions of this Section 8.7, together with:

(1) the written and, other than with reference to the consummation of the Merger, unconditional resignations of all of the current members of the board of directors of the Company, effective as of the Effective Time;

(2) Schedule 2.2, updated as of the Closing Date to the reasonable satisfaction of Buyer; and

(3) certificates dated as of a date within a reasonable period of time prior to the Closing Date as to the good standing of the Company, executed by the appropriate officials of the State of Michigan.

(l) At the Closing, the Company shall have delivered a certificate signed by the secretary of the Company certifying, as complete and accurate as of the Closing Date, (i) the complete Organizational Documents of the Company, (ii) the resolutions or actions of each of the shareholders and the board of directors of the Company approving the execution, delivery and performance of this Agreement and the Shareholder Closing Documents and the consummation of the Contemplated Transactions, and (iii) the incumbency and signatures of the officers of the Company executing this Agreement and the Shareholder Closing Documents, as applicable.

(m) At the Closing, Shareholders and the Company shall have delivered to Buyer an electronic copy of all items in the Data Room, which copy shall be updated to be true and complete as of the Closing Date.

(n) On or prior to the Closing, the Company and Shareholders shall have caused all (i) indebtedness owed to the Company by any Shareholder or any Related Person of any Shareholder, and (ii) funded debt owed by the Company to any Person, to be paid in full prior to Closing and any Encumbrance related thereto to be waived or released.

8.8 Certificate Of Non-Foreign Status. The Company shall have delivered to Buyer a properly executed certificate of non-foreign status, as described in section 1.1445-2(b)(2) of the Income Tax Regulations, in a form satisfactory to Buyer.

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8.9 No Material Adverse Effect. Between the date hereof and the Closing Date, there shall not have occurred any Material Adverse Effect on the Company or NexGen, or any development likely to result in a Material Adverse Effect on the Company or NexGen. At the Closing, Buyer shall have received a certificate to such effect executed by the Company’s President or Chief Executive Officer of the Company and of NexGen.

8.10 Waiting Period. The waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) shall have expired or been terminated, and any other necessary waiting periods or determinations relating to Governmental Body filings shall have expired or been obtained.

8.11 Title Insurance. At the Closing, First American Title Insurance Company (the “Title Company”) shall have delivered policies of title insurance, issued at standard rates, insuring Buyer’s (or its designee’s) marketable title in and to the Owned Property in fee simple, free and clear of all Encumbrances, other than the matters set forth on Schedule B of the preliminary title report provided to Buyer, including such endorsements and affirmative coverages identified therein; provided that the matters set forth on Schedule B of any preliminary title report provided to Buyer would not, individually or in the aggregate, materially and adversely affect the Company or Buyer’s ability to operate the business of the Company after the Closing. The Company and Shareholders shall provide all such affidavits, indemnities (in respect of title) and other such information, in such form as the Company or Shareholders Representative shall reasonably approve and as the Title Company reasonably shall require, in order to afford such coverage. Buyer shall bear the cost of obtaining such title insurance. In addition, Buyer shall have received the Title Documents with respect to each parcel of Owned Property, which shall not reflect any statement of facts inconsistent in any material respect with any representation or warranty made by the Company or Shareholders in this Agreement, and which shall be in form and substance reasonably satisfactory to Buyer.

9. CONDITIONS PRECEDENT TO SHAREHOLDERS’ OBLIGATION TO CLOSE.

The respective obligations of the Company and Shareholders to consummate the Contemplated Transactions is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by the Company or Shareholders, in whole or in part):

9.1 Accuracy Of Representations. All of Buyer’s representations and warranties in this Agreement (considered collectively), and each of these representations and warranties (considered individually), must have been accurate in all material respects as of the date of this Agreement and must be accurate in all material respects as of the Closing Date as if made on the Closing Date.

9.2 Buyer’s Performance.

(a) All of the covenants and obligations that Buyer is required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), will have been performed and complied with in all material respects.

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(b) Buyer will have delivered a certificate executed by Buyer to the effect that each of Buyer’s representations and warranties in this Agreement was accurate as of the date of the Agreement and, as supplemented before the Closing in accordance with Section 6.5 is accurate as of the Closing Date as if made on the Closing Date.

(c) Buyer shall have entered into the Escrow Agreement, which shall be in full force and effect as of the Closing Date.

9.3 No Injunction. There will not be in effect any Legal Requirement or any injunction or other Order that prohibits the Merger and has been adopted or issued, or has otherwise become effective, since the date of this Agreement.

9.4 Waiting Period. The waiting period under the HSR Act shall have expired or been terminated, and any other necessary waiting periods or determinations relating to Governmental Body filings shall have expired or been obtained.

10. TERMINATION.

10.1 Termination Events. This Agreement may, by notice given prior to or at the Closing, be terminated:

(a) by Buyer if a material breach of any of the representations and warranties in Section 4.1 (Organization and Good Standing), Section 4.2 (Authority; No Conflict), Section 4.3 (Capitalization), Section 4.9 (Taxes), Section 4.19 (Environmental Matters) and Section 4.22 (Intellectual Property) has been committed by the Company or any Shareholder and such breach has not been waived by Buyer;

(b) by Shareholders if a material breach of any provision of this Agreement has been committed by Buyer and such breach has not been waived by the Shareholders Representative;

(c) by Buyer if (i) the Company, any Shareholder or Shareholders Representative has delivered a Disclosure Notice to Buyer, (ii) the representation, warranty or covenant specified in such Disclosure Notice would not be true and correct in all material respects but for delivery of such Disclosure Notice, and (iii) the breach set forth in such Disclosure Notice or in all Disclosure Notices, individually or in the aggregate, would be, or would reasonably be expected to be, materially adverse to the Company;

(d) (i) by Buyer if any of the conditions in Article 8 has not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Buyer to comply with its obligations under this Agreement) and Buyer has not waived such condition on or before the Closing Date; or (ii) by Shareholders, if any of the conditions in Article 9 has not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of any Shareholder to comply with its obligations under this Agreement) and Shareholders have not waived such condition on or before the Closing Date;

(e) by mutual consent of Buyer and Shareholders; or

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(f) by either Buyer or Shareholders if the Closing has not occurred (other than through the failure of any party seeking to terminate this Agreement to comply fully with its obligations under this Agreement) on or before the date which is one hundred fifty (150) days after the date of this Agreement or such later date as the Parties may agree upon.

10.2 Effect Of Termination. Each Party’s right of termination under Section 10.1 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of a right of termination will not be an election of remedies. If this Agreement is terminated pursuant to Section 10.1, all further obligations of the Parties under this Agreement will terminate, except that the obligations in Sections 13.4 and 13.5 will survive; provided, however, that if this Agreement is terminated by a Party because of the breach of the Agreement by the other Party or because one or more of the conditions to the terminating Party’s obligations under this Agreement is not satisfied as a result of the other Party’s failure to comply with its obligations under this Agreement, the terminating Party’s right to pursue all legal remedies will survive such termination unimpaired.

11. INDEMNIFICATION; REMEDIES.

11.1 Survival; Right To Indemnification Not Affected By Knowledge.

(a) All representations and warranties in this Agreement, the Disclosure Letter, the supplements to the Disclosure Letter in accordance with Section 6.5 and the certificate delivered pursuant to Section 8.7(l) will survive the Closing for a period of three (3) years, except that the representations and warranties contained in (i) Section 4.19 (Environmental Matters) shall survive for a period of ten (10) years, and (ii) Section 4.1 (Organization and Good Standing), Section 4.2 (Authority; No Conflict), Section 4.3 (Capitalization), Section 4.9 (Taxes), Section 4.26 (Brokers or Finders) and Section 6.10 (Permitted Actions) shall survive until the date which is thirty (30) days after the expiration of the statute of limitations applicable to the subject matter of such representations. Notwithstanding the foregoing:

(1) the expiration of any representations, warranties, covenants and obligations in this Agreement shall not apply to claims based upon fraud or willful misrepresentation; and

(2) the representation, warranty, covenant or obligation that is the subject matter of a timely notice given pursuant to Section 11.6(a) shall not so expire with respect to such notice or any subsequent notice that is reasonably related to the subject matter of such notice, but rather shall remain in full force and effect until such time as each and every claim that is based upon, or that reasonably relates to the subject matter of such notice or any such subsequent notice has been fully and finally resolved.

(b) The right to indemnification, payment of Damages or other remedy based on the representations, warranties, covenants, and obligations in this Agreement will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. For purposes of determining whether any inaccuracy of a

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representation or warranty has occurred and whether any Indemnified Person has suffered, sustained or become subject to any Damages as a result thereof, the representations and warranties contained in this Agreement shall apply without giving effect to any “material,” “materially” or “Material Adverse Effect” or similar qualifications contained therein. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants, and obligations. All covenants, obligations and agreements to be performed after the Closing Date shall survive for the period set forth herein or therein.

11.2 Indemnification And Payment Of Damages By Indemnifying Shareholders. The Shareholders receiving Merger Consideration (“Indemnifying Shareholders”) will jointly and severally indemnify and hold harmless Buyer, the Company, NexGen and their respective Representatives, stockholders, controlling persons, and affiliates (collectively, the “Indemnified Persons”) for, and will pay to the Indemnified Persons the amount of, any loss, liability, Order, Contract, settlement, claim, damage (including incidental and consequential damages sought in any third-party claim), expense (including costs of investigation and defense and reasonable attorneys’ fees), or Tax, whether or not involving a third- party claim (collectively, “Damages”), arising, directly or indirectly, from or in connection with:

(a) any breach of any representation or warranty made by the Company or any Shareholder in this Agreement, the Disclosure Letter or any Disclosure Notice with respect thereto, or any other certificate or document delivered to Buyer pursuant to this Agreement either as of the date of this Agreement or as of the Closing Date (in each such case whether or not any Shareholder, the Shareholders Representative or the Company has delivered a Disclosure Notice with respect thereto);

(b) any breach by the Company or any Shareholder of any covenant or obligation of the Company or any Shareholder in this Agreement;

(c) any product shipped or manufactured by, or any services provided by, the Company prior to the Closing Date;

(d) any sales, use, transfer, real property gains, documentary and stamp taxes, income taxes (relating to the income of any Shareholder or any Related Person of any Shareholder) and recording and filing fees applicable to the Contemplated Transactions;

(e) the matter disclosed in Part 4.3 of the Disclosure Letter with respect to a judgment of divorce;

(f) any claim related to NexGen made by any Person where such claim relates to the formation of NexGen, capitalization of NexGen, the NexGen Company Agreement or the Organizational Documents of NexGen;

(g) any claim related to Dissenting Shares, Dissenting Shareholders or compliance or failure to comply with applicable Legal Requirements relating to dissenters’ rights or appraisal rights;

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(h) any claim or cost incurred relating to the indemnification of current or former directors or officers of the Company as described in Section 13.13 below; or

(i) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Shareholder or the Company (or any Person acting on their behalf) in connection with any of the Contemplated Transactions.

Except for remedies that cannot be waived by Legal Requirement, claims of fraud or willful misconduct and injunctive and provisional relief, the remedies provided in this Article 11, shall be the exclusive remedy available to Buyer and the other Indemnified Persons for matters described in this Section 11.2.

11.3 Indemnification And Payment Of Damages By Buyer. Buyer will indemnify and hold harmless Shareholders, and will pay to Shareholders the amount of any Damages arising, directly or indirectly, from or in connection with (a) any breach of any representation or warranty made by Buyer in this Agreement or in any certificate delivered by Buyer pursuant to this Agreement, (b) any breach by Buyer of any covenant or obligation of Buyer in this Agreement, or (c) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by such Person with Buyer (or any Person acting on its behalf) in connection with any of the Contemplated Transactions.

11.4 Limitations on Indemnification.

(a) Threshold Amount. Notwithstanding anything to the contrary contained in this Agreement, Indemnifying Shareholders will not be liable for any indemnification under Section 11.2(a) unless the amount of such indemnification for which Indemnifying Shareholders would, but for the provisions of this Section 11.4, be liable exceeds, on an aggregate basis, Five Million Dollars ($5,000,000) (the “Threshold Amount”), in which case Indemnifying Shareholders shall be liable for all such indemnification, including the Threshold Amount, which will be due and payable in accordance with this Article 11.

(b) Cap on Damages. Subject to Section 11.4(c), the aggregate liability of Indemnifying Shareholders for (i) any indemnification obligations pursuant to Section 11.2(a) (other than for any Environmental Breach) shall not exceed Fifteen Million Dollars ($15,000,000) (the “Liability Cap”), and (ii) any indemnification obligations pursuant to Section 11.2(a) with respect to Section 4.19 (Environmental Matters) (an “Environmental Breach”) shall not exceed the amount equal to seventy-five percent (75%) of the dividends paid by the Company to Shareholders between September 15, 2006 and the Closing Date (including the Closing Date).

(c) No Threshold Amount; No Limitation. Notwithstanding anything else, the Threshold Amount and Liability Cap shall not apply to any indemnification obligations of Indemnifying Shareholders arising, directly or indirectly, from or in connection with any claim relating to Dissenting Shares or Dissenting Shareholders. In addition, the Threshold Amount and Liability Cap shall not apply to any indemnification obligations of Indemnifying Shareholders

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arising, directly or indirectly, from or in connection with any claim relating to or any breach of any representation, warranty or covenant made by the Company or Shareholders in Section 4.1 (Organization and Good Standing), Section 4.2 (Authority; No Conflict), Section 4.3 (Capitalization), Section 4.9 (Taxes), Section 4.26 (Brokers or Finders) and Section 6.10 (Permitted Actions) unless a Disclosure Notice is provided with respect thereto, in which case, such indemnification obligations shall be subject to the Threshold Amount and the Liability Cap.

11.5 Escrow.

(a) Payment From Escrow Amount. Any indemnification payments made by Indemnifying Shareholders pursuant to Section 11.2(a) shall be paid from the Escrow Amount as set forth in the Escrow Agreement; provided, however, that the rights of Buyer to seek indemnification for (i) those items listed in Section 11.4(c) hereunder, or (ii) any Environmental Breach, shall not be limited to the Escrow Amount or in any other respect (other than the limitation set forth in Section 11.4(b)(ii) above). All fees and expenses set forth in the Escrow Agreement shall be shared equally by Buyer on the one hand and Shareholders on the other hand. Neither the exercise of, nor the failure to exercise, Buyer’s rights under this Article 11 will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it hereunder.

(b) Escrow Reimbursement. Buyer may seek indemnification for (i) those items listed in Section 11.4(c)(i) hereunder, or (ii) any Environmental Breach, directly from Indemnifying Shareholders or from the Escrow Amount; provided, however, that Buyer shall first seek such indemnification from the Escrow Amount. In the event that any indemnification payments are paid from the Indemnity Escrow, within seven (7) days after such withdrawal, Shareholders jointly and severally shall restore the Indemnity Escrow to the amount thereof immediately prior to such withdrawal by depositing with the Escrow Agent, for credit to the Indemnity Escrow, an amount equal to the amount so withdrawn.

11.6 Procedure For Indemnification — Third Party Claims.

(a) Promptly after receipt by an Indemnified Person or Shareholder (each in this context, an “Indemnified Party”) of notice of the commencement of any Proceeding against it for which such Person may seek indemnification against a Shareholder (under Section 11.2) or Buyer (under Section 11.3) (each in this context, and “Indemnifying Party”), respectively, such Indemnified Party will, if a claim is to be made against an Indemnifying Party under such Section, give written notice to the Indemnifying Party of the commencement of such claim, but the failure to notify the Indemnifying Party will not relieve it of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Proceeding is prejudiced by the Indemnifying Party’s failure to give such notice (it being understood, however, that where any of the Shareholders would otherwise be an Indemnified Party or Indemnifying Party, all references to such term as used in the procedural provisions of this Section 11.6 and in Section 11.7 shall instead refer to the Shareholders Representative).

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(b) If any Proceeding referred to in Section 11.6(b) is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such Proceeding, the Indemnifying Party will, unless the claim involves Taxes, be entitled to participate in such Proceeding and, to the extent that it wishes (unless (i) the Indemnifying Party is also a party to such Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Party and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Proceeding, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Article 11 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnified Party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification and that the Indemnifying Party is solely and irrevocably responsible for the claims made in that Proceeding; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an Indemnifying Party of the commencement of any Proceeding and the Indemnifying Party does not, within ten days after the Indemnified Party’s notice is given, give written notice to the Indemnified Party of its election to assume the defense of such Proceeding, the Indemnifying Party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnified Party.

(c) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such Proceeding, but the Indemnifying Party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).

(d) Each Indemnifying Party hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Proceeding or the matters alleged therein, and agree that process may be served on any Indemnifying Party with respect to such a claim anywhere in the world.

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11.7 Procedure For Indemnification — Other Claims. A claim for indemnification for any matter not involving a third-party claim may be asserted by notice to the party from whom indemnification is sought.

11.8 Adjustment to Purchase Price. Any indemnification payments made pursuant to this Article 11 shall be treated for Tax purposes as an adjustment to the Total Merger Consideration.

12. TAX MATTERS.

12.1 Tax Matters. The following provisions shall govern the allocation of responsibility as between Buyer and Shareholders for certain tax matters following the Closing Date:

(a) To the extent such Taxes are not reflected in the Closing Balance Sheet as current liabilities or are not accounted for in the Closing Working Capital as finally determined pursuant to Section 3.3, Shareholders shall pay any and all federal, state, local and other Taxes imposed or assessed at any time upon the Company or any Subsidiary, or on any of its or their assets, or with respect to any receipts, income, sales, transactions or other business activities of the Company or any Subsidiary (including without limitation the transfer of the Company’s interest in the Future Technology to NexGen as provided in Section 6.10 above), with respect to the Pre-Closing Period. Any amount owed by Shareholders pursuant to the immediately preceding sentence shall be paid within the later of fifteen (15) days after Buyer’s request for such payment and ten (10) days prior to the date of which the Buyer is required to pay or cause to be paid any such Tax. The Shareholders Representative, at the expense of the Shareholders, shall prepare or cause to be prepared and file or cause to be filed all Tax Returns for the Company for all period ending on or prior to the Closing Date that are filed after the Closing Date. The Tax Returns referred to in the immediately preceding sentence shall be prepared in a manner consistent with past practice, unless a contrary treatment is required by an intervening change in Legal Requirement. To the extent such Taxes are not reflected in the Closing Balance Sheet as current liabilities or are not accounted for in the Closing Working Capital as finally determined pursuant to Section 3.3, Shareholders shall timely pay and discharge all Taxes shown to be due by the Company on such Tax Returns. No later than thirty (30) business days prior to the due date of such Tax Return. The Shareholders Representative shall provide Buyer with a copy of each income, franchise and single business Tax Return in the form proposed to be filed for Buyer’s review and approval, which approval shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary in this Agreement, neither the Shareholders Representative nor any Shareholder shall file, or permit the Company to file, any amended income, franchise or single business Tax Return relating to the Company (or otherwise change such Tax Returns to make an election) with respect to taxable periods ending on or prior to the Closing Date without the written consent of Buyer if such amendment adversely affects Buyer or the Company, unless required to do so by Legal Requirement. The Company shall prepare or cause to be prepared and file or cause to be filed all Tax Returns of the company and its Subsidiaries required to be filed with respect to any Straddle Period. Buyer shall permit the Shareholders Representative to review and comment (within fifteen (15) days following delivery) on each income, franchise and single business Tax Return described in the immediately preceding sentence prior to filing; provided, that the adoption of such comments shall be subject

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to the consent of Buyer, which consent shall not be unreasonably withheld. Shareholders shall not be responsible for the payment of any Taxes attributable to pre-closing activities of the Company that are properly reflected as deferred Tax liabilities on the Closing Balance Sheet and which Taxes were not required to be reported on a Tax Return for the Company for any period ending on or prior to the Closing Date.

(b) Apportionment of Taxes. In order to apportion appropriately any Taxes of the Company or any Subsidiary relating to any Straddle Period, the Parties hereto will, to the extent permitted under applicable Legal Requirement, elect with the relevant taxing authority to treat for all purposes the Closing Date as the last day of the taxable year or period of the Company. In any case where applicable Legal Requirement does not permit the Company to treat the Closing Date as the last day of the taxable year or period with respect to Taxes that are payable with respect to a Straddle Period, the allocation of Taxes shall be made as follows:

(i) in the case of Taxes based upon income, gross receipts (such as sales Taxes) or specific transactions involving Taxes other than Taxes based upon income or gross receipts, the amount of Taxes attributable to any Pre-Closing Period or Post-Closing Period included in the Straddle Period shall be determined by closing the books of the Company or such Subsidiary as of the close of business on the Closing Date and by treating each of such Pre-Closing Period and Post-Closing Period as a separate taxable year, except that exemptions, allowances or deductions that are calculated on an annual basis shall be apportioned on a per diem basis; and

(ii) in the case of Taxes that are determined on a basis other than income, gross receipts or specific transactions, the amount of Taxes attributable to any Pre-Closing Period included in the Straddle Period shall be equal to the amount of such Taxes for the Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Pre-Closing Period included in the Straddle Period and the denominator of which is the total number of days in the Straddle Period, and the amount of such Taxes attributable to any Post-Closing Period included in a Straddle Period shall be the excess of the amount of the Taxes for the Straddle Period over the amount of Taxes attributable to the Pre-Closing Period included in such Straddle Period.

(iii) In the event that a dispute arises between the Shareholders Representative or any Shareholder and Buyer as to the apportionment of Taxes or indemnification or any matter relating to Taxes attributable to the Company, the Parties shall attempt in good faith to resolve such dispute, and any agreed upon amount shall be paid to the appropriate Party. If such dispute is not resolved thirty (30) calendar days thereafter, the Parties shall submit the dispute to the Accounting Arbitrator for resolution, which resolution shall be final, conclusive, and binding on the Parties. Notwithstanding anything in this Agreement to the contrary, the fees and expenses of the Accounting Arbitrator in resolving this dispute shall be borne equally by the Shareholders and Buyer.

(c) Shareholders shall be responsible for, and shall pay to Buyer, the sum of (i) the amount by which any anticipated Tax benefits from any Tax losses which may be carried forward to a Post-Closing Period, to the extent included in Working Capital as current assets on the Closing Balance Sheet, exceed the actual Tax benefits realized by the Company and its

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affiliates from such Tax losses carried forward to a Post-Closing Period, and (ii) the amount by which any refundable Taxes or Tax benefits for any Pre-Closing Period, to the extent included in Working Capital as current assets on the Closing Balance Sheet, exceed the actual Tax refunds received by the Company and its affiliates for any Pre-Closing Period. Any amount owed by Shareholders pursuant to the immediately preceding sentence shall be paid to Buyer within fifteen (15) days after Buyer’s request for such payment or, if within five (5) days after receipt of such request Shareholders submit the matter to the Accounting Arbitrator for resolution, within ten (10) days after the Accounting Arbitrator has made its final determination

12.2 Cooperation on Tax Matters.

(a) Buyer, Shareholders, the Shareholders Representative and the Company shall cooperate fully, as and to the extent reasonably requested by the other Party, in connection with the filing of Tax Returns pursuant to this Section 12.2 and any audit, litigation or other proceeding with respect to Taxes. Such cooperation shall include the retention and (upon the other Party’s request) the provision of records and information which are potentially relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Company and Shareholders agree (A) to retain all books and records with respect to Tax matters pertinent to the Company relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Buyer or Shareholders, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any taxing authority, and (B) to give the other Party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other Party so requests, the Company, as the case may be, shall allow the other Party to take possession of such books and records.

(b) Buyer and Shareholders further agree, upon request, to use their best efforts to obtain any certificate or other document from any Governmental Body or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed.

12.3 Audits. The Company and the Subsidiaries shall provide the Shareholders Representative with notice of any written inquires, audits, examinations or proposed adjustments by the Internal Revenue Services or any other Governmental Body that relates to any Pre-Closing Tax Periods within thirty (30) days of receipt of such notice. The Shareholders Representative shall represent the interests of the Company and the Subsidiaries in any Tax audit or other proceedings relating to any taxable periods ending on or prior to the Closing Date, employing counsel of its choice at the expense of the Shareholders, and shall settle any issues and to take any other action sin connection with such proceedings relating to such taxable periods; provided, however, that the Shareholders Representative shall keep Buyer informed of the status of any such proceedings, shall provide Buyer with copies of any pleadings, correspondence, and other documents, as Buyers may reasonably request, shall consult with Buyer prior to the settlement of any such proceedings and shall obtain the prior written consent of Buyer prior to the settlement of any such proceedings that could adversely affect Buyer, the Company or any Subsidiary in any taxable period ending after the Closing Date; and provided further, however, that Buyer and counsel of its own choosing shall have the right to participate in

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the prosecution of defense of such proceedings at Buyer’s sole expense. Buyer shall control all other Tax audits or proceedings of the Company and the Subsidiaries.

12.4 Tax Sharing Agreements. All Tax sharing agreements or similar agreements with respect to or involving the Company shall be terminated as of the Closing Date and, after the Closing Date, the Company shall not be bound thereby or have any liability thereunder.

12.5 Certain Taxes and Fees. All transfer, documentary, sales, use, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with the consummation of the Transactions shall be borne by Shareholders.

13. GENERAL PROVISIONS.

13.1 Shareholders Post-Closing Release. Effective as of the Closing Date, each Shareholder hereby releases and discharges the Company, its Subsidiaries and NexGen (whether in such Shareholder’s capacity as a shareholder, director, officer, employee or otherwise) from any and all claims, demands and causes of action, whether known or unknown, liquidated or contingent, relating to, arising out of or in any way connected with the dealings of the Company, its Subsidiaries or NexGen, and such Shareholder from the beginning of time through the Closing, it being understood, however, that such release shall not operate to release the Company or Buyer from any indemnity obligations, if any, under Article 11. Each Shareholder acknowledges that the Legal Requirements of many states provide substantially the following: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” Each Shareholder acknowledges that such provisions are designed to protect a party from waiving claims which it does not know exist or may exist. Nonetheless, each Shareholder agrees that, effective as of the Closing, such Shareholder shall be deemed to waive any such provision. Each Shareholder further agrees that such Shareholder shall not (i) institute a Proceeding based upon, arising out of, or relating to any of the released claims, (ii) participate, assist, or cooperate in any such Proceeding, or (iii) encourage, assist and/or solicit any third party to institute any such Proceeding.

13.2 Expenses. Except as otherwise expressly provided in this Agreement, each Party to this Agreement will bear its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the Contemplated Transactions, including all fees and expenses of agents, representatives, counsel, and accountants. The Shareholders shall bear such costs incurred by the Company. In the event of termination of this Agreement, the obligation of each Party to pay its own expenses will be subject to any rights of such Party arising from a breach of this Agreement by another Party.

13.3 Public Announcements. The Shareholders Representative, the Company and Buyer have agreed to the text of the press release announcing the signing of this Agreement and the Contemplated Transactions contemplated hereby. The Shareholders Representative and Buyer shall provide to each other any subsequent press releases related to this Agreement and the

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Transactions and shall consult with each other before issuing or making any such release and neither Buyer on the one hand nor Shareholders Representative or any Shareholder on the other hand will issue any such press release or make any such public statement without the prior written consent of the other (it being understood that the Shareholders Representative shall have the right to grant consents on behalf of the Shareholders). Buyer may, without obtaining the prior consent of Shareholders, issue such press release or make such public statements as Buyer determines in good faith, following consultation with legal counsel, are required by Legal Requirements or the rules and regulations of the New York Stock Exchange, if it has used all reasonable efforts to consult with the Shareholders Representative. Buyer, Shareholders, the Company and the Shareholders Representative shall, and shall cause their respective Representatives, to comply with this Section 13.3.

13.4 Confidentiality.

(a) Between the date of this Agreement and the Closing Date, Buyer, Shareholders Representative and Shareholders will maintain in confidence, and will cause the directors, officers, employees, agents, and advisors of Buyer and the Company and NexGen to maintain in confidence, and not use to the detriment of Buyer, Company, NexGen or another party any written information stamped “confidential” when originally furnished by another party or NexGen in connection with this Agreement or the Contemplated Transactions, unless (1) such information is already known to such party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such party, (2) such information is independently developed by such party without use of such information of the other party, (3) the use of such information is necessary or appropriate in making any filing or obtaining any consent or approval required for the consummation of the Contemplated Transactions, or (4) the furnishing or use of such information is required by or necessary or appropriate in connection with legal proceedings.

(b) If the Contemplated Transactions are not consummated, each Party will return or destroy as much of such written information as the other Party may reasonably request. Notwithstanding anything else and whether or not the Closing takes place, Shareholders waive, and will upon Buyer’s request cause the Company, its Subsidiaries and NexGen to waive, any cause of action, right, or claim arising out of the access of Buyer or its representatives to any trade secrets or other confidential information of the Company its Subsidiaries or NexGen except for the intentional competitive misuse by Buyer of such trade secrets or confidential information.

(c) Each Shareholder shall hold, and shall use reasonable commercial efforts to cause its Representatives after the Closing to hold in strict confidence all confidential information relating to the business of Buyer, the Company and each of the Company’s Subsidiaries, including without limitation the Intellectual Property Assets, except as required by Legal Requirement or administrative process and except for information that is publicly available on the Closing Date or thereafter becomes publicly available, in each case, other than as a result of a breach of this Section 13.4.

13.5 Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier (with written confirmation of

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receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a Party may designate by notice to the other Parties):

Shareholders, to the Shareholders Representative:	A. Paul Schaap c/o Lumigen, Inc. 22900 W. Eight Mile Road Southfield, Michigan 48034 Facsimile No.: (313) 821-1558
with copies to:	Snell & Wilmer One Arizona Center Phoenix, Arizona 85004-2202 Attention: Daniel M. Mahoney Facsimile No.: (602) 382-6070 Fildew Hinks PLLC 3600 Penobscot Building 645 Griswold Street Detroit, Michigan 48226-4291 Attention: John Fildew Facsimile No.: (313) 961-0754
Company:	Lumigen, Inc. 22900 W. 8 Mile Road Southfield, Michigan 48033 Attention: President Facsimile No.: (248) 351-0518
with copies to:	Snell & Wilmer One Arizona Center Phoenix, Arizona 85004-2202 Attention: Daniel M. Mahoney Facsimile No.: (602) 382-6070 Fildew Hinks PLLC 3600 Penobscot Building 645 Griswold Street Detroit, Michigan 48226-4291 Attention: John Fildew Facsimile No.: (313) 961-0754

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Buyer:	Beckman Coulter, Inc. 4300 North Harbor Boulevard Fullerton, California 92835-3100 Attention: General Counsel Facsimile No.: (714) 773-7936
with a copy to:	Sheppard Mullin Richter & Hampton 333 South Hope Street, 48th Floor Los Angeles, California 90071-1448 Attention: Lawrence M. Braun Facsimile No.: (213) 443-2814

13.6 Jurisdiction; Service Of Process. Except as provided in Section 11.6(d) herein, any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement solely may be brought against any of the Parties in the state or federal courts located in the State of Delaware and each of the Parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any Party anywhere in the world.

13.7 HSR Act.

(a) Each of Buyer, Company and Shareholders undertake and agree to file as soon as practicable, and in any event shall use commercially reasonable efforts to file prior to five (5) business days after the date hereof, a Notification and Report Form and documentary materials in respect of the transactions contemplated by this Agreement that substantially comply with the provisions of the HSR Act, and the rules thereunder, with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice (and shall file as soon as practicable any form or report required by any other Governmental Body relating to antitrust matters) if such filing is required. Each of Buyer, Company and Shareholders shall (i) respond as promptly as practicable to any inquiries or requests received from any Governmental Body for additional information or documentation, (ii) not extend any waiting period under the HSR Act or enter into any agreement with any Governmental Body not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, (iii) use reasonable commercial efforts to obtain an early termination of the applicable waiting period under the HSR Act, (iv) make any further filings or information submissions pursuant thereto that may be reasonably necessary or advisable and (v) promptly make any filings or submissions required under any applicable foreign antitrust or trade regulation Legal Requirements. No Party will be obligated (except as provided in the foregoing sentence) to take any action to obtain any clearance under the HSR Act or to resolve any objections that may be asserted by the applicable Governmental Body, including (without limitation) any obligation to execute agreements, assert or defend through litigation any claim asserted in any court, or sell, license or otherwise deal with any of its assets or contractual rights. Each of Buyer, Company and Shareholders shall (A) promptly notify the other Party of any written communication to that Party or its Affiliates

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from any Governmental Body and, subject to applicable Legal Requirement, permit the other Party to review in advance any proposed written communication to any of the foregoing, (B) not agree to participate, or to permit its affiliates to participate, in any substantive meeting or discussion with any Governmental Body (other than telephone inquiries in the Ordinary Course of Business) in respect of any filings, investigation or inquiry concerning the transactions contemplated by this Agreement unless it consults with the other Party in advance and, to the extent permitted by such Governmental Body, gives the other Party the opportunity to attend and participate thereat, and (C) to the extent permitted under applicable Legal Requirement, furnish the other Party with copies of all correspondence and written communications between such Party and its affiliates and their respective representatives, on the one hand, and any Governmental Body, on the other hand, with respect to this Agreement and the transactions contemplated hereby (unless the furnishing of such information would (1) violate the provisions of any applicable Legal Requirement or any confidentiality agreement or (2) cause the loss of the attorney-client privilege with respect thereto; provided that each such Party shall use its reasonable commercial efforts to promptly communicate to the other Party the substance of any such communication, whether by redacting parts of such material communication or otherwise, so that such communication would not violate applicable Legal Requirement or cause the loss of the attorney-client privilege with respect thereto). Notwithstanding the above provisions, neither Party shall be required to provide the other with a copy of the Notification and Report Form filed pursuant to this provision or of the documentary materials filed therewith. The notifications made and information shared pursuant to this provision shall be made through counsel and shall be subject to a joint-defense agreement. No action taken by any Party pursuant to a court order shall be deemed to violate this Section 13.7(a). Buyer shall be responsible for paying all applicable filing fees due pursuant to any filings or information submissions required under this Section 13.7.

(b) Except as otherwise provided herein, the obligations of the Parties under this Section 13.7 shall not include any requirement of Company, Shareholders or Buyer to expend money (other than normal legal and professional fees or filing fees), commence or participate in any litigation or offer or grant any accommodation (financial or otherwise) to any third party.

13.8 Further Assurances. The Parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other Party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.

13.9 Waiver. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other Party; (b) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (c) no

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notice to or demand on one Party will be deemed to be a waiver of any obligation of such Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement; provided, however that the Shareholders Representative shall have the right to take any such action on behalf of the Shareholders.

13.10 Entire Agreement And Modification. This Agreement supersedes all prior agreements between the Parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the Party to be charged with the amendment, it being understood that the Shareholders Representative shall have the right to amend this Agreement on behalf of the Shareholders.

13.11 Disclosure Letter.

(a) The disclosures in the Disclosure Letter must relate only to the representations and warranties in the Section of the Agreement to which they expressly relate and not to any other representation or warranty in this Agreement.

(b) In the event of any inconsistency between the statements in the body of this Agreement and those in the Disclosure Letter (other than an exception expressly set forth as such in the Disclosure Letter with respect to a specifically identified representation or warranty), the statements in the body of this Agreement will control.

13.12 Shareholders Representative.

(a) Upon the approval of the Shareholders of this Agreement, for all purposes under this Agreement and the Escrow Agreement, the Shareholders hereby designate A. Paul Schaap to serve as the sole and exclusive representative of the Shareholders (the “Shareholders Representative”) with respect to the matters set forth in this Agreement, and agree that Buyer and Escrow Agent shall be entitled to rely upon any actions taken by the Shareholders Representative as the duly authorized action of the Shareholders Representative on behalf of each Shareholder (other than any Dissenting Shareholder) with respect to any matters set forth in this Agreement and the Escrow Agreement. If A. Paul Schaap at any time is unable, due to incapacity or otherwise, to serve as Shareholders Representative, then Gary T. Priestap shall serve as successor Shareholders Representative. Each successor Shareholders Representative, if required to serve, shall sign an acknowledgement in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholders Representative. Each successor Shareholders Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholders Representative, and the term “Shareholders Representative” as used herein shall be deemed to include any successor Shareholders Representative.

(b) Service by the Shareholders Representative shall be without compensation except for the reimbursement by the Shareholders of out-of-pocket expenses specifically provided herein.

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(c) Each Shareholder hereby appoints and constitutes the Shareholders Representative as his or its true and lawful attorney-in-fact, with full power in his name and to act on his or its behalf according to the terms of this Agreement. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Shareholder, by operation of Legal Requirement, whether by such Shareholder’s death, disability, protective supervision or any other event. The Shareholders Representative shall promptly deliver to each Shareholder any notice received by the Shareholders Representative concerning this Agreement.

(d) Neither the Shareholders Representative nor any agent employed by the Shareholders Representative shall be liable to any Shareholder relating to the performance of such Shareholders Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholders Representative constituted fraud or were taken or not taken in bad faith. The Shareholders Representative shall be protected in acting upon any notice, statement or certificate believed by the Shareholders Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter. Neither the Shareholders Representative nor any agent employed by the Shareholders Representative shall be liable to the Buyer or any Affiliate of the Buyer by reason of this Agreement or the performance of Shareholders Representative’s duties hereunder or otherwise.

13.13 Amendment to Company Organizational Documents. Buyer agrees that the rights to indemnification and exculpation from liability for acts and omissions occurring at or prior to the Closing now existing in favor of the current or former directors and officers of the Company as provided in the Articles of Incorporation and Bylaws of the Company shall survive the Closing and shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights of such directors or officers thereunder, unless an alteration or modification of such document is required by applicable Legal Requirement or the director or officer affected thereby otherwise consents in writing thereto.

13.14 Assignments, Successors, And No Third-Party Rights. Neither Party may assign any of its rights under this Agreement without the prior consent of the other Parties (it being agreed that the Shareholders Representative shall have the right to grant consents on behalf of the Shareholders) except that Buyer may assign any of its rights under this Agreement to any (i) subsidiary or affiliate of Buyer, or (ii) subsequent purchaser of the capital stock of the Surviving Corporation (whether by merger, stock purchase or otherwise) or of all or substantially all of the assets of the Surviving Corporation. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the Parties. Nothing expressed or referred to in this Agreement will be construed to give any Person other than the Parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the Parties to this Agreement and their successors and assigns.

13.15 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full

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force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

13.16 Section Headings, Construction. The headings of Sections and Articles in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Article” refer to the corresponding Section or Article of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.

13.17 Time Of Essence. With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.

13.18 Governing Law. This Agreement will be governed by the internal laws of the State of Delaware without regard to conflicts of law principles (whether of the State of Delaware or any other jurisdiction); provided, however, that the provisions of Article 1 with respect to the Merger shall be governed by the MBCA.

13.19 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

14. DEFINITIONS.

For purposes of this Agreement, the following terms have the meanings specified or referred to in this Article 14:

“Applicable Contract” means any Contract (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which any of the assets owned or used by the Company is or may become bound.

“Balance Sheet” is defined in Section 4.4.

“Best Efforts” means the efforts that a prudent Person desirous of achieving a result would use in similar circumstances to ensure that such result is achieved as expeditiously as possible.

“Business Agreement” is defined in Section 4.17.

“Buyer” is defined in the first paragraph of this Agreement.

“Closing” is defined in Section 1.2.

“Closing Date” means the date and time as of which the Closing actually takes place.

“Code” means the Internal Revenue Code of 1986, as amended.

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“Commitment” means (a) options, warrants, convertible securities, exchangeable securities, subscription rights, purchase or acquisition rights, conversion rights, exchange rights, or other Contracts that require the Company to issue any shares of its capital stock or other ownership interest or any other interest described in and of (b) through (e) below; (b) any other securities convertible into, exchangeable or exercisable for, or representing the right to subscribe for, in each case with or without consideration, any capital stock or ownership interest of the Company; (c) statutory pre-emptive rights or pre-emptive rights granted under the Company’s Organizational Documents; (d) rights of first refusal, tag-along rights, co-sale rights, drag-along rights, piggyback rights, buy-sell arrangements, or voting agreements with respect to the Company; or (e) stock appreciation rights, phantom stock, profit participation, or other similar rights with respect to the Company.

“Company” is Lumigen, Inc., a Michigan corporation.

“Company Other Benefit Obligation” means an Other Benefit Obligation owed, adopted, or followed by the Company or an ERISA Affiliate of the Company.

“Company Plan” or “Company Plans” is defined in Section 4.11(a).

“Consent” means any approval, consent, ratification, waiver, or other authorization (including any Governmental Authorization).

“Contemplated Transactions” means all of the transactions contemplated by this Agreement, including (a) the Merger; (b) the execution, delivery, and performance of the Employment Agreements, the Non-competition Agreements, the NexGen Company Agreement and the Escrow Agreement; (c) the performance by Buyer and Shareholders of their respective covenants and obligations under this Agreement; and (d) Buyer’s exercise of control over the Company.

“Contract” means any agreement, contract, license, lease, guaranty, sales or purchase order, obligation, promise, understanding or undertaking (whether written or oral and whether express or implied) that is legally binding.

“Damages” is defined in Section 11.2.

“Data Room” is defined in Section 4.1(b).

“Disclosure Letter” means the Disclosure Letter delivered by Shareholders to Buyer concurrently with the execution and delivery of this Agreement.

“Disclosure Notice” is defined in Section 6.5(b).

“Employment Agreements” is defined in Section 8.7(f).

“Encumbrance” means any charge, claim, community property interest, condition, equitable interest, lien, option, pledge, security interest, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.

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“Environment” means soil, land surface or subsurface strata, surface waters (including navigable waters, ocean waters, streams, ponds, drainage basins, and wetlands), groundwaters, drinking water supply, stream sediments, ambient air (including indoor air), plant and animal life, and any other environmental medium or natural resource.

“Environmental, Health, and Safety Liabilities” means any cost, damages, expense, liability, obligation, or other responsibility arising from or under Environmental Law or Occupational Safety and Health Law and consisting of or relating to (a) any environmental, health, or safety matters or conditions (including on-site or off- site contamination, occupational safety and health, and regulation of chemical substances or products); (b) fines, penalties, judgments, awards, settlements, legal or administrative proceedings, damages, losses, claims, demands and response, investigative, remedial, or inspection costs and expenses arising under Environmental Law or Occupational Safety and Health Law; (c) financial responsibility under Environmental Law or Occupational Safety and Health Law for cleanup costs or corrective action, including any investigation, cleanup, removal, containment, or other remediation or response actions (“Cleanup”) required by applicable Environmental Law or Occupational Safety and Health Law (whether or not such Cleanup has been required or requested by any Governmental Body or any other Person) and for any natural resource damages; or (d) any other compliance, corrective, investigative, or remedial measures required under Environmental Law or Occupational Safety and Health Law. The terms “removal,” “remedial,” and “response action,” include the types of activities covered by the United States Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., as amended (“CERCLA”).

“Environmental Law” means any Legal Requirement that requires or relates to (a) advising appropriate authorities, employees, and the public of intended or actual releases of pollutants or hazardous substances or materials, violations of discharge limits, or other prohibitions and of the commencements of activities, such as resource extraction or construction, that could have significant impact on the Environment; (b) preventing or reducing to acceptable levels the release of pollutants or hazardous substances or materials into the Environment; (c) reducing the quantities, preventing the release, or minimizing the hazardous characteristics of wastes that are generated; (d) assuring that products are designed, formulated, packaged, and used so that they do not present unreasonable risks to human health or the Environment when used or disposed of; (e) protecting resources, species, or ecological amenities; (f) reducing to acceptable levels the risks inherent in the transportation of hazardous substances, pollutants, oil, or other potentially harmful substances; (g) cleaning up pollutants that have been released, preventing the threat of release, or paying the costs of such clean up or prevention; or (h) making responsible parties pay private parties, or groups of them, for damages done to their health or the Environment, or permitting self-appointed representatives of the public interest to recover for injuries done to public assets.

“ERISA” means the Employee Retirement Income Security Act of 1974 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.

“ERISA Affiliate” means with respect to the Company, any other Person that together with the Company would be or was at any time treated as a single employer under IRC §§ 414(b), (c), (m) or (o).

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“Escrow Agent” is defined in Section 2.3(a).

“Escrow Amount” is defined in Section 2.3(a).

“Escrow Agreement” is defined in Section 2.3(a).

“Executives” is defined in Section 6.7(g).

“Facilities” means any real property, leaseholds, or other interests currently or formerly owned or operated by the Company and any buildings, plants, structures, or equipment (including motor vehicles, tank cars, and rolling stock) currently or formerly owned or operated by the Company.

“FDA” means the U.S. Food and Drug Administration, and any successor agency or entity thereto that may be established thereafter.

“Future Technology” is defined in Section 6.10(a).

“GAAP” means generally accepted United States accounting principles, applied on a basis consistent with the basis on which the Balance Sheet and the other financial statements referred to in Section 2.4(b) were prepared.

“Governmental Authorization” means any approval, consent, license, permit, waiver, or other authorization issued, granted, given, or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement.

“Governmental Body” means any (a) nation, state, county, city, town, village, district, or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign, or other government; (c) governmental or quasi-Governmental Body of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); (d) multi-national organization or body; or (e) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.

“Hazardous Activity” means the distribution, generation, handling, importing, management, manufacturing, processing, production, refinement, Release, storage, transfer, transportation, treatment, or use (including any withdrawal or other use of groundwater) of Hazardous Substances in, on, under, about, or from the Facilities or any part thereof into the Environment, and any other act, business, operation, or thing that increases the danger, or risk of danger, or poses an unreasonable risk of harm to persons or property on or off the Facilities, or that may affect the value of the Facilities or the Company.

“Hazardous Substance” means any hazardous waste, as defined by 42 U.S.C. §6903(5), any hazardous substance as defined by 42 U.S.C. §9601(14), any pollutant or contaminant as defined by 42 U.S.C. §9601(33) and any toxic substance, oil or Hazardous Substance or other chemical or substance regulated by any Environmental Laws.

“HSR Act” is defined in Section 8.10.

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“Indemnity Escrow” is defined in Section 2.3(a).

“Intellectual Property Assets” means all Intellectual Property Rights owned, used, or licensed by the Company as licensee or licensor.

“Intellectual Property Rights” means (i) all fictional business names, trade names, trade dress, logos, domain names, product names and slogans, and trademarks, service marks, including any common law rights, registrations, and applications for registration for any of the foregoing, and the goodwill associated with all of the foregoing, worldwide (collectively, “Marks”); (ii) all inventions and discoveries (whether or not patentable or reduced to practice), patents, patent applications, improvements thereto, invention disclosures, and other rights of invention, worldwide, including without limitation any reissues, divisions, continuations and continuations in part, provisionals, reexamined patents or other applications or patents claiming the benefit of the filing date of any such application or patent (collectively, “Patents”); (iii) all copyrights in both published works and unpublished works, all rights in copyrights, including moral rights, website content, and other rights or authorship and exploitation, and any applications, registrations and renewals in connection therewith, worldwide (collectively, “Copyrights”); (iv) all know how, trade secrets, confidential information, technical information, including without limitation, web site user information, business and marketing plans, advertising statistics, any other financial, marketing and business data, technical data, specifications, schematics, customer lists, software, data, process technology, plans, drawings, and blue prints (collectively, “Trade Secrets”); (v) to the extent not covered by subsections (i) through (iv), above, software, web site registrations, domain names and web sites (including all related computer code and content); (vi) rights to exclude others from appropriating any of such intellectual property, including the rights to sue for and remedies against past, present and future infringements of any or all of the foregoing and rights or priority and protection or interests therein; and (vii) any other proprietary, intellectual property and other rights relating to any or all of the foregoing anywhere in the world.

“Interim Balance Sheet” is defined in Section 4.4.

“IRC” means the Internal Revenue Code of 1986 or any successor law, and regulations issued by the IRS pursuant to the Internal Revenue Code or any successor law.

“IRS” means the United States Internal Revenue Service or any successor agency, and, to the extent relevant, the United States Department of the Treasury.

“Knowledge” means actual knowledge of a fact or other matter following the exercise of a reasonable duty of inquiry and investigation with respect to such fact or other matter.

“Knowledge of the Company” means the Knowledge of A. Paul Schaap, Hashem Akhavan-Tafti, Richard S. Handley and Gary T. Priestap.

“Legal Requirement” means any federal, state, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty.

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“Livonia Property” is defined in Section 4.6.

“Material Adverse Effect” means, with respect to any Person, any change, effect, event, circumstance, occurrence or state of facts that is materially adverse to the business, financial condition, properties, assets or operations of such Person and its Subsidiaries, taken as a whole, and as currently conducted other than any change, effect, event, circumstance, occurrence or state of facts relating to (a) the economy or the financial markets in general, (b) the industry in which such Person and its Subsidiaries operates in general, (c) war, outbreak of hostilities or terrorist attacks, (d) the announcement of this Agreement or the transactions contemplated hereby, (e) changes in applicable laws or regulations after the date hereof, or (f) changes in GAAP or regulatory accounting principles after the date hereof.

“Non-competition Agreements” is defined in Section 8.7(e).

“Occupational Safety and Health Law” means any Legal Requirement designed to provide safe and healthful working conditions and to reduce occupational safety and health hazards, and any program, whether governmental or private (including those promulgated or sponsored by industry associations and insurance companies), designed to provide safe and healthful working conditions.

“Options” is defined in Section 4.3.

“Order” means any award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any court, administrative agency, or other Governmental Body or by any arbitrator.

“Ordinary Course of Business” means an action taken by a Person will be deemed to have been taken in the “Ordinary Course of Business” only if:

(a) such action is not required to be authorized by the board of directors of such Person and is consistent with the usual and customary practices of such Person ; and

(b) such action is similar in nature and magnitude to actions customarily taken, without any authorization by the board of directors, in the ordinary course of the normal day-to-day operations of other Persons that are in the same line of business as such Person.

“NexGen Company Agreement” is defined in Section 6.10(a).

“Organizational Documents” means (a) the articles of incorporation and the bylaws of a corporation; (b) any articles of organization and operating agreements of a limited liability company, (c) any charter or similar document adopted or filed in connection with the creation, formation, or organization of a Person; and (d) any amendment to any of the foregoing.

“Owned Property” means all real property and interests in real property and the buildings, structures and improvements thereon owned by the Company.

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“Person” means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or Governmental Body.

“Post-Closing Period” means (i) any taxable period beginning after the Closing Date and (ii) the portion of any Straddle Period beginning immediately after the Closing Date and ending on the last day of a Straddle Period.

“Pre-Closing Period” means (i) any taxable period ending at or before the close of business on the Closing Date and (ii) the portion of any Straddle Period beginning on the first day of such Straddle Period and ending at the close of business on the Closing Date.

“Proceeding” means any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.

“Regulatory Approvals and Product Registrations” means such official governmental approvals and registrations as may be required before a product may lawfully be sold in a certain country and such approvals of selling prices of products as may be necessary in connection with any social security reimbursement thereof.

“Related Person” means with respect to:

(a) a particular individual: (i) each other member of such individual’s Family; (ii) any Person that is directly or indirectly controlled by such individual or one or more members of such individual’s Family; (iii) any Person in which such individual or members of such individual’s Family hold (individually or in the aggregate) a Material Interest; and (iv) any Person with respect to which such individual or one or more members of such individual’s Family serves as a director, officer, partner, executor, or trustee (or in a similar capacity).

(b) a specified Person other than an individual: (i) any Person that directly or indirectly controls, is directly or indirectly controlled by, or is directly or indirectly under common control with such specified Person; (ii) any Person that holds a Material Interest in such specified Person; (iii) each Person that serves as a director, officer, partner, executor, or trustee of such specified Person (or in a similar capacity); (iv) any Person in which such specified Person holds a Material Interest; (v) any Person with respect to which such specified Person serves as a general partner or a trustee (or in a similar capacity); and (vi) any Related Person of any individual described in clause (ii) or (iii).

For purposes of this definition, (i) the “Family” of an individual includes (A) the individual, (B) the individual’s spouse and former spouses, (C) any other natural person who is related to the individual or the individual’s spouse within the second degree, and (D) any other natural person who resides with such individual, and (ii) ”Material Interest” means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of voting securities or other voting interests representing at least 5% of the outstanding voting power of a Person or equity securities or other equity interests representing at least 10% of the outstanding equity securities or equity interests in a Person.

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“Release” means any spilling, leaking, emitting, discharging, depositing, escaping, leaching, dumping, or other releasing into the Environment, whether intentional or unintentional.

“Representative” means with respect to a particular Person, any director, officer, employee, agent, consultant, contractor, subcontractor, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.

“Securities Act” means the Securities Act of 1933 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.

“SEC” means the United States Securities and Exchange Commission.

“Shareholders Representative” is defined in Section 3.12.

“Shareholders” means the Persons who are the record holders of the Shares.

“Shares” is defined in Section 2.2.

“Straddle Period” means any taxable period beginning before and ending after the Closing Date.

“Subsidiary” – with respect to any Person (the “Owner”), means any corporation or other Person of which securities or other interests having the power to elect a majority of that corporation’s or other person’s board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (other than securities or other interests having such power only upon the happening of a contingency that has not occurred) are held by the Owner or one or more of its Subsidiaries; when used without reference to a particular Person, “Subsidiary” means a Subsidiary of the Company.

“Target Working Capital” is defined in Section 3.1(b).

“Tax or “Taxes” means (a) any and all federal, state, local or foreign taxes, imposts, levies or other like assessments, including, without limitation, all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property, corporation and estimated taxes, custom duties and other taxes of any kind whatsoever, (b) all interest, penalties, fines, additions to tax or additional amounts imposed by any taxing authority in connection with any item described in clause (a), and (c) any transferee liability in respect of any items described in clauses (a) and/or (b).

“Tax Returns” means all returns, declarations, reports, estimates, information returns, statements, elections, disclosures and schedules required to be filed with any taxing authority in respect of any Taxes (including any attachments thereto or amendments thereof).

“Threat of Release” means a substantial likelihood of a Release that may require action in order to prevent or mitigate damage to the Environment that may result from such Release.

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“Threatened” means a claim, Proceeding, dispute, action, or other matter will be deemed to have been “threatened” if any demand or statement has been made (orally or in writing) or any notice has been given (orally or in writing), or if any other event has occurred or any other circumstances exist, that would lead a prudent Person to conclude that such a claim, Proceeding, dispute, action, or other matter is likely to be asserted, commenced, taken, or otherwise pursued in the future.

“Threshold Amount” has the meaning set forth in Section 11.4(a).

“Working Capital” means an amount equal to: (i) the Company’s current assets, minus (ii) the Company’s current liabilities, calculated in accordance with GAAP; provided that (i) any anticipated Tax benefit from any Tax losses which may be carried forward to a Post-Closing Period shall be treated as a current asset of the Company and (ii) any refundable Taxes or Tax benefits for any Pre-Closing Period shall be treated as a current tax asset for the purposes of the Working Capital determination.

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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first written above.

“SHAREHOLDERS”
	A. Paul and Carol C. Schaap Charitable Remainder Unitrust, Dated September 28, 2006
By:	/s/ S.K. Campbell
	Plante Moran Trust, Trustee, S.K. Campbell
	The A. Paul and Carol C. Schaap Foundation
By:	/s/ Michael D. Vander Weele
	Comerica Bank, Trustee, Michael D. Vander Weele
	/s/ A. Paul Schaap
	A. Paul Schaap
	/s/ Hashem Akhavan- Tafti
	Hashem Akhavan-Tafti
	/s/ Gary T. Priestap
	Gary T. Priestap
	/s/ Richard S. Handley
	Richard S. Handley
	Hashem Akhavan-Tafti TTEE of the Hashem Akhavan-Tafti Main Trust u/t/a dated December 19, 2003
By:	/s/ Hashem Akhavan- Tafti
	Hashem Akhavan-Tafti, Trustee

-65-

“BUYER”
Beckman Coulter, Inc. a Delaware corporation
By:	/s/ Scott Garrett
	Scott Garrett, President and Chief Executive Officer
“BUYER SUB”
NLAcqCo Inc. a Michigan corporation
By:	/s/ Scott Garrett
	Scott Garrett, President and Chief Executive Officer
“COMPANY”
Lumigen, Inc. a Michigan corporation
By:	/s/ A. Paul Schaap
	A. Paul Schaap, President
“SHAREHOLDERS REPRESENTATIVE”
	/s/ A. Paul Schaap
	A. Paul Schaap

-66-

EX-10.2

Exhibit 10.2

EXECUTION COPY

U.S. $185,000,000

BRIDGE CREDIT AGREEMENT

Dated as of October 31, 2006

among

BECKMAN COULTER, INC.

as Borrower

THE INITIAL LENDERS NAMED HEREIN

as Initial Lenders

CITICORP NORTH AMERICA, INC.

as Sole Administrative Agent

BANC OF AMERICA BRIDGE LLC

as Syndication Agent

CITIGROUP GLOBAL MARKETS INC.

and

BANC OF AMERICA SECURITIES LLC

as Lead Arrangers and Bookrunners

Table of Contents

		Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01.	Certain Defined Terms	1
SECTION 1.02.	Computation of Time Periods	11
SECTION 1.03.	Accounting Terms	11
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01.	The Advances	12
SECTION 2.02.	Making the Advances	12
SECTION 2.03.	Fees	13
SECTION 2.04.	Termination or Reduction of the Commitments	13
SECTION 2.05.	Repayment	13
SECTION 2.06.	Interest	13
SECTION 2.07.	Interest Rate Determination	13
SECTION 2.08.	Conversion of Advances	14
SECTION 2.09.	Prepayments	15
SECTION 2.10.	Increased Costs	15
SECTION 2.11.	Illegality	16
SECTION 2.12.	Payments and Computations	16
SECTION 2.13.	Taxes	17
SECTION 2.14.	Sharing of Payments, Etc.	19
SECTION 2.15.	Use of Proceeds	19
SECTION 2.16.	Replacement of Lenders	19
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01.	Conditions Precedent to Effectiveness of Section 2.01	19
SECTION 3.02.	Conditions Precedent to Each Borrowing	21
SECTION 3.03.	Determinations Under Section 3.01	21
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01.	Representations and Warranties of the Borrower	21
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01.	Affirmative Covenants	23
SECTION 5.02.	Negative Covenants	25
SECTION 5.03.	Financial Covenants	27
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01.	Events of Default	27
ARTICLE VII THE AGENT
SECTION 7.01.	Authorization and Action	29
SECTION 7.02.	Agent’s Reliance, Etc.	29
SECTION 7.03.	CNAI and Affiliates	29
SECTION 7.04.	Lender Credit Decision	29

		Page
SECTION 7.05.	Indemnification	30
SECTION 7.06.	Successor Agent	30
ARTICLE VIII MISCELLANEOUS
SECTION 8.01.	Amendments, Etc.	30
SECTION 8.02.	Notices, Etc.	30
SECTION 8.03.	No Waiver; Remedies	31
SECTION 8.04.	Costs and Expenses	32
SECTION 8.05.	Right of Set-off	33
SECTION 8.06.	Binding Effect	33
SECTION 8.07.	Assignments and Participations	33
SECTION 8.08.	Confidentiality	35
SECTION 8.09.	Governing Law	36
SECTION 8.10.	Execution in Counterparts	36
SECTION 8.11.	Jurisdiction, Etc.	36
SECTION 8.12.	Patriot Act Notice	36
SECTION 8.13.	Waiver of Jury Trial	37

Schedules

Schedule 1 - List of Applicable Lending Offices

Exhibits

Exhibit A - Form of Promissory Note

Exhibit B - Form of Notice of Borrowing

Exhibit C - Form of Assignment and Acceptance

Exhibit D-1 - Form of Opinion of Assistant General Counsel of the Borrower

Exhibit D-2 - Form of Opinion of Latham & Watkins LLP, Counsel for the Borrower

BRIDGE CREDIT AGREEMENT

Dated as of October 31, 2006

Among BECKMAN COULTER, INC., a Delaware corporation (the “Borrower”), the banks, financial institutions and other institutional lenders (the “Initial Lenders”) listed on the signature pages hereof, CITICORP NORTH AMERICA, INC. (“CNAI”), a Delaware corporation, as sole administrative agent (the “Agent”) for the Lenders (as hereinafter defined), BANC OF AMERICA BRIDGE LLC, as syndication agent, and CITIGROUP GLOBAL MARKETS INC. and BANC OF AMERICA SECURITIES LLC, as lead arrangers and bookrunners (the “Arrangers”):

PRELIMINARY STATEMENT:

The Borrower has requested that the Lenders make loans to it in an aggregate principal amount not exceeding $185,000,000 at any one time outstanding to provide funds for the Acquisition ( as hereinafter defined), and the Initial Lenders are prepared to make such loans upon the terms and conditions hereof. Accordingly, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01. Certain Defined Terms.

As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“Acquisition” has the meaning specified in Section 2.15.

“Advance” means an advance by a Lender to the Borrower pursuant to Article II, and refers to a Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a “Type” of Advance).

“Affected Lender” has the meaning specified in Section 2.16.

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.

“Agent’s Account” means the account of the Agent maintained by the Agent at Citibank with its office at 2 Penns Way, Suite 200, New Castle, Delaware 19720, Account No. 36852248, Attention: Bank Loan Syndications.

“Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.

“Applicable Margin” means, as of any date, a percentage per annum determined by reference to the Public Debt Rating of S&P, Moody’s and Fitch in effect on such date as set forth below:

Public Debt Rating S&P/Moody’s/Fitch	Applicable Margin
Level 1
A- / A3 / A- or higher	0.500	%
Level 2
Lower than Level 1, but at least BBB+ / Baa1 / BBB+	0.625	%
Level 3
Lower than Level 2, but at least BBB / Baa2 / BBB	0.725	%
Level 4
Lower than Level 3, but at least BBB- / Baa3 /BBB-	0.875	%
Level 5
Lower than Level 4, but at least BB+ / Ba1 / BB+	1.000	%
Level 6
Lower than Level 5	1.500	%

“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of Exhibit C hereto.

“Base Rate” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of:

(a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank’s base rate;

(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by dividing (A) the latest three-week moving average of secondary market morning offering rates in the United States for three-month certificates of deposit of major United States money market banks, such three-week moving average (adjusted to the basis of a year of 360 days) being determined weekly on each Monday (or, if such day is not a Business Day, on the next succeeding Business Day) for the three-week period ending on the previous Friday by Citibank on the basis of such rates reported by certificate of deposit dealers to and published by the Federal Reserve Bank of New York or, if such publication shall be suspended or terminated, on the basis of quotations for such rates received by Citibank from three New York certificate of deposit dealers of recognized standing selected by Citibank, by (B) a percentage equal to 100% minus the average of the daily percentages specified during such three-week period by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, but not limited to, any emergency, supplemental or other marginal reserve requirement) for Citibank with respect to liabilities consisting of or including (among other liabilities) three-month U.S. dollar non-personal time deposits in the United States, plus (iii) the average during such three-week period of the annual assessment rates estimated by Citibank for determining the then current annual assessment payable by Citibank to the Federal Deposit Insurance Corporation (or any successor) for insuring U.S. dollar deposits of Citibank in the United States; and

(c) 1/2 of one percent per annum above the Federal Funds Rate.

“Base Rate Advance” means an Advance that bears interest as provided in Section 2.06(a)(i).

“Borrowing” means a borrowing consisting of Advances of the same Type made on the same day by the Lenders.

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“Business Day” means a day of the year (other than a Saturday or Sunday) on which banks are not required or authorized by law to close in New York, New York and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the London interbank market.

“Citibank” means Citibank, N.A., a national banking association organized and existing under the laws of the United States of America.

“Commitment” means, as to any Lender, (a) if such Lender is an Initial Lender, the amount set forth opposite such Lender’s name on the signature pages hereof or (b) if such Lender has entered into any Assignment and Acceptance, the amount set forth for such Lender in the Register maintained by the Agent pursuant to Section 8.07(c), in each case as such amount may be reduced pursuant to Section 2.04.

“Compliance Certificate” has the meaning specified in Section 5.01(i)(i).

“Confidential Information” means information about the Borrower and its Subsidiaries or Lumigen Inc. and their existing and proposed operations, business plans, affairs, products and financial condition not generally disclosed to, or known by, the public that the Borrower furnishes to the Agent or any Lender pursuant to this Agreement.

“Consolidated” refers to the consolidation of accounts in accordance with GAAP.

“Convert”, “Conversion” and “Converted” each refers to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.07 or 2.08.

“Debt” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than (i) trade payables that are payable on customary terms and incurred in the ordinary course of such Person’s business, and (ii) deferred compensation to any employee or director of the Borrower or any of its Subsidiaries), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (f) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all net obligations of such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below and other payment obligations (collectively, “Guaranteed Debt”) guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Guaranteed Debt or to advance or supply funds for the payment or purchase of such Guaranteed Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Guaranteed Debt or to assure the holder of such Guaranteed Debt against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to in clauses (a) through (h) above (including Guaranteed Debt) secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt; provided, however, that clauses (h) and (i) shall not include up to $75,000,000 (in the aggregate) of Debt of Persons other than the Borrower and its Subsidiaries outstanding at any time if and to the extent that (i) such Debt evidences a lease or purchase of goods or services by such Person from the Borrower or any Subsidiary of the Borrower, (ii) such Debt would not otherwise constitute Debt but for the fact that the Borrower or any Subsidiary of the Borrower (or any property of the Borrower or any Subsidiary of the Borrower) is subject to recourse liability for the payment or purchase of all or a portion thereof in connection with the sale of such Debt and (iii) such recourse liability does not exceed 15% of the sale price thereof.

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“Default” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

“Defaulting Lender” means, at any time, any Lender that, at such time, (a) has failed to make any Advance required to be made by such Lender to the Borrower pursuant to Section 2.01 at or prior to such time, or (b) has failed to pay any amount required to be paid by such Lender to the Agent or any other Lender hereunder at or prior to such time, including, without limitation, any amount required to be paid by such Lender to (i) the Agent pursuant to Section 2.02(d) to reimburse the Agent for the amount of any Advance made by the Agent for the account of such Lender, (ii) any other Lender pursuant to Section 2.14 to purchase any participation in Advances owing to such other Lender, and (iii) the Agent pursuant to Section 7.05 to reimburse the Agent for such Lender’s ratable share of any amount required to be paid by the Lenders to the Agent as provided therein, or (c) shall take any action or be the subject of any action or proceeding described in Section 6.01(e).

“Domestic Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Agent.

“EBITDA” means, for any period, net income (or net loss) for such period plus the sum of (a) Interest Expense for such period, (b) income and franchise tax expense for such period, (c) depreciation expense for such period, (d) amortization expense for such period, and (e) extraordinary charges and special, one-time charges for such period but only to the extent not in excess of 20% of EBITDA for such period calculated without giving effect to this clause (e), in each case determined in accordance with GAAP.

“Effective Date” has the meaning specified in Section 3.01.

“Eligible Assignee” means (i) a Lender, (ii) an Affiliate of a Lender, and (iii) any other financial institution having a combined capital and surplus of at least $250,000,000 or other accredited investor (as defined in Regulation D under the Securities Act), in each case, approved by the Agent and, unless an Event of Default has occurred and is continuing at the time any assignment is effected in accordance with Section 8.07, the Borrower, such approval not to be unreasonably withheld or delayed (it being understood that any objection by the Borrower to any Person reasonably considered by the Borrower to be a competitor, or an Affiliate of a competitor, of the Borrower shall be deemed to be not unreasonable); provided, however, that neither the Borrower nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.

“Environmental Action” means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement by, to or against the Borrower or any Subsidiary of the Borrower or with respect to the business or properties of the Borrower or any Subsidiary of the Borrower relating in any way to any Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or any third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

“Environmental Law” means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials, in each case as applicable to the Borrower or any Subsidiary of the Borrower or with respect to the business or properties of the Borrower or any Subsidiary of the Borrower.

4

“Environmental Permit” means any permit, approval, identification number, license or other authorization required to be obtained by the Borrower or any Subsidiary of the Borrower or required in respect of any business or properties of the Borrower or any Subsidiary of the Borrower under any Environmental Law.

“Equipment for Resale” means any instrument systems and related accessories and components manufactured or assembled by or on behalf of the Borrower or any of its Subsidiaries that are owned by the Borrower or such Subsidiary and held for placement or placed (pursuant to leases, bailment arrangements or rental agreements) in facilities of the Borrower’s or such Subsidiary’s customers (including distributors, commission representatives, agents and their customers).

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the Borrower’s controlled group, or under common control with the Borrower, within the meaning of Section 414 of the Internal Revenue Code.

“ERISA Event” means (a) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of the Borrower or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; or (h) the institution, or the written threat of institution, by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA.

“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“Eurodollar Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Agent.

“Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing, the interest rate per annum obtained by dividing (a) the offered rate in the London interbank market for deposits in United States dollars for a term comparable to such Interest Period, as shown on the Moneyline Telerate Markets page 3750 as of 11:00 a.m., London time, two Business Days prior to the first day of such Interest Period, provided that (i) if more than one offered rate as described above appears on such Moneyline Telerate Markets page, the rate computed pursuant to this clause (a) shall be the arithmetic average (rounded upward, if necessary, to the next higher 1/100 of 1%) of such offered rates, (ii) if the Agent ceases generally to use such Moneyline Telerate Markets page for determining interest rates based on eurodollar deposit rates, a comparable internationally recognized interest rate reporting service selected by the Agent shall be used by the Agent in lieu of such Moneyline Telerate Markets page, and (iii) if no such offered rates as described above appear on such Moneyline Telerate Markets page (or such comparable reporting service), the rate computed pursuant to this clause (a) shall be the average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the rates per annum at which deposits in U.S. dollars are offered by the principal office of each of the Reference Banks in London, England to prime banks in the London

5

interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to such Reference Bank’s Eurodollar Rate Advance (or, in the case of Citibank, CNAI’s Eurodollar Rate Advance) comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period, by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period. In the case of clause (a)(iii) above, the Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing shall be determined by the Agent on the basis of applicable rates furnished to and received by the Agent from the Reference Banks two Business Days before the first day of such Interest Period, subject, however, to the provisions of Section 2.07.

“Eurodollar Rate Advance” means an Advance that bears interest as provided in Section 2.06(a)(ii).

“Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing means the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Advances is determined) having a term equal to such Interest Period.

“Events of Default” has the meaning specified in Section 6.01.

“Existing Credit Agreement” means the Amended and Restated Credit Agreement dated as of January 31, 2005 among the Borrower, the lenders parties thereto and Citicorp USA, Inc. as administrative agent for such lenders, as amended, supplemented, amended and restated or otherwise modified from time to time.

“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by it.

“Fitch” means Fitch, Inc.

“Funded Debt” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (c) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (d) all obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (e) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (f) all Funded Debt of others referred to in clauses (a) through (e) above or clause (g) below and other payment obligations (collectively, “Guaranteed Funded Debt”) guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Guaranteed Funded Debt or to advance or supply funds for the payment or purchase of such Guaranteed Funded Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Guaranteed Funded Debt or to assure the holder of such Guaranteed Funded Debt against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of

6

whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (g) all Funded Debt referred to in clauses (a) through (f) above (including Guaranteed Funded Debt) secured by (or for which the holder of such Funded Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Funded Debt; provided, however, that clauses (f) and (g) shall not include up to $75,000,000 (in the aggregate) of Funded Debt of Persons other than the Borrower and its Subsidiaries outstanding at any time if and to the extent that (i) such Funded Debt evidences a lease or purchase of goods or services by such Person from the Borrower or any Subsidiary of the Borrower, (ii) such Funded Debt would not otherwise constitute Funded Debt but for the fact that the Borrower or any Subsidiary of the Borrower (or any property of the Borrower or any Subsidiary of the Borrower) is subject to recourse liability for the payment or purchase of all or a portion thereof in connection with the sale of such Funded Debt and (iii) such recourse liability does not exceed 15% of the sale price thereof.

“GAAP” means generally accepted accounting principles (subject to Section 1.03, consistent with those applied in the preparation of any financial statements referred to in Section 4.01(e) hereof) in the United States of America as in effect on the date of this Agreement, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements of the Financial Accounting Standards Board or in such other statement by such other entity as approved by a significant segment of the United States accounting profession.

“Granting Lender” has the meaning specified in Section 8.07(h).

“Hazardous Materials” means (a) petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.

“Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency or commodity future or option contracts and other similar agreements.

“Interest Expense” means, for any period, the sum of (i) interest expense, including, without limitation and without duplication, (a) amortization of debt discount, (b) amortization of fees (including, without limitation, fees payable in respect of Hedge Agreements) payable in connection with the incurrence of Debt to the extent included in interest expense, and (c) the portion of any liabilities incurred in connection with capitalized leases allocable to interest expense, in each case of the Borrower and its Subsidiaries on a Consolidated basis, determined in accordance with GAAP for such period, and (ii) any dividends paid or accrued in respect of any preferred stock of the Borrower during such period.

“Interest Period” means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending on the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months, and subject to clause (c) of this definition, nine months, as the Borrower may, upon notice received by the Agent not later than 1:00 P.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, select; provided, however, that:

(a) the Borrower may not select any Interest Period that ends after the Termination Date;

(b) Interest Periods commencing on the same date for Eurodollar Rate Advances comprising part of the same Borrowing shall be of the same duration;

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(c) in the case of any such Borrowing, the Borrower shall not be entitled to select an Interest Period having duration of nine months unless, by 4:00 P.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, each Lender notifies the Agent that such Lender will be providing funding for such Borrowing with such Interest Period (the failure of any Lender to so respond by such time being deemed for all purposes of this Agreement as an objection by such Lender to the requested duration of such Interest Period); provided that, if any or all of the Lenders object to the requested duration of such Interest Period, the duration of the Interest Period for such Borrowing shall be one, two, three or six months, as specified by the Borrower in the applicable Notice of Borrowing as the desired alternative to an Interest Period of nine months;

(d) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; and

(e) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“Inventory” shall have the meaning ascribed to such term under GAAP.

“Lenders” means the Initial Lenders and each Person that shall become a party hereto pursuant to Section 8.07.

“Lien” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.

“Material Adverse Change” means any material adverse change (or any event or condition which, solely with the passage of time, has a substantial likelihood of causing or resulting in a Material Adverse Change) in the business, financial condition or operations of the Borrower and its Subsidiaries taken as a whole.

“Material Adverse Effect” means a material adverse effect on (a) the business, financial condition or operations of the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any Lender under this Agreement or any Note or (c) the ability of the Borrower to perform its obligations under this Agreement or any Note.

“Moody’s” means Moody’s Investors Service, Inc.

“Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

“Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which

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the Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

“Net Cash Proceeds” means the aggregate amount of cash and cash equivalents received in connection with any incurrence or issuance of Debt or the sale or issuance of any equity interests or equity-linked securities, net of the underwriting discounts and commissions and other similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses incurred by the issuer thereof in connection with such incurrence, sale or issuance.

“Note” means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Advances made by such Lender.

“Notice of Borrowing” has the meaning specified in Section 2.02.

“Other Taxes” has the meaning specified in Section 2.13.

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.

“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).

“Permitted Liens” means: (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen’s, mechanics’, landlords’, bailees’, carriers’, warehousmen’s, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 60 days or, if so overdue, are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (c) pledges or deposits in the ordinary course of business to secure non-delinquent obligations incurred in the ordinary course of business (other than for borrowed money) or non-delinquent obligations under workers’ compensation or unemployment laws or similar legislation or to secure the performance of public regulatory obligations which are not delinquent, bid, surety and appeal bonds, performance bonds or other obligations of a like nature (other than for borrowed money), deposits with utility companies or insurance carriers in the ordinary course of business, and bankers’ liens or rights of setoff with respect to bank accounts; (d) Uniform Commercial Code financing statements (or similar statements under foreign laws) filed for precautionary purposes in connection with any true lease of property which is not prohibited under this Agreement and under which the Borrower or any of its Subsidiaries is lessee, provided that any such financing statement does not cover any property other than the property subject to such lease and the proceeds thereof; and Uniform Commercial Code financing statements filed in connection with any Liens otherwise permitted under this Agreement, provided that any such financing statements do not cover any property other than the property subject to such Liens and the proceeds thereof; (e) easements, rights of way and other non-monetary encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes; and (f) any Liens arising as a result of a sale or discount in the ordinary course of business by the Borrower or any Subsidiary of the Borrower of customer leases or other receivables for cash in a amount not less than the fair market value thereof (after taking into account customary reserves for losses, yield protection, fees and similar matters), provided that such Liens shall cover only the assets sold or the equipment subject to such leases and the proceeds thereof.

“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.

“Plan” means a Single Employer Plan or a Multiple Employer Plan.

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“Public Debt Rating” means, as of any date, the lowest rating that has been most recently announced by S&P, Moody’s or Fitch, as the case may be, for any class of non-credit enhanced long-term senior unsecured debt issued by the Borrower. For purposes of the foregoing, (a) if only one of S&P, Moody’s and Fitch shall have in effect a Public Debt Rating, the Applicable Margin will be determined by reference to the available rating; (b) if none of S&P, Moody’s or Fitch shall have in effect a Public Debt Rating, the Applicable Margin will be set in accordance with Level 6 under the definition of Applicable Margin; (c) if the ratings established by S&P, Moody’s and Fitch shall fall within different levels and the ratings of two such agencies are at the same level, the Applicable Margin shall be based upon such ratings; (d) if the ratings established by S&P, Moody’s and Fitch shall fall within three different levels, the Applicable Margin shall be based upon the rating at the median level; (e) if any rating established by S&P, Moody’s or Fitch shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (f) if S&P, Moody’s or Fitch shall change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P, Moody’s or Fitch, as the case may be, shall refer to the then equivalent rating by S&P, Moody’s or Fitch, as the case may be.

“Purchase Agreement” means the Agreement and Plan of Merger by and among Lumigen Inc., the Borrower, NLACQCO, certain shareholders of Lumigen Inc. and A. Paul Schapp as the Shareholder representative.

“Reference Banks” means Citibank and Banc of America Bridge LLC

“Register” has the meaning specified in Section 8.07(c).

“Required Lenders” means, at any time, Lenders owed at least a majority in interest of the then aggregate unpaid principal amount of the Advances owing to Lenders, or, if no such principal amount is then outstanding, Lenders having at least a majority in interest of the Commitments.

“Responsible Officer” means the Chairman, the Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer of the Borrower.

“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc.

“Significant Subsidiary” means each Subsidiary now existing or hereafter acquired or formed, and each successor thereto, which accounts for more than 5% of (i) the Consolidated gross revenues of the Borrower and its Subsidiaries, (ii) Consolidated EBITDA, or (iii) the Consolidated assets of the Borrower and its Subsidiaries, in each case, as of the last day of the most recently completed fiscal quarter of the Borrower with respect to which, pursuant to clauses (i) or (ii) of Section 5.01(i), financial statements have been, or are required to have been, delivered by the Borrower.

“Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and no Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

“Solvent” means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property constitutes an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances

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existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“SPC” has the meaning specified in Section 8.07(h).

“Specified Officer” means any Responsible Officer, the Secretary and General Counsel of the Borrower, and any other executive officer identified as such in the Borrower’s annual report on Form 10-K filed pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.

“Taxes” has the meaning specified in Section 2.13.

“Termination Date” means the earliest of (a) October 30, 2007, (b) the date the Borrower notifies the Arrangers that the Acquisition has been abandoned, (c) the date upon which the Borrower receives Net Cash Proceeds equal to at least $185,000,000 from the issuance of debt or equity or equity-linked securities, the proceeds of which shall be used to fully fund the Acquisition and (d) the date of termination in whole of the Commitments pursuant to Section 2.04 or 6.01.

“Type” shall have the meaning ascribed to such term in the definition of the term “Advance”.

“Voting Stock” means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.

SECTION 1.02. Computation of Time Periods. In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.

SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP. In the event any “Accounting Change” (as defined below) shall occur and such changes affect the calculation of any financial covenant set forth in Section 5.03 of this Agreement, then the Borrower and the Lenders agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Change with the desired result that the criteria for evaluating the financial condition of Borrower and its Subsidiaries shall be the same after such Accounting Change as if such Accounting Change had not been made, and until such time as such an amendment shall have been executed and delivered by the Borrower and Required Lenders, (A) such financial covenants, shall be calculated as if such Accounting Change had not been made, and (B) the Borrower shall include with each compliance certificate and the financial statements required to be delivered hereunder, a reconciliation that shows the differences between the financial statements delivered (which reflect such Accounting Change) and the basis for calculating financial covenant compliance (without reflecting such Accounting Change). “Accounting Change” means an accounting pronouncement issued or in effect on or after December 31, 2005 which results in a change in accounting principles required by generally accepted accounting principles and implemented by the Borrower.

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ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES

SECTION 2.01. The Advances. Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make a single Advance to the Borrower on any Business Day during the period from and including the Effective Date until November 30, 2006 in an amount not to exceed such Lender’s Commitment. Amounts borrowed under this Section 2.01 and repaid pursuant to Section 2.05 or prepaid pursuant to Section 2.09 may not be reborrowed.

SECTION 2.02. Making the Advances. (a) The Borrowing shall be made on notice, given not later than 1:00 P.M. (New York City time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances, or on the same Business Day of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the Borrower to the Agent, which shall give to each Lender prompt notice thereof by facsimile transmission or electronic mail message. Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed promptly in writing, or facsimile transmission or electronic mail message, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for each such Advance. The Agent shall provide the Borrower with an acknowledgment of receipt of each Notice of Borrowing specifying a Eurodollar Rate Advance on the next Business Day. Each Lender shall, before 2:00 P.M. (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing. Promptly after the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower no later than 4:00 P.M. (New York City time) at the Agent’s address referred to in Section 8.02.

(b) Anything in Section 2.02 (a) above to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is less than $5,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.07 or 2.11 and (ii) the Eurodollar Rate Advances may not be outstanding as part of more than ten separate Borrowings.

(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.

(d) Unless the Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Agent such Lender’s ratable portion of such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such Borrowing in accordance with Section 2.02(a) and the Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of this Agreement.

(e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but

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no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.

SECTION 2.03. Fees. Fees of the Agent and the Arrangers. The Borrower shall pay to the Agent and each of the Arrangers for their respective accounts such fees as may from time to time be agreed between the Borrower and the Agent and the Arrangers.

SECTION 2.04. Termination or Reduction of the Commitments. (a) Optional. The Borrower shall have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole or permanently reduce ratably in part the unused portions of the respective Commitments of the Lenders, provided that each partial reduction shall be in the aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.

(b) Mandatory. The Commitments shall be permanently reduced, in whole or in part, upon the receipt by the Borrower or its Subsidiaries of Net Cash Proceeds from (i) the incurrence or issuance by the Borrower or any of its Subsidiaries of any Debt for borrowed money (other than (A) intercompany Debt, (B) Debt incurred under the Existing Credit Agreement (or any refinancings thereof without increase of the principal amount), (C) commercial paper facilities, (D) cash management facilities, (E) other short term borrowings and (F) Debt incurred by any Subsidiary of the Borrower to finance operations of such Subsidiary) and (ii) the sale or issuance by the Borrower or any of its Subsidiaries of any equity interests or equity-linked securities in the capital markets, in each of case (A) and (B) in an amount equal to the amount of such Net Cash Proceeds. Each such reduction shall be applied ratably to the portions of the respective Commitments of the Lenders.

SECTION 2.05. Repayment. The Borrower shall repay to the Agent for the ratable account of the Lenders on the Termination Date the aggregate principal amount of the Advances then outstanding.

SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

(i) Base Rate Advances. During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the Base Rate in effect from time to time, payable in arrears quarterly on the last day of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted or paid in full.

(ii) Eurodollar Rate Advances. During such periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such Advance plus (y) the Applicable Margin in effect from time to time, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar Rate Advance shall be Converted or paid in full.

(b) Default Interest. Upon the occurrence and during the continuance of an Event of Default under Section 6.01(a), the Borrower shall pay interest on (i) the unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2.00% above the interest rate required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable hereunder that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2.00% above the interest rate required to be paid on Base Rate Advances pursuant to clause (a)(i) above.

SECTION 2.07. Interest Rate Determination. (a) In the event that the Eurodollar Rate is to be determined in accordance with clause (a)(iii) of the definition thereof, each Reference Bank shall, upon request by the Agent, furnish to the Agent timely information for the purpose of determining such Eurodollar Rate. In such case, if any one or more of the Reference Banks shall not furnish such timely information to the Agent for the

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purpose of determining any such interest rate, the Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Bank. The Agent shall give prompt notice to the Borrower and the Lenders of the applicable interest rate determined by the Agent for purposes of Section 2.06(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for the purpose of determining the interest rate under Section 2.06(a)(ii).

(b) If, with respect to any Eurodollar Rate Advances, the Required Lenders notify the Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.

(c) If the Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders and such Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into Base Rate Advances.

(d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $5,000,000, such Advances shall automatically Convert into Base Rate Advances.

(e) Upon the occurrence and during the continuance of any Event of Default, (i) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended.

(f) If no Reference Bank shall timely furnish information to the Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances (in the event that clause (a)(iii) of the definition of Eurodollar Rate shall apply):

(i) the Agent shall forthwith notify the Borrower and the Lenders that the interest rate cannot be determined for such Eurodollar Rate Advances,

(ii) each such Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance (or if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and

(iii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.

SECTION 2.08. Conversion of Advances. The Borrower may on any Business Day, upon notice given to the Agent not later than 1:00 P.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.07 and 2.11, Convert all Advances of one Type comprising the same Borrowing into Advances of the other Type; provided, however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made only on the last day of an Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less than the minimum amount specified in Section 2.02(b) and no Conversion of any Advances shall result in more separate Borrowings than permitted under Section 2.02(b). Each such notice of a Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial Interest Period for each such Advance. Each notice of Conversion shall be irrevocable and binding on the Borrower.

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SECTION 2.09. Prepayments. (a) Optional. The Borrower may, upon same day notice not later than 12:00 noon (New York City time), with respect to Base Rate Advances or at least three Business Days’ notice with respect to Eurodollar Rate Advances to the Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amount of the Advances comprising part of the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 8.04(c).

(b) Mandatory. (i) The Borrower shall, on the first Business Day after the date of receipt of the Net Cash Proceeds by the Borrower or any of its Subsidiaries from (A) the incurrence or issuance by the Borrower or any of its Subsidiaries of any Debt for borrowed money (other than (1) intercompany Debt, (2) Debt incurred under the Existing Credit Agreement or refinancings thereof (without increase in the principal amount thereof), (3) commercial paper facilities, (4) cash management facilities, (5) other short term borrowings and (6) Debt incurred by any Subsidiary of the Borrower to finance operations of such Subsidiary) and (B) the sale or issuance by the Borrower or any of its Subsidiaries of any equity interests or equity-linked securities in the capital markets, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the amount of such Net Cash Proceeds. Each such prepayment shall be applied ratably to the Advances comprising a Borrowing.

(ii) Each prepayment made pursuant to this Section 2.09(b) shall be made together with any interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case of any prepayment of a Eurodollar Rate Advance on a date other than the last day of an Interest Period or at its maturity, any additional amounts which the Borrower shall be obligated to reimburse to the Lenders in respect thereof pursuant to Section 8.04(c). The Agent shall give prompt notice of any prepayment required under this Section 2.09(b) to the Borrower and the Lenders.

SECTION 2.10. Increased Costs. (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation after the date hereof or (ii) the compliance with any guideline or request issued or made after the date hereof by any central bank or other governmental authority having jurisdiction over a Lender (whether or not having the force of law), there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Advances (excluding for purposes of this Section 2.10 any such increased costs resulting from (A) Taxes or Other Taxes (as to which Section 2.13 shall govern) and (B) changes in the basis of taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction or state under the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereof), then the Borrower shall from time to time, within five days after written demand by such Lender together with a calculation of the amount demanded in reasonable detail (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost; provided, however, that the Borrower shall not be liable under this Section 2.10(a) for the payment of any such amounts incurred or accrued more than 90 days prior to the date on which notice of the event or occurrence giving rise to the obligation to make such payment is given to the Borrower hereunder; provided, further, that if the event or occurrence giving rise to such obligation is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof; provided further that (1) if the Borrower objects in good faith to any payment demanded under this Section 2.10(a) on or before the date such payment is due, then the Borrower and the Lender demanding such payment shall enter into discussions to review the amount due and the Borrower’s obligation to pay such amount to such Lender shall be deferred for 30 days after the original demand for payment and (2) if the Borrower and such Lender do not otherwise reach agreement on the amount due during such 30 day period, the Borrower shall pay to such Lender at the end of such 30 day period the amount certified by such Lender to be due. Subject to the last proviso in the preceding sentence, a certificate as to such amounts submitted to the Borrower and the Agent by any Lender shall be conclusive and binding for all purposes, absent manifest error. If any Lender shall request any payment from the Borrower under this Section 2.10(a) in respect of any increased costs, such Lender agrees, upon request by the Borrower, to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Eurodollar Lending Office if the making of such a designation would avoid or reduce any such increased costs and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.

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(b) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation after the date hereof or (ii) the compliance after the date hereof with any guideline or request issued or made after the date hereof by any central bank or other governmental authority having jurisdiction over a Lender (whether or not having the force of law), there shall be any increase in the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender as a result of or based upon the existence of such Lender’s commitment to lend hereunder and other commitments of such type, then, within five days after written demand by such Lender together with a calculation of the amount demanded in reasonable detail (with a copy of such demand to the Agent), the Borrower shall pay to the Agent for the account of such Lender from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender’s commitment to lend hereunder; provided, however, that the Borrower shall not be liable under this Section 2.10(b) for the payment of any such amounts incurred or accrued more than 90 days prior to the date on which notice of the event or occurrence giving rise to the obligation to make such payment is given to the Borrower hereunder; provided, further, that if the event or occurrence giving rise to such obligation is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof; provided further that (1) if the Borrower objects in good faith to any payment demanded under this Section 2.10(b) on or before the date such payment is due, then the Borrower and the Lender demanding such payment shall enter into discussions to review the amount due and the Borrower’s obligation to pay such amount to such Lender shall be deferred for 30 days after the original demand for payment and (2) if the Borrower and such Lender do not otherwise reach agreement on the amount due during such 30 day period, the Borrower shall pay to such Lender at the end of such 30 day period the amount certified by such Lender to be due. Subject to the last proviso in the preceding sentence, a certificate as to such amounts submitted to the Borrower and the Agent by such Lender shall be conclusive and binding for all purposes, absent manifest error.

(c) Any determination under this Section 2.10 in respect of CNAI shall be made as though Citibank were a party to this Agreement in place of CNAI.

SECTION 2.11. Illegality. Notwithstanding any other provision of this Agreement, if any Lender shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation, after the date hereof, makes it unlawful, or any central bank or other governmental authority having jurisdiction over a Lender asserts after the date hereof that it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, then, on notice thereof and demand therefor by such Lender to the Borrower through the Agent, (a) each Eurodollar Rate Advance will automatically, upon the later of such demand and the date required by applicable law, Convert into a Base Rate Advance and (b) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist; provided, however, that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Eurodollar Lending Office if the making of such a designation would allow such Lender or its Eurodollar Lending Office to continue to perform its obligations to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate Advances and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.

SECTION 2.12. Payments and Computations. (a) The Borrower shall make each payment hereunder and under the Notes, irrespective of any right of counterclaim or set-off, not later than 12:00 noon (New York City time) on the day when due in U.S. dollars to the Agent at the Agent’s Account in same day funds. The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or facility fees ratably (other than amounts payable pursuant to Section 2.10, 2.13 or 8.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 8.07(d), from and after the effective date specified in such Assignment and

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Acceptance, the Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

(b) The Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or under the Note held by such Lender, to charge from time to time against any or all of the Borrower’s accounts with such Lender any amount so due.

(c) All computations of interest based on the Base Rate and of utilization fee (to the extent such utilization fee relates to Base Rate Advances) shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of facility fees or utilization fees (to the extent such utilization fee relates to Eurodollar Advances or shall be made by the Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or facility fees are payable. Each determination by the Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

(d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or facility fee, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.

(e) Unless the Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder that the Borrower will not make such payment in full, the Agent may assume that the Borrower has made such payment in full to the Agent on such date and the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at the Federal Funds Rate.

SECTION 2.13. Taxes. (a) Except as provided in Section 2.13(f), any and all payments by the Borrower hereunder or under the Notes shall be made, in accordance with Section 2.12, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Agent, taxes imposed on its overall net income, and franchise taxes imposed in lieu thereof, by the jurisdiction under the laws of which such Lender or the Agent is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and franchise taxes imposed in lieu thereof, by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under the Notes being hereinafter referred to as “Taxes”). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note to any Lender or the Agent, (i) except as provided in Section 2.13(f), the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.13) such Lender or the Agent receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other governmental authority in accordance with applicable law.

(b) In addition, the Borrower shall pay when due any present or future stamp or documentary taxes or any other excise, property or similar taxes, charges or similar levies that arise from any payment made hereunder or under the Notes or any other documents to be delivered hereunder or from the execution, delivery or registration of, performance under or otherwise with respect to, this Agreement or the Notes or any other documents to be delivered hereunder (hereinafter referred to as “Other Taxes”).

(c) The Borrower shall indemnify each Lender and the Agent for and hold it harmless against the full amount of Taxes or Other Taxes and for the full amount of taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.13, imposed on or paid by such Lender or the Agent, as the case may be,

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and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. These indemnification payments shall be made within 30 days from the date on which such Lender or the Agent makes written demand therefor, accompanied by a calculation in reasonable detail of the amount demanded and evidence of the Taxes, Other Taxes or taxes of any kind imposed by any jurisdiction on amounts payable under this Section 2.13 imposed or paid by the Agent or any Lender.

(d) Within 30 days after the date of any payment of Taxes, by the Borrower pursuant to this Section 2.13, the Borrower shall furnish to the Agent, at its address referred to in Section 8.02, evidence reasonably satisfactory to the Agent of such payment.

(e) Each Lender organized under the laws of a jurisdiction outside the United States, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender, and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Lender, and from time to time thereafter as reasonably requested in writing by the Borrower (but only so long as such Lender remains lawfully able to do so), shall provide each of the Agent and the Borrower with two original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or the Notes. In addition to the forms described in the immediately preceding sentence, each Lender organized under the laws of a jurisdiction outside the United States shall, upon the request of the Borrower or the Agent in writing, (i) provide each of the Agent and the Borrower with two further copies of such forms or other appropriate certification of such forms on or before the date that any such form expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form delivered to the Borrower, and (ii) obtain such extensions of the time for the filing and renew such forms and certifications thereof as may be reasonably requested by the Borrower or the Agent. If the form (or forms) provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such form; provided, however, that, if at the date of the Assignment and Acceptance pursuant to which a Lender assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (a) of this Section 2.13 in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender assignee on such date. For purposes of this subsection (e), the term “United States” shall have the meaning specified in Section 7701 of the Internal Revenue Code.

(f) For any period with respect to which a Lender has failed to provide the Borrower with the appropriate form described in Section 2.13(e) or failed to seek an extension of the time for filing such successor form as required in writing to do so by the Agent or the Borrower in accordance with Section 2.13(e) (other than if such failure is due to a change in law occurring subsequent to the date on which a form originally was required to be provided, or if such form otherwise is not required under subsection (e) above), such Lender shall not be entitled to indemnification under Section 2.13(a) or (c) with respect to Taxes imposed by the United States by reason of such failure; provided, however, that, should a Lender become subject to Taxes because of its failure to deliver a form required hereunder, the Borrower shall take such steps (at such Lender’s expense) as the Lender shall reasonably request to assist the Lender to recover such Taxes.

(g) In the event that an additional payment is made under Section 2.13(a) or (c) for the account of any Lender or Agent, such Lender or Agent, as applicable, shall determine whether it has received or been granted a Tax Benefit (as defined hereinafter), and if such Lender or Agent, as applicable, in its sole discretion, determines that it has finally and irrevocably received or been granted a credit against or release or remission for, or repayment of, any tax paid or payable by or for it in respect of or calculated with reference to such payment or the deduction or withholding giving rise to such payment (a “Tax Benefit”), such Lender or Agent shall, to the extent that it determines that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment pay to the Borrower such amount as such Lender shall, in its sole discretion, have determined to be attributable to such Tax Benefit and which will leave such Lender (after such payment) in no worse position than it would have been in if the Borrower had not been required to make such payment, deduction or withholding. Nothing herein contained shall interfere with the right of a Lender to arrange its tax affairs in whatever manner it

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thinks fit nor oblige any Lender or Agent to claim any tax credit or to disclose any information relating to its tax affairs or any computations in respect thereof or require any Lender or Agent to do anything that would prejudice its ability to benefit from any other credits, reliefs, remissions or repayments to which it may be entitled.

(h) If the Borrower is required to pay any amount to any Lender or the Agent pursuant to subsection (a), (b), or (c) of this Section 2.13, then such Lender or the Agent shall use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Applicable Lending Office so as to eliminate (or, if elimination is not reasonably possible, to minimize) any such additional payment by the Borrower which may thereafter accrue, if such change in the sole judgment of such Lender or the Agent, as the case may be, is not otherwise disadvantageous to such Lender or the Agent.

(i) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower and each Lender and Agent contained in this Section 2.13 shall survive the repayment of the Advances and the other obligations hereunder or under the Notes and the termination of the Commitments hereunder.

SECTION 2.14. Sharing of Payments, Etc. If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Advances owing to it (other than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its ratable share of payments on account of the Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.14 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.

SECTION 2.15. Use of Proceeds. The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) solely to finance the acquisition of Lumigen Inc. (the “Acquisition”), and to pay related costs and expenses.

SECTION 2.16. Replacement of Lenders. If any Lender (a) requests the payment of additional amounts under Sections 2.10 or 2.13, (b) is unable to make Eurodollar Rate Advances in accordance with Section 2.11, (c) is a Defaulting Lender, or (d) refuses to consent to a proposed amendment, waiver or other modification which requires the consent of all Lenders and has been approved by Required Lenders (any such Lender, an “Affected Lender”), then Borrower may, at its option replace such Lender with an Eligible Assignee (which may be another Lender or an Affiliate of a Lender) which executes and delivers to the Affected Lender an Assignment and Acceptance with respect to the Commitments of the Affected Lender, and in such case the Affected Lender shall execute and deliver to such replacement lender an Assignment and Acceptance and, in consideration of the purchase, at par, without premium or penalty, of the Note of such Affected Lender and the assumption of its obligations hereunder, assign to the replacement lender its Commitments and outstanding Advances hereunder. In the event of an assignment under this Section, the processing fee referred to in Section 8.07 hereof shall be paid by the Borrower, provided, that no such fee shall be paid if the assignment is to an existing Lender.

ARTICLE III

CONDITIONS TO EFFECTIVENESS AND LENDING

SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:

(a) There shall have occurred no Material Adverse Change since December 31, 2005.

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(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would have a Material Adverse Effect or (ii) would be reasonably likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.

(c) All material governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions to any governmental consents that are not reasonably acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.

(d) The Borrower shall have notified the Agent in writing as to the proposed Effective Date.

(e) The Borrower shall have paid all accrued fees and expenses of the Agent, the Arrangers and the Lenders (including the accrued fees and expenses of counsel to the Agent for which an invoice has been received prior to the Effective Date).

(f) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:

(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and

(ii) No event has occurred and is continuing that constitutes a Default.

(g) The Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:

(i) Duly executed counterparts of this Agreement and Notes payable to the order of each of the Lenders, respectively.

(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.

(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.

(iv) A favorable opinion of each of (A) the Assistant General Counsel to the Borrower, and (B) Latham & Watkins LLP, counsel for the Borrower, in substantially the forms of Exhibits D-1 and D-2 hereto, respectively.

(v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance satisfactory to the Agent.

(vi) Such other information, certificates and documents as the Agent may reasonably request on behalf of itself or any Lender.

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(h) All of the conditions precedent to the consummation of the Acquisition (other than the payment of the proceeds of Advances) shall have been satisfied substantially in accordance with the Purchase Agreement, with no amendment, modification or waiver adverse to the interests of the Lenders in any material respect except as agreed to by the Arrangers.

SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation of each Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred, and on the date of such Borrowing (a) the following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing such statements are true):

(i) the representations and warranties contained in Section 4.01 (except the representations set forth in the last sentence of subsection (e) thereof and in subsection (f)(i) thereof) are true and correct on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (except to the extent such representations and warranties relate to an earlier date, in which case as though made on and as of such earlier date); and

(ii) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom that constitutes a Default;

and (b) the Agent shall have received such other approvals, opinions or documents as any Lender through the Agent may reasonably request.

SECTION 3.03. Determinations Under Section 3.01. For purposes of determining compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that the Borrower, by notice to the Agent, designates as the proposed Effective Date, specifying its objection thereto. The Agent shall promptly notify the Lenders of the occurrence of the Effective Date.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

SECTION 4.01. Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:

(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b) The execution, delivery and performance by the Borrower of this Agreement and the Notes, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene the Borrower’s charter or by-laws, (ii) violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award binding on the Borrower or any property of the Borrower or (iii) conflict with or result in a breach of any contractual restriction binding on or affecting the Borrower, except, in the case of (ii) or (iii) above, to the extent that such contravention could not reasonably be expected to have a Material Adverse Effect.

(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes.

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(d) This Agreement has been, and each of the Notes when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors generally and the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law.

(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2005, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at June 30, 2006, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the six months then ended, copies of which have been delivered or made available to the Lenders, fairly present in all material respects, subject, in the case of said balance sheet as at June 30, 2006, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments and the presentation of footnotes, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates. Since December 31, 2005, there has been no Material Adverse Change.

(f) There is no pending or, to the knowledge of any Specified Officer, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, against the Borrower or any of its Subsidiaries or affecting the properties of the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) would have a Material Adverse Effect or (ii) would be reasonably likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.

(g) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System (“Regulation U”)), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.

(h) Neither the Borrower nor any of its Subsidiaries is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Neither the making of any Advances, nor the application of the proceeds or repayment thereof by the Borrower will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.

(i) No written factual information, exhibit or report furnished by the Borrower in writing to the Agent or any Lender in connection with the negotiation of this Agreement or pursuant to the terms of this Agreement, contains, as of the date furnished, any untrue statement of a material fact or omits to state a material fact necessary to make the statements made therein, taken as a whole, not misleading in the light of the circumstances under which such information, exhibit or report was delivered.

(j) The Borrower and its Subsidiaries taken as a whole are and, after the receipt and application of each of the Advances in accordance with the terms of this Agreement, will be Solvent.

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ARTICLE V

COVENANTS OF THE BORROWER

SECTION 5.01. Affirmative Covenants

So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will:

(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with Regulation U, ERISA, Environmental Laws and the Patriot Act, if failure to so comply could reasonably be expected to have a Material Adverse Effect.

(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither the Borrower nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim (A) that is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained or (B) if the failure to pay or discharge any such tax, assessment, charge or claim could not reasonably be expected to have a Material Adverse Effect.

(c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Borrower or such Subsidiary operates.

(d) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause each of its Significant Subsidiaries to preserve and maintain, (i) its corporate existence and (ii) its rights (charter and statutory), permits, licenses, approvals, privileges and franchises in each jurisdiction where necessary or where failure to do so could reasonably be expected to have a Material Adverse Effect; provided, however, that the Borrower and its Subsidiaries may consummate any merger, consolidation, liquidation, dissolution or winding up permitted under Section 5.02(b) and provided, further that neither the Borrower nor any of its Subsidiaries shall be required to preserve any right or franchise if the officers authorized by the Board of Directors of the Borrower or such Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Borrower or such Subsidiary, as the case may be, and that the loss thereof is not disadvantageous in any material respect to the Borrower or the Lenders.

(e) Visitation Rights. At any reasonable time during normal business hours and from time to time, on reasonable prior notice to the Borrower, permit the Agent or any of the Lenders or any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Borrower, and to discuss the affairs, finances and accounts of the Borrower with any of its officers or directors and, in the company of a Responsible Officer or his designee, with their independent certified public accountants; provided, however, that when a Default exists, the Agent or any Lender (or any of their respective representatives or independent contractors), may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice.

(f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct (in all material respects) entries shall be made of all financial transactions and the assets and business of the Borrower and each such Subsidiary in accordance with generally accepted accounting principles in effect from time to time.

(g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its material properties that are useful or necessary in the conduct of its business in good working order and condition, ordinary wear and tear excepted.

(h) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries to conduct, all transactions otherwise permitted under this Agreement with any of their Affiliates on terms that are fair and reasonable and no less favorable to the Borrower or such Subsidiary than it would obtain in a comparable

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arm’s-length transaction with a Person not an Affiliate; provided, however, that this Section 5.01(h) shall not apply to transactions between or among the Borrower and its Subsidiaries.

(i) Reporting Requirements. Furnish to the Lenders:

(i) as soon as available and in any event within 50 days after the end of each of the first three quarters of each fiscal year of the Borrower, the Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by a Responsible Officer as having been prepared in accordance with generally accepted accounting principles, together with a certificate of a Responsible Officer as to compliance with the terms of this Agreement and setting forth, in a form reasonably satisfactory to the Agent, the calculations necessary to demonstrate compliance with Section 5.03 (a “Compliance Certificate”), provided that in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.03, a statement of reconciliation conforming such financial statements to GAAP;

(ii) as soon as available and in any event within 95 days after the end of each fiscal year of the Borrower, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, containing the Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case accompanied by an opinion of KPMG LLP or other independent public accountants acceptable to the Required Lenders that the Consolidated financial statements fairly present in all material respects the financial position and results of operations and cash flows of the Borrower and its Subsidiaries in conformity with generally accepted accounting principles (without qualification as to going concern or scope of audit), together with a Compliance Certificate, provided that in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.03, a statement of reconciliation conforming such financial statements to GAAP;

(iii) as soon as possible and in any event within two Business Days after any Responsible Officer obtains knowledge of the occurrence of any Default continuing on the date of such statement, a statement of a Responsible Officer setting forth details of such Default or other event and the action that the Borrower has taken and proposes to take with respect thereto;

(iv) promptly after the sending or filing thereof, copies of all quarterly and annual reports and proxy solicitations that the Borrower sends to its public securityholders, and copies of all reports on Form 8-K that the Borrower or any Subsidiary files with the Securities and Exchange Commission;

(v) promptly after, and in any event within two Business Days after a Specified Officer obtains knowledge of, the commencement thereof, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting the Borrower or any of its Subsidiaries of the type described in Section 4.01(f); and

(vi) such other information respecting the Borrower or any of its Subsidiaries as any Lender through the Agent may from time to time reasonably request.

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SECTION 5.02. Negative Covenants

So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will not:

(a) Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien on or with respect to any of its properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive income (except by a Subsidiary in favor of the Borrower or any of its Subsidiaries), other than:

(i) Permitted Liens,

(ii) purchase money Liens (including capital leases) upon or in any real or personal property (tangible or intangible) acquired or held by the Borrower or any Subsidiary to secure the purchase price of such property or to secure Debt incurred solely for the purpose of financing the acquisition, construction or improvement of such property, or Liens existing on such property at the time of its acquisition (other than any such Liens created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover any properties of any character other than the property being acquired, constructed or improved and the proceeds thereof and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or replaced and the proceeds thereof, provided, further that the aggregate principal amount of the indebtedness secured by the Liens referred to in this clause (ii) shall not exceed 100% of the fair market value of property so acquired at the time of acquisition.

(iii) the Liens existing on the Effective Date and permitted under the Existing Credit Agreement,

(iv) Liens on property of a Person existing at the time such Person is merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower or on assets acquired by the Borrower or any Subsidiary of the Borrower existing at the time that such assets are acquired; provided that such Liens were not created in contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person so merged into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary, and proceeds thereof,

(v) possessory rights of customers of the Borrower and its Subsidiaries in Equipment for Resale arising under leases, bailment arrangements and rental agreements entered into in the ordinary course of business of the Borrower or such Subsidiary,

(vi) Liens upon specific items of Inventory and the proceeds thereof securing the obligations of the Borrower or any of its Subsidiaries in respect of bankers’ acceptances issued or created for the account of the Borrower or such Subsidiary to facilitate the purchase, shipment or storage of such Inventory,

(vii) Liens arising in connection with trade letters of credit issued to secure the purchase of Inventory in the ordinary course of business of the Borrower and its Subsidiaries, provided that such Liens shall cover only the documents in respect of which such letters of credit were issued, the goods covered thereby and the insurance proceeds of such goods,

(viii) Liens arising out of judgments or awards (other than any judgment described in Section 6.01(f) or (g) hereof and constituting an Event of Default thereunder) in respect of which, within 30 days after the imposition thereof, the Borrower or any of its Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review and shall have secured a subsisting stay of execution pending such appeal or proceedings for review, provided it shall have set aside on its books adequate reserves, in accordance with GAAP, with respect to such judgment or award,

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(ix) security and other deposits made by the Borrower or any Subsidiary of the Borrower under the terms of any lease or sublease of property entered into by the Borrower or any such Subsidiary in the ordinary course of business,

(x) voluntary Liens in favor of the PBGC arising in connection with any insufficiency resulting from the actions of, and with respect to any Plan of the Borrower or any ERISA Affiliate, securing obligations not exceeding $75,000,000,

(xi) other Liens securing Debt in an aggregate principal amount not to exceed $75,000,000 at any time outstanding,

(xii) sales or discounts in the ordinary course of business by the Borrower or any Subsidiary of the Borrower of customer leases or other receivables for cash in an amount not less than the fair market value thereof (after taking into account customary reserves for losses, yield protection, fees and similar matters), and

(xiii) the replacement, extension or renewal of any Lien permitted by clause (iii) or (iv) above upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase in the amount by more than the sum of accrued and unpaid interest and normal and customary costs, fees and expenses payable in connection therewith or change in any direct or contingent obligor) of the Debt secured thereby.

(b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to, any Person, or permit any of its Subsidiaries to do so, except that (i) any Subsidiary of the Borrower may merge or consolidate with or into, or dispose of assets to, any other Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may merge into or dispose of assets to the Borrower, (iii) the Borrower may merge with any other Person so long as the Borrower is the surviving corporation, and (iv) any Subsidiary of the Borrower may merge into or dispose of its assets to any other Person so long as such merger or disposition does not involve all or substantially all of the assets of the Borrower and its Subsidiaries taken as a whole; provided, in each case, that no Default shall have occurred and be continuing at the time of such proposed transaction or would result therefrom. Any voluntary liquidation, dissolution or winding up of any Subsidiary of the Borrower shall be deemed to be a merger for purposes of this subsection.

(c) Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any significant change in accounting policies or reporting practices, except as required or permitted by generally accepted accounting principles or any applicable law, rule or regulation, except that any Subsidiary may change its fiscal year to that of the Borrower.

(d) Change in Nature of Business. Permit the material business activities, taken as a whole, of the Borrower and its Subsidiaries to be altered in any substantial and material way.

(e) Speculative Transactions. Engage, or permit any of its Subsidiaries to engage, in any transaction involving commodity options or futures contracts or any similar speculative transactions except to hedge the exposure of the Borrower or its Subsidiaries to the underlying commodity, interest rate or foreign currency.

(f) Subsidiary Debt. Permit its Subsidiaries to incur Debt to a Person other than the Borrower or any of its Subsidiaries in excess of $250,000,000, in the aggregate, at any time outstanding.

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SECTION 5.03. Financial Covenants. So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will:

(a) Leverage Ratio. Maintain, at the end of each fiscal quarter of the Borrower, a ratio of Consolidated Funded Debt as of such date to Consolidated EBITDA for the four fiscal quarters ending on such date of not greater than 3.25:1.00.

(b) Interest Coverage Ratio. Maintain, at the end of each fiscal quarter of the Borrower, a ratio of Consolidated EBITDA to Interest Expense of not less than 3.5:1.0 for the four fiscal quarters ending on such date.

ARTICLE VI

EVENTS OF DEFAULT

SECTION 6.01. Events of Default. If any of the following events (“Events of Default”) shall occur and be continuing:

(a) The Borrower shall fail to pay any principal of any Advance when the same becomes due and payable; or the Borrower shall fail to pay any interest on any Advance or make any other payment of fees or other amounts payable under this Agreement or any Note within three Business Days after the same becomes due and payable; or

(b) Any representation or warranty made or deemed made by the Borrower herein or by the Borrower (or any of its officers) in connection with this Agreement shall prove to have been incorrect in any material respect when made or deemed made; or

(c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(d), (e) or (i)(iii), 5.02 or 5.03, (ii) the Borrower shall fail to perform or observe any other term, covenant or agreement contained in Section 5.01(i) (other than clause (iii) thereof) if such failure shall remain unremedied for three Business Days after the earlier of (A) knowledge thereof by any Specified Officer and (B) the date on which written notice thereof shall have been given to the Borrower by the Agent or any Lender; or (iii) the Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed if such failure shall remain unremedied for 30 days after the earlier of (A) knowledge thereof by any Specified Officer and (B) the date on which written notice thereof shall have been given to the Borrower by the Agent or any Lender; or

(d) The Borrower or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal or notional amount of at least $75,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Borrower or such Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, and as a result thereof the maturity of such Debt is accelerated; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof (except for (x) any secured debt that becomes due by reason of the sale or other disposition of the asset securing such debt provided such debt is repaid at the time of such sale or disposition and (y) any debt of a Subsidiary that becomes due by reason of the sale or other disposition of such Subsidiary provided such debt is repaid at the time of such sale or disposition); or

(e) The Borrower or any of its Significant Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower or any of its Significant Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors (except for any such

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liquidation or winding up of any Significant Subsidiary of the Borrower permitted under this Agreement), or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 30 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Borrower or any of its Significant Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or

(f) Judgments or orders for the payment of money in excess of $75,000,000 in the aggregate shall be rendered against the Borrower or any of its Significant Subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this Section 6.01(f) to the extent that and for so long as (i) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii) such insurer, which shall be rated at least “A” by A.M. Best Company, has been notified of, and has not declined the claim made for payment of, the amount of such judgment or order; or

(g) Any non-monetary judgment or order shall be rendered against the Borrower or any of its Subsidiaries that is reasonably likely to have a Material Adverse Effect, and there shall be any period of 10 consecutive Business Days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or

(h) (i) Any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting Stock of the Borrower (or other securities convertible into such Voting Stock) representing 40% or more of the combined voting power of all Voting Stock of the Borrower; or (ii) during any period of up to 12 consecutive months, commencing before or after the date of this Agreement, individuals who at the beginning of such 12-month period were directors of the Borrower shall cease for any reason to constitute a majority of the board of directors of the Borrower; or (iii) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Borrower; or

(i) The Borrower or any of its ERISA Affiliates shall incur, or, in the reasonable opinion of the Required Lenders, shall be reasonably likely to incur liability in excess of $75,000,000 in the aggregate as a result of one or more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination of a Multiemployer Plan; or

(j) The Borrower asserts, or a final non-appealable determination is rendered by a court of competent jurisdiction to the effect, that this Agreement or any of the Notes is invalid or unenforceable.

then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the Advances, all such interest and all

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such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.

ARTICLE VII

THE AGENT

SECTION 7.01. Authorization and Action. Each Lender hereby appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of the Notes), the Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Agent shall not be required to take any action that exposes the Agent to personal liability or that is contrary to this Agreement or applicable law. The Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement.

SECTION 7.02. Agent’s Reliance, Etc. Neither the Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Agent: (i) may treat the payee of any Note as the holder thereof until the Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee of such Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Borrower or the existence at any time of any Default or to inspect the property (including the books and records) of the Borrower; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by facsimile transmission or electronic mail message) believed by it to be genuine and signed or sent by the proper party or parties.

SECTION 7.03. CNAI and Affiliates. With respect to its Commitment, the Advances made by it and the Note issued to it, CNAI shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include CNAI in its individual capacity. CNAI and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, the Borrower, any of its Subsidiaries and any Person who may do business with or own securities of the Borrower or any such Subsidiary, all as if CNAI were not the Agent and without any duty to account therefor to the Lenders. The Agent shall have no duty to disclose any information obtained or received by it or any of its Affiliates relating to the Borrower or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as Agent.

SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.

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SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent (to the extent not reimbursed by the Borrower), ratably according to the respective principal amounts of the Notes then held by each of them (or if no Notes are at the time outstanding or if any Notes are held by Persons that are not Lenders, ratably according to the respective amounts of their Commitments), from and against any and all liabilities, obligations, claims, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Agent under this Agreement (collectively, the “Indemnified Costs”), provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or proceeding is brought by the Agent, any Lender or a third party.

SECTION 7.06. Successor Agent. The Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower and may be removed at any time with or without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Agent, provided that the appointment of any such successor Agent shall be subject to the consent of the Borrower (not to be unreasonably withheld or delayed) so long as no Event of Default has occurred and is continuing. If no successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Agent’s resignation or removal hereunder as Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.

ARTICLE VIII

MISCELLANEOUS

SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or the Notes, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all the Lenders, do any of the following: (a) waive any of the conditions specified in Section 3.01, (b) except as otherwise provided herein, increase the Commitments of the Lenders or any Lender’s percentage thereof, (c) reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, (d) except as otherwise provided herein, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Notes, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder or (f) amend this Section 8.01; and provided, further that (x) no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Agent under this Agreement or any Note and (y) Section 2.15 may be amended or waived to permit the proceeds of the Advances to be used for working capital and other general corporate purposes of the Borrower and any of its Subsidiaries with the consent of the Agent.

SECTION 8.02. Notices, Etc. (a) Except as set forth in Section 8.02(d) below, all notices, requests, demands, and other communications relating this Agreement which any party is required or desires to give

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to the other shall be in writing, shall be sent by United States mail, commercial delivery service, facsimile transmission or electronic mail and shall be addressed to the party to receive the notice as specified in this Section. Any party may change its address for notices by sending a Notice pursuant to this Section 8.02.

(b) Notices to be sent to the Borrower via United States mail, delivery service or facsimile transmission shall be addressed to the Borrower at its address at P.O. Box 3100, 4300 N. Harbor Blvd., Fullerton, CA 92834-3100, Attention: Treasurer (Facsimile no.: (714) 773-6840), with a copy to the same address, Attention: General Counsel (Facsimile no.: (714) 773-7936). Notices to be delivered to any Initial Lender shall be addressed to the Initial Lender at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender; and if to the Agent, at its address at 2 Penns Way, Suite 200, New Castle, Delaware 19720, Attention: Bank Loan Syndications (Facsimile no.: (212) 994-0961). Each party shall designate an address for the delivery of electronic mail messages at the written request of any other party.

(c) Notices sent by United States Mail shall be sent by first class mail, registered or certified, postage prepaid, and properly addressed and shall be deemed to have been given on the date actually received or the fifth day after mailing, whichever is earlier. Notices sent by commercial delivery service shall be sent using a service that provides traceability of packages and shall be deemed given on the date actually received or on the third business day after the date they are picked up by the delivery service. Notices given by facsimile transmission shall be deemed given on the next business day after the date transmitted, provided a confirming signed original is mailed to the party to whom the notice is addressed on the date it is transmitted. Electronic mail messages shall be deemed given to the addressee of such message only upon receipt of a reply electronic mail message confirming receipt, except that in the case of any Communications (as defined in clause (d) below) delivered in accordance with clause (d) below, notification from Interlinks that such Communications have been posted to Intralinks shall serve as a reply electronic mail message for purposes of this clause (c); provided, however, that an automated “out of office” or similar reply message shall not be deemed to confirm receipt.

(d) So long as CNAI or any of its Affiliates is the Agent, materials required to be delivered pursuant to Section 5.01(i)(i), (ii) and (iv) shall be delivered to the Agent in an electronic medium in a format acceptable to the Agent and the Lenders by e-mail at oploanswebadmin@citigroup.com, and such delivery shall satisfy the obligations of the Borrower to deliver such materials to the Lenders. The Borrower agrees that the Agent may make such materials, and with the prior consent of the Borrower any other written information, documents, instruments and other material relating to the Borrower, any of its Subsidiaries or any other materials or matters relating to this Agreement, the Notes or any of the transactions contemplated hereby (collectively, the “Communications”) available to the Lenders by posting such notices on Intralinks or a substantially similar electronic system (the “Platform”). The Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Agent or any of its Affiliates in connection with the Platform.

(e) Each Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying that any Communications have been posted to the Platform shall constitute effective delivery of such information, documents or other materials to such Lender for purposes of this Agreement; provided that if requested by any Lender the Agent shall deliver a copy of the Communications to such Lender by email or telecopier. Each Lender agrees (i) to notify the Agent in writing of such Lender’s e-mail address to which a Notice may be sent by electronic transmission (including by electronic communication) on or before the date such Lender becomes a party to this Agreement (and from time to time thereafter to ensure that the Agent has on record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address.

SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor

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shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Arrangers in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation, (i) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses and (ii) the reasonable fees and expenses of counsel for the Agent and the Arrangers with respect thereto and with respect to advising the Agent as to its rights and responsibilities under this Agreement. The Borrower further agrees to pay on demand all costs and expenses of the Agent and the Lenders, if any (including, without limitation, reasonable counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 8.04(a).

(b) The Borrower agrees to indemnify and hold harmless the Agent, each Arranger and each Lender and each of their Affiliates and their officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and against any and all liabilities, obligations, claims, damages, losses, penalties, actions, judgments, suits, costs, disbursements and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances or (ii) the actual or alleged presence of Hazardous Materials on any property of the Borrower or any of its Subsidiaries or any Environmental Action relating in any way to the Borrower or any of its Subsidiaries, except to the extent such liability, obligation, claim, damage, loss, penalty, action, judgment, suit, cost, disbursement or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct, in each case regardless of whether the event giving rise to such liability shall have occurred prior to, on or after the date hereof. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 8.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, its directors, equityholders or creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. Notwithstanding any other provisions to the contrary herein, no obligation to indemnify and hold harmless any Indemnified Party under this Section arises from a failure by such Indemnified Party to comply with any laws, regulations, rules or orders that may apply to its business, or a failure by such Indemnified Party to possess the capacity to participate in the transactions contemplated by this Agreement or to take all actions necessary to authorize its participation in such transactions. The Borrower also agrees not to assert any claim for special, indirect, consequential or punitive damages against the Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability arising out of or otherwise relating to the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.

(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.07(d) or (e), 2.09 or 2.11, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, the Borrower shall, within seven days following demand by such Lender accompanied by a calculation in reasonable detail of the amount demanded (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.

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(d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in Sections 2.10, 2.13 and 8.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes.

SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the acceleration of the Advances pursuant to the provisions of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement and the Note held by such Lender, whether or not such Lender shall have made any demand under this Agreement or such Note and although such obligations may be unmatured. Each Lender agrees promptly to notify the Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Lender and its Affiliates may have.

SECTION 8.06. Binding Effect. This Agreement shall become effective (other than Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.

SECTION 8.07. Assignments and Participations. (a) Each Lender may assign to one or more Persons all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (other than its obligations under Section 7.05 to the extent any claim thereunder relates to an event arising prior to such assignment) (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this

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Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.

(c) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.

(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.

(e) Each Lender may sell participations to one or more banks or other entities (other than the Borrower or any of its Affiliates) approved by the Borrower (unless an Event of Default has occurred and is continuing at the time any participation is effected), such approval not to be unreasonably withheld or delayed (it being understood that any objection by the Borrower to any Person reasonably considered by the Borrower to be a competitor, or an Affiliate of a competitor, of the Borrower shall be deemed to be not unreasonable); in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.

(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, in each case, that is an Eligible Assignee or has otherwise been approved by the Borrower, or an SPC, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant or SPC shall agree to preserve

34

the confidentiality of any Confidential Information relating to the Borrower received by it from such Lender in accordance with Section 8.08.

(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and the Note held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.

(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle sponsored, administered or managed by the Granting Lender (a “SPC”), identified as such in writing from time to time by the Granting Lender to the Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) no SPC shall, solely by reason of any such grant or any Advance made by such SPC thereunder, be deemed to be a Lender hereunder, and (iii) the Granting Lender shall not be relieved of any of its obligations under this Agreement by reason of any such grant and, if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof with respect to any claim arising out of, or relating to, this Agreement or any Note or the performance or non-performance of any obligation thereunder. In addition, notwithstanding anything to the contrary contained in this Section 8.07(h), any SPC may (A) with notice to, but without (except as provided below) the prior written consent of, the Borrower and the Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Lender or, with the consent of the Borrower and the Agent, to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (B) disclose on a confidential basis (subject to the same terms as set forth in Section 8.08 with respect to the disclosure of any Confidential Information to assignees and participants) any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. For the avoidance of doubt, notwithstanding anything in this Section 8.07(h) to the contrary, no SPC nor any institution providing liquidity and/or credit support to, or for the account of, such SPC shall be entitled to the benefits of a Lender under this Agreement, including, but not limited to, the benefits under Sections 2.10 or 2.13 or any indemnification provisions, and the Granting Lender shall for all purposes, including any consent, approval or waiver hereunder, continue to be the Lender entitled to all the rights and benefits of a Lender under this Agreement, and bound by the obligations of a Lender hereunder, provided that in any case any such SPC (or any assignee thereof) shall be entitled to receive payments due in respect of any Advance made by such SPC hereunder. The Granting Lender hereby agrees to indemnify and hold harmless the Borrower from any additional cost or expense incurred by the Borrower in connection with the transactions contemplated by this Section 8.07(h) with respect to any grant made by such Granting Lender to any SPC. This section may not be amended without the written consent of the SPC.

SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall disclose any Confidential Information to any other Person without the consent of the Borrower, other than (a) to the Agent’s or such Lender’s Affiliates and their officers, directors, employees, agents and advisors and, as contemplated by Section 8.07(f), to actual or prospective assignees and participants and SPCs, and then only on a confidential basis, (b) as required by any law, rule or regulation or judicial process; provided that unless specifically prohibited by applicable law or court order each Lender and the Agent shall use reasonable efforts to endeavor to notify the Borrower of any request of any governmental authority (other than any such request in connection with an examination of the financial condition or operation of such Lender or the Agent) for disclosure of any confidential information prior to disclosure thereof and (c) as requested or required by any state, federal or foreign authority or examiner regulating banks or banking. Before the Agent or any Lender discloses any Confidential Information to

35

any actual or prospective assignees and participants or SPCs, the Agent or Lender wishing to disclose the Confidential Information shall obtain the written agreement of the proposed recipient to keep the information confidential. Each such written agreement shall state that it is for the benefit of and may be enforced by Borrower and a copy of the written agreement signed by the proposed recipient shall be sent to Borrower.

SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 8.10. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction.

(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

SECTION 8.12. Patriot Act Notice. Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Agent, as applicable, to identify the Borrower in accordance with the Patriot Act. The Borrower shall provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Agent or any Lenders in order to assist the Agent and the Lenders in maintaining compliance with the Patriot Act.

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SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the Notes or the actions of the Agent or any Lender in the negotiation, administration, performance or enforcement thereof.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

BECKMAN COULTER, INC., as Borrower
By	/s/ ROGER B. PLOTKIN
	Name: Roger B. Plotkin
	Title:

	CITICORP NORTH AMERICA, INC., as Administrative Agent
	By	/s/ J. GREGORY DAVIS
		Name: J. Gregory Davis
		Title: Authorized Signatory
Initial Lenders
Commitment
[Confidential Information Deleted]	CITICORP NORTH AMERICA, INC.
	By	/s/ J. GREGORY DAVIS
		Name: J. Gregory Davis
		Title: Authorized Signatory
[Confidential Information Deleted]	BANC OF AMERICA BRIDGE LLC
	By	/s/ JAMES W. FORD
		Name: James W. Ford
		Title: Senior Vice President

$185,000,000.00                                     Total of the Commitments

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EX-15

Exhibit 15

REVIEW REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Stockholders and Board of Directors

Beckman Coulter, Inc.:

We have reviewed the accompanying condensed consolidated balance sheet of Beckman Coulter, Inc. and subsidiaries as of September 30, 2006, and the related condensed consolidated statements of operations for the three-month and nine-month periods ended September 30, 2006 and 2005, and the related condensed consolidated statements of cash flows for the nine month periods ended September 30, 2006 and 2005. These condensed consolidated financial statements are the responsibility of the Company’s management.

We conducted our reviews in accordance with the standards of the Public Company Accounting Oversight Board (United States). A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States), the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.

Based on our reviews, we are not aware of any material modifications that should be made to the condensed consolidated financial statements referred to above for them to be in conformity with U.S. generally accepted accounting principles.

We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheet of Beckman Coulter, Inc. and subsidiaries as of December 31, 2005, and the related consolidated statements of operations, stockholders’ equity and comprehensive income, and cash flows for the year then ended (not presented herein); and in our report dated February 22, 2006, we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the information set forth in the accompanying condensed consolidated balance sheet as of December 31, 2005, is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.

/s/ KPMG LLP

Costa Mesa, California

November 2, 2006

EX-15.1

Exhibit 15.1

November 2, 2006

Beckman Coulter, Inc.

4300 N. Harbor Boulevard

Fullerton, CA 92834-3100

Re: Registration Statement No. 333-114457, 333-100904, 333-24851, 333-37429, 33-31573, 33-41519, 33-51506, 33-66990, 33-66988, 333-69291, 333-59099, 333-69249, 333-69251, 333-72896 and 333-72892

With respect to the subject registration statements, we acknowledge our awareness of the use therein of our report dated November 2, 2006, related to our review of interim financial information.

Pursuant to Rule 436 under the Securities Act of 1933 (the “Act”), such report is not considered part of a registration statement prepared or certified by an independent registered public accounting firm, or a report prepared or certified by an independent registered public accounting firm within the meaning of Sections 7 and 11 of the Act.

/s/ KPMG LLP

Costa Mesa, California

EX-31

Exhibit 31

Rule 13a-14(a)/15d-14(a) Certifications

Chief Executive Officer

I, Scott Garrett, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Beckman Coulter, Inc.

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 1, 2006	/s/ Scott Garrett
	Scott Garrett Chief Executive Officer

Chief Financial Officer

I, Charles P. Slacik, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Beckman Coulter, Inc.

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 1, 2006	/s/ Charles P. Slacik
	Charles P. Slacik Senior Vice President & Chief Financial Officer

EX-32

Exhibit 32

Section 1350 Certifications

Chief Executive Officer

Pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Beckman Coulter, Inc. (the “Company”) hereby certifies, to such officer’s knowledge, that:

(i) the accompanying quarterly Report on Form 10-Q of the Company for the period ended September 30, 2006 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

The foregoing certification is being furnished solely to accompany the Report pursuant to 18 U.S.C. § 1350, and is not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

Date: November 1, 2006	/s/ Scott Garrett
	Scott Garrett Chief Executive Officer

Chief Financial Officer

Pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Beckman Coulter, Inc. (the “Company”) hereby certifies, to such officer’s knowledge, that:

(i) the accompanying quarterly Report on Form 10-Q of the Company for the period ended September 30, 2006 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

The foregoing certification is being furnished solely to accompany the Report pursuant to 18 U.S.C. § 1350, and is not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

Date: November 1, 2006	/s/ Charles P. Slacik
	Charles P. Slacik Senior Vice President & Chief Financial Officer