<PAGE>
As filed with the Securities and Exchange Commission on March 29, 2000
Registration No. 333-96317
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 4
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
LUMINEX CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 8731 74-2747608
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
12212 Technology Boulevard
Austin, Texas 78727
(512) 219-8020
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------
Mark B. Chandler, Ph.D.
Chairman and Chief Executive Officer
Luminex Corporation
12212 Technology Boulevard
Austin, Texas 78727
(512) 219-8020
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
<TABLE>
<S> <C>
Craig N. Adams, Esq. Donald J. Murray, Esq.
T. Christopher Pledger, Esq. Dewey Ballantine LLP
Thompson & Knight LLP 1301 Avenue of the Americas
98 San Jacinto Boulevard, Suite 1200 New York, New York 10019
Austin, Texas 78701 (212) 259-8000
(512) 469-6100
</TABLE>
----------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Amendment No. 4 to Registration Statement on Form S-1 (333-96317) is being
filed solely for the purpose of revising Item 13 and refiling Exhibit 10.8
hereto.
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. Other Expenses of Issuance and Distribution
The following is an itemized statement of the amounts of all expenses payable
by the Registrant in connection with the registration of the common stock
offered hereby (estimated except for the Registration Fee, NASD Filing Fee and
Nasdaq National Market listing fee), other than underwriting discounts and
commissions:
<TABLE>
<S> <C>
Registration Fee--Securities and Exchange Commission................ $ 26,400
NASD Filing Fee..................................................... 10,500
Nasdaq National Market listing fee.................................. 95,000
Blue Sky fees and expenses.......................................... 5,000
Accountants' fees and expenses...................................... 180,000
Legal fees and expenses............................................. 250,000
Printing and engraving expenses..................................... 125,000
Transfer agent and registrar fees................................... 3,600
Miscellaneous....................................................... 404,500
----------
Total............................................................. $1,100,000
==========
</TABLE>
ITEM 14. Indemnification of Directors and Officers
Pursuant to Sections 102(b)(7) and 145 of the Delaware General Corporation Law,
our Restated Certificate of Incorporation and Amended and Restated Bylaws
include provisions eliminating or limiting the personal liability of the
members of our board of directors to our company and our stockholders for
monetary damages for breach of fiduciary duty as a director. This does not
apply for any breach of a director's duty of loyalty to our company or our
stockholders, for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, for paying an
unlawful dividend or approving an illegal stock repurchase, or for any
transaction from which a director derived an improper personal benefit.
Our Restated Certificate of Incorporation and Amended and Restated Bylaws also
provide that we have the power to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of our
company) by reason of the fact that the person is or was a director, officer,
employee or agent of any corporation, partnership, joint venture, trust or
other enterprise, against any and all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement and reasonably incurred in
connection with such action, suit or proceeding. Our power to indemnify applies
only if the person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of our corporation, and with
respect to any criminal action or proceeding, had no reasonable cause to
believe the person's conduct was unlawful.
In the case of an action by or in the right of our company, no indemnification
may be made with respect to any claim, issue or matter as to which such person
shall have been adjudged to be liable to us unless and only to the extent that
the court in which such action or suit was brought shall determine that despite
the adjudication of liability such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper. To the extent a
director or officer of our company has been successful in the defense of any
action, suit or proceeding referred to above or in the defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him in connection
therewith.
II-1
<PAGE>
We have the power to purchase and maintain insurance on behalf of any person
covering any liability incurred by such person in his capacity as a director,
officer, employee or agent of our company, or arising out of his status as
such, whether or not we would have the power to indemnify him against such
liability.
The foregoing summaries are necessarily subject to the complete text of the
statute, Amended and Restated Bylaws and Restated Certificate of Incorporation
referred to above and are qualified in their entirety by reference thereto.
ITEM 15. Recent Sales of Unregistered Securities
A. In the three years preceding the filing of this registration statement, the
Registrant from time to time has granted stock options to employees and
consultants in reliance upon exemption from registration pursuant to either
(1) Section 4(2) of the Securities Act of 1933 or (2) Rule 701 promulgated
under the Securities Act of 1933. The following table sets forth certain
information regarding such grants:
<TABLE>
<CAPTION>
Number Exercise
of shares prices
- --------------------------------------------------------------------------------
<S> <C> <C>
January 1, 1997 to December 31, 1997..................... 1,279,080 $1.96
January 1, 1998 to December 31, 1998..................... 574,260 $2.94-$3.92
January 1, 1999 to December 31, 1999..................... 1,666,884 $1.96-$5.88
January 1, 2000 to March 21, 2000........................ 1,033,500 $5.88-$18.00
</TABLE>
For additional information concerning these transactions, please see
"Management -- Employee benefit plans" in the prospectus included in this
registration statement.
B. Set forth in chronological order is information regarding all securities
sold by the Registrant in the three years preceding the filing of this
registration statement.
(1) Since January 1, 1997, the Registrant has granted to employees,
directors and consultants options to purchase an aggregate of 4,553,724
shares of Common Stock under its 1996 Stock Option Plan and 2000 Long-
Term Incentive Plan at a weighted average exercise price of $6.11.
(2) On April 2, 1997, the Registrant issued a warrant to purchase 535,500
shares of common stock to Southcoast Capital Corporation or its
permitted assigns for an aggregate purchase price of $1,050,000.
(3) In April 1997, the Registrant issued 150,000 shares of its Series B
convertible preferred stock to individuals and entities for an
aggregate purchase price of $6,000,000.
(4) In July 1999, the Registrant issued 151,571 shares of its Series C
convertible preferred stock to individuals and entities for an
aggregate purchase price of $12,125,680.
(5) In December 1999, the Registrant issued 57,538 shares of its Series D
convertible preferred stock to individuals and entities for an
aggregate price of $6,904,560.
(6) In December 1999, the Registrant issued 25,000 shares of our Series E
convertible preferred stock to an entity for an aggregate purchase
price of $3,000,000.
The issuances to employees, directors and consultants described in (1) were
deemed to be exempt from registration under Rule 701 promulgated under Section
3(b) of the Securities Act of 1933 as transactions by an issuer not involving a
public offering or transactions pursuant to compensatory benefit plans and
contracts relating to compensation. The sales described in (2) through (6) were
made only to "accredited investors" and were deemed to be exempt from
registration under the Securities Act of 1933 in reliance on Section 4(2) of
the Securities Act, or Regulation D promulgated thereunder.
II-2
<PAGE>
Other than the placement agent utilized in connection with sales of our Series
B and C preferred stock, no underwriters were involved in the foregoing sales
of securities. Each share of the Registrant's convertible preferred stock
listed above will convert automatically into 20.4 shares of the Registrant's
common stock upon the effectiveness of this registration statement.
ITEM 16. Exhibits and Financial Statement Schedules
(a)Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------------------------------------------------------------------------------
<C> <S>
1.1++ Form of Underwriting Agreement
3.1++ Form of Restated Certificate of Incorporation of the Registrant
3.2++ Amended and Restated Bylaws of the Registrant
4.1++ Form of Common Stock Certificate
4.2++ Warrant for the Purchase of Shares of Common Stock dated as of April
2, 1997 by and between the Registrant and Southcoast Capital
Corporation.
5.1++ Opinion of Thompson & Knight L.L.P.
10.1++ 1996 Stock Option Plan of the Registrant, as amended.
10.2+++ Form of Stock Option Agreement of the Registrant.
10.3++ Form of Incentive Stock Option Agreement of the Registrant.
10.4++ 2000 Long-Term Incentive Plan of the Registrant.
10.5++ Form of Stock Option Award Agreement of the Registrant.
10.6++ Reserved
10.7+++ Development and Supply Agreement dated as of March 19, 1999 by and
between the Registrant and Bio-Rad Laboratories, Inc.
10.8+ Amendment to Development and Supply Agreement dated as of January 13,
2000 by and between the Registrant and Bio-Rad Laboratories, Inc.
10.9+++ Agreement for Electronic Manufacturing Services dated as of January 1,
2000 by and between the Registrant and Sanmina Corporation.
10.10++ Consultant Agreement dated as of June 1, 1999 by and between the
Registrant and A. Sidney Alpert.
10.11++ Amendment to Consultant Agreement dated as of November 1, 1999 by and
between the Registrant and A. Sidney Alpert.
10.12++ Standard Commercial Lease Agreement dated as of August 21, 1989 by and
between the Registrant and Aetna Life Insurance Company, as amended,
for facilities situated at 12112 Technology Boulevard, Austin, Texas
78727.
10.13++ Sublease Agreement dated as of December 20, 1999 by and between the
Registrant and American Innovations, Ltd., for facilities situated at
12112 Technology Boulevard, Austin, Texas 78727.
10.14++ First Amendment to Sublease Agreement dated as of December 20, 1999 by
and between the Registrant and American Innovations, Ltd., for
facilities situated at 12112 Technology Boulevard, Austin, Texas
78727.
10.15++ Form of Employment Agreement between the Registrant and each of Mark B
Chandler, Ph.D., Michael L. Bengtson, Ralph L. McDade, M.D., Van S.
Chandler, Michael D. Spain, M.D., James L. Persky and Randel S.
Marfin.
23.1++ Consent of Thompson & Knight L.L.P. (included as part of Exhibit 5.1
hereto)
23.2++ Consent of Independent Auditors
24.1++ Power of Attorney (included on signature page of the Registration
Statement hereto)
24.2++ Power of Attorney of William L. Roper, M.D., M.P.H.
27.1++ Financial Data Schedule
</TABLE>
- --------
* To be filed by amendment.
+ Confidential treatment requested for certain portions of this Exhibit
pursuant to Rule 406 promulgated under the Securities Act, which portions
are omitted and filed separately with the Securities and Exchange
Commission.
++ Previously filed.
II-3
<PAGE>
(b)Financial Statement Schedules
None.
ITEM 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the underwriters, at
the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering
thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has
duly caused this Amendment No. 4 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Austin,
State of Texas, on March 29, 2000.
Luminex Corporation
/s/ Mark B. Chandler, Ph.D.
By___________________________________
Mark B. Chandler, Ph.D.
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 4 to Registration Statement has been signed by the following
persons on March 29, 2000 in the capacities indicated
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Mark B. Chandler, Ph.D. Chairman of the Board and March 29, 2000
____________________________________ Chief Executive Officer
Mark B. Chandler, Ph.D. (Principal Executive
Officer)
* Vice President, Treasurer
____________________________________ and Chief Financial Officer
James L. Persky (Principal Financial
Officer)
* Controller (Principal
____________________________________ Accounting Officer)
Harriss T. Currie
* Director
____________________________________
G. Walter Loewenbaum
* Director
____________________________________
A. Sidney Alpert
* Director
____________________________________
Robert J. Cresci
* Director
____________________________________
Laurence E. Hirsch
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Director
____________________________________
Jim D. Kever
* Director
____________________________________
Fred C. Goad, Jr.
* Director
____________________________________
John E. Koerner, III
* Director
____________________________________
William L. Roper, M.D., M.P.H.
*By:/s/ Mark B. Chandler, Ph.D.
--------------------------------
Mark B. Chandler, Ph.D.
Attorney-in-fact
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------------------------------------------------------------------------------
<C> <S>
1.1++ Form of Underwriting Agreement
3.1++ Form of Restated Certificate of Incorporation of the Registrant
3.2++ Amended and Restated Bylaws of the Registrant
4.1++ Form of Common Stock Certificate
4.2++ Warrant for the Purchase of Shares of Common Stock dated as of April
2, 1997 by and between the Registrant and Southcoast Capital
Corporation.
5.1++ Opinion of Thompson & Knight L.L.P.
10.1++ 1996 Stock Option Plan of the Registrant, as amended.
10.2+++ Form of Stock Option Agreement of the Registrant.
10.3++ Form of Incentive Stock Option Agreement of the Registrant.
10.4++ 2000 Long-Term Incentive Plan of the Registrant.
10.5++ Form of Stock Option Award Agreement of the Registrant.
10.6++ Reserved
10.7+++ Development and Supply Agreement dated as of March 19, 1999 by and
between the Registrant and Bio-Rad Laboratories, Inc.
10.8+ Amendment to Development and Supply Agreement dated as of January 13,
2000 by and between the Registrant and Bio-Rad Laboratories, Inc.
10.9+++ Agreement for Electronic Manufacturing Services dated as of January 1,
2000 by and between the Registrant and Sanmina Corporation.
10.10++ Consultant Agreement dated as of June 1, 1999 by and between the
Registrant and A. Sidney Alpert.
10.11++ Amendment to Consultant Agreement dated as of November 1, 1999 by and
between the Registrant and A. Sidney Alpert.
10.12++ Standard Commercial Lease Agreement dated as of August 21, 1989 by and
between the Registrant and Aetna Life Insurance Company, as amended,
for facilities situated at 12112 Technology Boulevard, Austin, Texas
78727.
10.13++ Sublease Agreement dated as of December 20, 1999 by and between the
Registrant and American Innovations, Ltd., for facilities situated at
12112 Technology Boulevard, Austin, Texas 78727.
10.14++ First Amendment to Sublease Agreement dated as of December 20, 1999 by
and between the Registrant and American Innovations, Ltd., for
facilities situated at 12112 Technology Boulevard, Austin, Texas
78727.
10.15++ Form of Employment Agreement between the Registrant and each of Mark
B. Chandler, M.D., Michael L. Bengtson, Ralph L. McDade, M.D., Van S.
Chandler, Michael D. Spain, M.D., James L. Persky and Randel S.
Marfin.
23.1++ Consent of Thompson & Knight L.L.P. (included as part of Exhibit 5.1
hereto)
23.2++ Consent of Independent Auditors
24.1++ Power of Attorney (included on signature page of the Registration
Statement hereto)
24.2++ Power of Attorney of William L. Roper, M.D., M.P.H.
27.1++ Financial Data Schedule
</TABLE>
- --------
* To be filed by amendment.
+ Confidential treatment requested for certain portions of this Exhibit
pursuant to Rule 406 promulgated under the Securities Act, which portions
are omitted and filed separately with the Securities and Exchange
Commission.
++ Previously filed.
<PAGE>
EXHIBIT 10.8
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
AMENDMENT TO DEVELOPMENT AND SUPPLY AGREEMENT
This Amendment to Development and Supply Agreement ("Amendment"), effective
as of January 13, 2000 (the "Amendment Effective Date"), by and between Luminex
Corporation, a Delaware corporation with principal offices at 12212 Technology
Boulevard, Austin, Texas 79727 ("LUMINEX") and Bio-Rad Laboratories, Inc., a
Delaware corporation with principal offices at 1000 Alfired Nobel Drive,
Hercules, California 94547 ("BIO-RAD") (LUMINEX and BIO-RAD collectively, the
"Parties"), amends that certain Development and Supply Agreement by and between
the Parties effective as of March 19, 1999 (the "Agreement").
WHEREAS, the Parties desire to amend the Agreement as set forth herein
below.
NOW, THEREFORE, the Parties agree as follows:
AMENDMENT. This Amendment hereby amends the Agreement to incorporate the
terms and conditions set forth in this Amendment. The relationship of the
Parties shall continue to be governed by the terms and conditions of the
Agreement, as amended herein; and in the event that there is any conflict
between the terms and conditions of the Agreement and this Amendment, the term
and conditions of this Amendment shall control. As used in this Amendment, all
capitalized terms shall have the meanings defined for such terms in this
Amendment or, if not defined in the Amendment, the meanings defined in the
Agreement
MODIFICATIONS TO THE AGREEMENT.
I. Exhibit A to the Agreement is hereby amended to add the following:
[**]
2. "Field Two" in Exhibit A of the Agreement is deleted and replaced with
the following: [**]
3. Section 1.7 of the Agreement is hereby amended to add the following:
"Fields Five and Six, as set forth in Exhibit A, shall be limited to
Research Use.
4. The Agreement is hereby amended to add the following Section 1.23:
- -----------
[**] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
<PAGE>
"1.23 "Research Use" means the performance of basic life science
-------------
research, including high throughput screening, but in all events
excluding laboratory testing for human clinical diagnostic
purposes."
5. Section 2.1 (d) of the Agreement is hereby amended to delete the last
sentence of such section and replace it with the following:
"Notwithstanding any provision of this Agreement to the contrary,
including the provisions of Section 8.3, if the parties do not agree by
June 1, 2000 upon: (i) a tolling fee for Magnetic Beads of less than or
equal to [**] ($[**]) for every three thousand (3000) units of Magnetic
Beads purchased, where a "unit" of Magnetic Beads is equal to one
microsphere bead, and (ii) the development of a beadmap for Magnetic
Beads which shall be capable of discriminating between [**] analytes
with a minimum accuracy level of [**] percent ([**]%) and no more than
[**] percent ([**]%) misclassification, all rights of BIO-RAD to have
LUMINEX treat the Magnetic Beads hereunder and all obligations of
LUMINEX with respect to the treatment or processing of Magnetic Beads
for BIO-RAD hereunder shall automatically terminate unless otherwise
agreed in writing, provided, however, that in such event BIO-RAD shall
-------- -------
have the right to have the Magnetic Beads processed by BIO-RAD or a
third party and, for the avoidance of doubt, BIO-RAD shall retain the
exclusivity rights with respect to Magnetic Beads set forth in Section
3.2 of this Agreement."
6. Section 3.1 of the Agreement is hereby amended to add the following
after the phrase "only as part of BIO-RAD Systems":
"'or, within Fields Five and Six, Luminex100 Systems separately"
7. Section 3.1 of the Agreement is hereby further amended to add the
following after the phrase "BIO-RAD U.S. Diagnostics Division
management":
"or BIO-RAD U.S. Life Sciences Division management"
8. Section 3.1 of the Agreement is hereby further amended to add the
following after the phrase "in conjunction with their operation of BIO-
RAD Systems":
"and Luminex100 Systems"
9. Section 3.3(b)(i) of the Agreement is hereby amended to add the
following after the phrase "human clinical diagnostics industry":
"or the life science research industry"
10. Section 3.5 of the Agreement is hereby amended to add the following
after the phrase "BIO-RAD U.S. Diagnostics Division management":
"or BIO-RAD U.S. Life Sciences Division management"
------------
[**] Indicates that material has been omitted and confidential
treatment requested therefor. All such material has been filed
separately with the Commission pursuant to Rule 406.
-2-
<PAGE>
11. Section 4.6(c) of the Agreement is hereby amended to add the following
after the phrase "in vitro diagnostic Kits":
--------
"or Kits for Research Use"
12. Section 4.8 of the Agreement is hereby amended to add the following
after the phrase "All invoices shall be sent to the following
address:"
"For Clinical Diagnostics Group, Bio-Rad Laboratories, Accounts
Payable, 4000 Alfred Nobel Drive, Hercules, California 49547, or for
Life Sciences Group, Bio Rad Laboratories, Accounts Payable, 2000
Alfred Nobel Drive, Hercules, California."
13. Section 4.11 (a) of the Agreement is hereby amended to add the
following after the phrase "At the Effective Date:"
"and at the Amendment Effective Date"
14. Section 4.11(b) of the Agreement is hereby amended to add the
following after the phrase "the date of this Agreement:"
"and at the Amendment Effective Date"
15. Section 5.2 of the Agreement is hereby amended to read in its entirety
as follows:
"Exclusivity of Efforts. To avoid conflicts of interest, BIO-RAD and
----------------------
its Affiliates will not manufacture, market, sell or otherwise
distribute any materials, technologies or products, other than
Luminex100 Systems, Bio-Rad Systems and Kits, specifically designed
for performing Multiplexed Bead Assays using flow cytometry based
detection of particles for use in the human clinical diagnostics
industry or for Research Use within the Fields. In addition, BIO-RAD
agrees that except for performing its development obligations as
agreed pursuant to Section 2.1 and the development and manufacture of
Bio-Rad Systems, neither BIO-RAD's clinical diagnostics division or
group nor BIO-RAD's life sciences division or group will directly or
indirectly develop any materials, technologies or products
specifically designed for performing Multiplexed Bead Assays within
the Fields using flow cytometry based detection of particles. BIO-RAD
further agrees that it will not provide research and development
funding to or license any third party to develop, manufacture, market,
sell or otherwise distribute any materials, technologies or products
specifically designed for performing Multiplexed Bead Assays within
the Fields using flow cytometry based detection of particles. It is
understood that the foregoing sentence shall not apply to passive
investments by BIO-RAD in equity of third parties for use in the human
clinical diagnostics industry or for Research Use."
-3-
<PAGE>
16. Section 8.1 of the Agreement is hereby amended to add the following
after the words "each such renewal term":
"but which in no case shall vary by more than [**] percent ([**]%)
from the average of the three prior years' sales. Notwithstanding the
foregoing provisions of this Section 8.1, Fields Five and Six shall be
included in the Agreement during each of the renewal terms only if the
parties agree upon and BIO-RAD meets annual sales goals with respect
to Kits in Fields Five and Six, which annual sales goals shall be
negotiated in good faith by the parties prior to the commencement of
each such renewal term but which in no case shall vary by more than
[**] percent ([**]%) from the average of the three prior years'
sales."
17. Section 8.3 of the Agreement is hereby amended to add the following
after the phrase "Luminex100 System" in the second line of that
Section:
"(or, with respect to Fields other than Fields One, Two, Three or
Four, beginning five (5) years after the addition to the Agreement of
such Field or Fields)"
18. Section 8.3 of the Agreement is hereby further amended to delete the
last sentence thereof and replace if with the following:
"If BIO-RAD has not made commercially available Kits incorporating
Magnetic Beads in each of Fields One, Two, Three and Four within three
(3) years of the Effective Date plus any extension of time necessary
to produce Magnetic Beads reasonably acceptable to BIO-RAD, LUMINEX
may terminate BIO-RAD's exclusive rights with respect to Magnetic
Beads in Fields One, Two, Three and Four by written notice to BIO-RAD.
If BIO-RAD has not made commercially available Kits incorporating
Magnetic Beads in each of Fields Five and Six within three (3) years
of the Amendment Effective Date plus any extension of time necessary
to produce Magnetic Beads reasonably acceptable to BIO-RAD, LUMINEX
may terminate BIO-RAD's exclusive rights with respect to Magnetic
Beads in Five and Six by written notice to BIO- RAD.
19. Section 12.2 of the Agreement is hereby amended to add the following
after the word "Group" in the third line of that Section:
"or BIO-RAD Vice-President Life Sciences Division, as appropriate,"
20. Section 12.8 of the Agreement is hereby amended to add the following
at the end of that Section:
"with a further copy to:
Bio-Rad Laboratories, Inc. Life Science Group
2000 Alfred Nobel Drive
Hercules, California 94547
Attention: Vice-President, Life Science Group"
- --------------
[**] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
-4-
<PAGE>
Fax: (510) 741-5803"
21. ADDITIONAL TERM: ADVANCE AGAINST ROYALTIES. Upon the effective date of
this Amendment, BIO-RAD shall pay to LUMINEX an aggregate of [**] Dollars
($[**]) for both of Fields Five and Six as an Advance.
22. The additional fee for expansion of Field Two set forth in Exhibit A of
the Agreement is waived.
ENTIRE AGREEMENT. Notwithstanding the first sentence of Section 12.17 of the
Agreement, together the Agreement (including the Exhibits thereto) and this
Amendment constitute the entire agreement between the Parties in connection
with the subject matter thereof and supersede all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties.
IN WITNESS WHEREOF, the Parties have executed this Amendment.
LUMINEX CORPORATION BIO-RAD LABORATORIES, INC.
By: /s/ Randel S. Marfin By: /s/ Sanford Wadler
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Name: Randel S. Marfin Name: Sanford Wadler
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Title: Vice President - Business Development Title: Vice President
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[**] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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