Lumines Corporation
As filed
with the Securities and Exchange Commission on June 16,
2008
Registration Statement
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
LUMINEX CORPORATION
(Exact Name of Registrant as
Specified In its Charter)
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Delaware
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72-2747608
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(State or other jurisdiction of incorporation or
organization)
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(I.R.S. Employer Identification No.)
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12212 Technology
Boulevard
Austin, Texas 78727
(512) 219-8020
(Address, including zip code,
and telephone number, including area code, of Registrants
principal executive offices)
David S. Reiter
Vice President, General Counsel
and Corporate Secretary
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)
Copy to:
Howard H. Lamar III
Bass, Berry & Sims
PLC
315 Deaderick Street,
Suite 2700
Nashville, TN
37238-3001
(615) 742-6200
Approximate date of commencement of proposed sale to the
public: From time to time after this registration statement
becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
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, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
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. o
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. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the Registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller Reporting Company
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CALCULATION OF REGISTRATION
FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering Price Per
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Aggregate Offering
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Amount of
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Securities to be Registered
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Registered(1)
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Unit(2)
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Price(2)
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Registration Fee(3)
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Debt Securities
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Common Stock, $.001 par value per share(4)
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Preferred Stock, $.001 par value per share
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Warrants
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Total
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(1)
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An indeterminate amount of debt
securities, common stock, preferred stock and warrants are being
registered hereunder at indeterminate prices. Pursuant to
Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers any additional securities
that may become issuable pursuant to stock splits, stock
dividends or similar transactions, without the need for any
post-effective amendment. This Registration Statement includes
such indeterminate principal amount, liquidation amount or
number of senior or subordinated debt securities or preferred
stock and common stock as may be issued upon conversion or
exchange of any senior or subordinated debt securities or
preferred stock that provide for conversion or exchange into
other securities. Separate consideration may or may not be
received by the Registrant for securities that are issuable on
exercise, conversion or exchange of other securities.
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(2)
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The proposed maximum per unit and
aggregate offering prices per class of security will be
determined from time to time by the Registrant in connection
with the issuance by the Registrant of the securities registered
hereunder.
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(3)
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The registrant is deferring payment
of the registration fee pursuant to Rule 456(b) and is
omitting this information in reliance on Rule 456(b) and
Rule 457(r).
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(4)
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Each share of common stock being
registered hereby includes associated rights to acquire
Series A Junior Participating Preferred Stock of Luminex
Corporation pursuant to the shareholders rights plan described
in the prospectus contained in this Registration Statement.
Prior to the occurrence of certain events, the rights will not
be exercisable or evidenced separately from the common stock.
The value attributable to the associated rights, if any, is
reflected in the value attributable to the common stock.
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PROSPECTUS
Debt
Securities
Common Stock
Preferred Stock
Warrants
From time to time, we may offer to sell debt securities, common
stock, preferred stock or warrants under this prospectus. This
prospectus describes some of the general terms that may apply to
these securities. The specific terms of any securities to be
offered will be described in supplements to this prospectus that
contain specific information about the offering and the terms of
the securities.
We may offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers.
These securities may also be resold by securities holders. An
accompanying prospectus supplement will set forth the names of
any underwriters or agents involved in the sale of securities in
respect of which this prospectus is being delivered, the
principal amounts, if any, to be purchased by underwriters and
the compensation, if any, of such underwriters or agents.
Our common stock is traded on the NASDAQ Global Market under the
symbol LMNX.
Our principal executive offices are located at 12212 Technology
Boulevard, Austin, Texas 78727. Our telephone number is
(512) 219-8020.
This prospectus may not be used to offer or consummate sales
of these securities unless accompanied by a prospectus
supplement.
Investing in our securities involves a high degree of risk.
You should consider carefully the risks under the caption
Risk Factors on page 4 of this prospectus and
included in our most recent Annual Report on
Form 10-K
filed with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, as supplemented or
revised by our subsequent Quarterly Reports on
Form 10-Q
and under the caption Risk Factors in any applicable
prospectus supplement, before you invest in any of our
securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is June 16, 2008.
TABLE OF
CONTENTS
YOU SHOULD ONLY RELY ON THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND IN A PROSPECTUS
SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
DIFFERENT INFORMATION. IF ANYONE PROVIDES YOU WITH DIFFERENT OR
INCONSISTENT INFORMATION, YOU SHOULD NOT RELY ON IT. WE WILL NOT
MAKE AN OFFER TO SELL THESE SECURITIES IN ANY JURISDICTION WHERE
THE OFFER AND SALE IS NOT PERMITTED. YOU SHOULD ASSUME THAT THE
INFORMATION APPEARING IN THIS PROSPECTUS, AS WELL AS INFORMATION
WE PREVIOUSLY FILED WITH THE SEC AND INCORPORATED BY REFERENCE,
IS ACCURATE ONLY AS OF ITS DATE. OUR BUSINESS, FINANCIAL
CONDITION, RESULTS OF OPERATIONS AND PROSPECTS MAY HAVE CHANGED
SINCE THOSE DATES.
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ABOUT
THIS PROSPECTUS
This prospectus is a part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC,
utilizing a shelf registration process. Under this
shelf process, we may sell any combination of the securities
registered in one or more offerings from time to time. Each time
we sell securities, we will provide a prospectus supplement and
may provide other offering materials that will contain specific
information about the terms of that offering. The prospectus
supplement or other offering materials may also add, update or
change information contained in this prospectus. Before
purchasing any securities, you should read both this prospectus
and any prospectus supplement or other offering materials,
together with the additional information described under the
headings Where You Can Find More Information and
Incorporation of Information by Reference in this
prospectus.
This prospectus and any accompanying prospectus supplement do
not contain all of the information included in the registration
statement. We have omitted parts of the registration statement
in accordance with the rules and regulations of the SEC. For
further information, we refer you to the registration statement
on
Form S-3
of which this prospectus is a part, including its exhibits.
Statements contained in this prospectus and any accompanying
prospectus supplement about the provisions or contents of any
agreement or other document are not necessarily complete. If the
SECs rules and regulations require that an agreement or
document be filed as an exhibit to the registration statement,
please see that agreement or document for a complete description
of these matters.
Unless expressly stated or the context otherwise requires, the
terms we, our, us, the
company and Luminex refer to Luminex
Corporation, a Delaware corporation, and its consolidated
subsidiaries.
FORWARD-LOOKING
STATEMENTS
This prospectus, including any accompanying prospectus
supplement and the documents incorporated by reference herein
and therein, contains statements that are forward-looking
statements as defined within the meaning of Section 21E of
the Securities Exchange Act of 1934, as amended (the
Exchange Act), and Section 27A of the
Securities Act of 1933, as amended (the Securities
Act). Forward-looking statements give our current
expectations or forecasts of future events. All statements other
than statements of current or historical fact contained in this
prospectus or any accompanying prospectus supplement, including
statements regarding our future financial position, business
strategy, budgets, projected costs, and plans and objectives of
management for future operations, are forward-looking
statements. The words anticipate,
believe, continue, estimate,
expect, intend, may,
plan, projects, will, and
similar expressions, as they relate to us, are intended to
identify forward-looking statements. These statements are not
guarantees of future performance and are based on our current
plans and actual future activities, and our results of
operations may be materially different from those set forth in
the forward-looking statements as a result of known or unknown
risks and uncertainties, including, among other things:
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risks and uncertainties relating to market demand and acceptance
of our products and technology,
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dependence on strategic partners for development,
commercialization and distribution of products,
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concentration of our revenue in a limited number of strategic
partners,
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fluctuations in quarterly results due to a lengthy and
unpredictable sales cycle and bulk purchases of consumables,
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our ability to scale manufacturing operations and manage
operating expenses, gross margins and inventory levels,
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potential shortages of components,
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competition,
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our ability to successfully launch new products,
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the timing of regulatory approvals,
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the implementation, including any modification, of our strategic
operating plans,
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the uncertainty regarding the outcome or expense of any
litigation brought against us,
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risks relating to our foreign operations, and
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risks and uncertainties associated with implementing our
acquisition strategy and the ability to integrate acquired
companies, including Luminex Molecular Diagnostics, or selected
assets into our consolidated business operations, including the
ability to recognize the benefits of our acquisitions.
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Many of these risks, uncertainties and other factors are beyond
our control and are difficult to predict. New factors may also
emerge from time to time that could adversely affect our
business. It is not possible for us to predict all of the
factors that may from time to time affect our business or to
assess the potential impact of each such factor. We caution
readers not to place undue reliance on any such forward-looking
statements, which speak only as of the date on which they are
made, and, except to fulfill our obligations under the United
States securities laws, we undertake no obligation to update any
such statement to reflect events or circumstances after the date
on which it is made. We qualify all of the information presented
in this prospectus and any accompanying prospectus supplement
(and the information incorporated by reference herein and
therein), and particularly our forward-looking statements, by
the cautionary statements described above and in the section of
this prospectus entitled Risk Factors.
2
LUMINEX
CORPORATION
We develop, manufacture and sell proprietary biological testing
technologies and products with applications throughout the life
sciences industry. The life sciences industry depends on a broad
range of tests, called bioassays, to perform diagnostic tests,
discover and develop new drugs and identify genes. Our
xMAP®
technology, an open architecture, proprietary multiplexing
technology, allows simultaneous analysis of multiple bioassays
from a small sample volume, typically a single drop of fluid, by
reading biological tests on the surface of microscopic
polystyrene beads called microspheres. xMAP technology combines
this miniaturized liquid array bioassay capability with small
lasers, digital signal processors and proprietary software to
create a system offering advantages in speed, precision,
flexibility and cost. Our xMAP technology is currently being
used within various segments of the life sciences industry which
includes the fields of drug discovery and development, clinical
diagnostics, genetic analysis, bio-defense, protein analysis and
biomedical research.
We have established a position in the life sciences industry by
developing and delivering products that meet customer and
partner needs in specific market segments. These needs are
addressed by our proprietary technology, xMAP Technology, which
allows the end-user in a laboratory to perform biological
testing in a multiplexed format. Multiplexing allows many
different laboratory results to be generated from a single
sample at one time. This is important because our end-user
customers and partners, which include laboratory professionals
performing research, clinical laboratories performing tests on
patients as ordered by a physician and other laboratories, have
a fundamental need to perform high quality testing as
efficiently as possible. Until the availability of multiplexing
technology such as xMAP, the laboratory professional had to
perform one test on one sample in a sequential manner, and if
additional testing was required on that sample, a second
procedure would be performed to generate the second result, and
so on until all the necessary tests were performed. By using
xMAP technology, these end-users have the opportunity to become
more efficient by generating multiple simultaneous results per
sample. We are currently developing next generation systems with
significantly higher multiplexing capabilities that will provide
us with the ability to address unmet customer and partner needs
in existing and new market segments.
We have adopted a business model built around strategic
partnerships. We have licensed our xMAP technology to other
companies, who then develop products that incorporate the xMAP
technology into products that they sell to the end-user. We
develop and manufacture the proprietary xMAP laboratory
instrumentation and the proprietary xMAP microspheres and sell
these products to our partners. Our partners sell xMAP
instrumentation, xMAP-based reagent consumable products or
xMAP-based testing services, which run on the xMAP
instrumentation, to the end-user customer, typically a testing
laboratory. When our partners sell an xMAP-based consumable
product or xMAP based testing service to their customer, we earn
a royalty on the sale from the partner.
A fundamental component of our strategy over the past two years
has been to augment the partnership model with a distribution
model, designed to take advantage of our increasing installed
base of xMAP-based instrumentation. We established the Luminex
Bioscience Group, which we refer to as LBG, in 2005, with the
charter of developing products that would be complementary to
our partners products, that we would take responsibility
for manufacturing on their behalf and that our partners would
then sell to the end-user, thereby leveraging both our existing
distribution channels and our existing installed base of
instrumentation. LBG introduced their first two products in late
2006 and launched several assay products in 2007.
On March 1, 2007, we completed our acquisition of Tm
Bioscience, now a wholly-owned subsidiary of the Company and
known as Luminex Molecular Diagnostics, or LMD, of Toronto,
Canada. LMD is a molecular diagnostics company and focuses its
resources on building a commercialization engine for the design,
development, manufacture, marketing and selling of genetic
tests, also referred to as DNA-based tests,
nucleic acid tests or molecular
diagnostics. LMD focuses on leveraging this engine in
order to become a market leader in at least one of the three
segments of the genetic testing market for which it was
developing products: human genetics, personalized medicine and
infectious disease. We completed the integration of LMD during
2007, and we believe the combined company is in a position to
take advantage of the complementary strengths of both companies
in molecular diagnostics.
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Luminex was incorporated under the laws of the State of Texas in
May 1995 and began commercial production of our Luminex 100
System in 1999. We were reincorporated in the State of Delaware
in July 2000. Our shares of common stock are traded on the
NASDAQ Global Market under the symbol LMNX. Our
principal executive offices are located at 12212 Technology
Blvd., Austin, Texas 78727, and our telephone number is
(512) 219-8020.
Our web site address is www.luminexcorp.com. Please note that
our web site address is provided as an inactive textual
reference only. The information provided on our web site is not
part of this prospectus and is therefore not incorporated by
reference unless such information is otherwise specifically
referenced elsewhere in this prospectus.
RISK
FACTORS
Investing in our securities involves risks. You are advised to
read carefully the information under the caption
Item 1A. Risk Factors in our most recent annual
report filed on
Form 10-K
and under Item 1A. Risk Factors in our
quarterly reports on
Form 10-Q,
and in documents we file with the SEC after the date of this
prospectus and which are incorporated by reference into this
prospectus, as described below under the heading
Incorporation of Information by Reference. Before
making an investment decision, you should carefully consider
these risks as well as other information we incorporate by
reference in this prospectus. The risks and uncertainties that
we have described are not the only ones facing us. The
prospectus supplement applicable to each offering of securities
will contain additional information about risks applicable to an
investment in us and our securities.
CONSOLIDATED
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratios of earnings to fixed
charges for each of the periods indicated.
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Fiscal Quarter
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Ended
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Fiscal Year Ended December 31,
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March 31, 2008
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2007
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2006
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2005
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2004
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2003
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Ratio of earnings to fixed charges(1)
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45,340
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Ratio of earnings to combined fixed charges and preferred
security dividends(1)(2)
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45,340
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(1) |
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For purposes of computing the ratio of earnings to fixed charges
and the ratio of our combined fixed charges and preferred
security dividends to earnings, earnings consist of consolidated
pretax income from continuing operations plus fixed charges.
Fixed charges consist of interest expense, net amortization of
debt premium, and the interest portion of rental expense.
Earnings were insufficient to cover fixed charges by
$4.9 million in 2003, $3.6 million in 2004,
$2.6 million in 2005, $1.8 million in 2007, and
$996,000 in the three months ended March 31, 2008. For the
years ended December 31, 2003, 2004, 2005 and 2007, and the
three months ended March 31, 2008 set forth in the table
above, we had no earnings and are therefore unable to calculate
the ratio of combined fixed charges and preference dividends to
earnings. |
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During each of these periods, the company had no preferred
securities outstanding. |
USE OF
PROCEEDS
Unless otherwise specified in an applicable prospectus
supplement, we currently intend to use the proceeds we receive
from the offered securities for general corporate purposes,
which include potential acquisitions of, or investments in,
companies and technologies that complement our business,
research and development, capital expenditures, additions to
working capital and any other purpose specified in any
prospectus supplement. The amount of securities offered from
time to time pursuant to this prospectus or any prospectus
supplement, and the precise amounts and timing of the
application of net proceeds from the sale of these securities,
will depend on our funding requirements, whether related to
acquisitions or general corporate purposes. If at the time of an
issuance of securities we elect to make different or more
specific use of proceeds than described in this prospectus, such
use will be described in the prospectus supplement relating to
those securities. We will not receive the net proceeds of sales
by selling securities holders, if any.
4
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes certain general terms and provisions
of the debt securities. The debt securities will be issued under
an indenture between us and The Bank of New York
Trust Company, N.A., as trustee. When we offer to sell a
particular series of debt securities, we will describe the
specific terms for the securities in a supplement to this
prospectus. The prospectus supplement will also indicate whether
the general terms and provisions described in this prospectus
apply to a particular series of debt securities.
We have summarized herein certain terms and provisions of the
indenture. The summary is not complete and is qualified in its
entirety by reference to the actual text of the indenture. The
indenture is incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part. You
should read the indenture for the provisions which may be
important to you. The indenture is subject to and governed by
the Trust Indenture Act of 1939, as amended.
The indenture does not limit the amount of debt securities which
we may issue. We may issue debt securities up to an aggregate
principal amount as we may authorize from time to time. The
prospectus supplement will describe the terms of any debt
securities being offered, including:
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classification as senior or subordinated debt securities;
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ranking of the specific series of debt securities relative to
other outstanding indebtedness, including subsidiaries
debt;
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if the debt securities are subordinated, the aggregate amount of
outstanding indebtedness, as of a recent date, that is senior to
the subordinated securities, and any limitation on the issuance
of additional senior indebtedness;
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the designation, aggregate principal amount and authorized
denominations;
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the maturity date;
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the interest rate, if any, and the method for calculating the
interest rate;
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the interest payment dates and the record dates for the interest
payments;
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any mandatory or optional redemption terms or prepayment,
conversion, sinking fund or exchangeability or convertibility
provisions;
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the place where we will pay principal and interest;
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if other than denominations of $1,000 or multiples of $1,000,
the denominations the debt securities will be issued in;
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whether the debt securities will be issued in the form of global
securities or certificates;
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the applicability of and additional provisions, if any, relating
to the defeasance of the debt securities;
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the currency or currencies, if other than the currency of the
United States, in which principal and interest will be paid;
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the dates on which premium, if any, will be paid;
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our right, if any, to defer payment of interest and the maximum
length of this deferral period; and
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other specific terms, including any additional events of default
or covenants.
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Senior
Debt
Senior debt securities will rank equally and pari passu with all
of our other unsecured and unsubordinated debt from time to time
outstanding.
5
Subordinated
Debt
Subordinated debt securities will be subordinate and junior in
right of payment, to the extent and in the manner set forth in
the indenture, to all of our senior indebtedness
from time to time outstanding. The indenture defines
senior indebtedness as obligations or indebtedness
of, or guaranteed or assumed by, us for borrowed money, whether
or not represented by bonds, debentures, notes or similar
instruments and amendments, renewals, extensions, modifications
and refundings of any such obligations or indebtedness.
Senior indebtedness does not include any
indebtedness or other obligations specifically designated as not
being senior indebtedness.
In general, the holders of all senior indebtedness are first
entitled to receive payment of the full amount unpaid on senior
indebtedness before the holders of any of the subordinated debt
securities or coupons are entitled to receive a payment on
account of the principal or interest on the indebtedness
evidenced by the subordinated debt securities in certain events.
These events include:
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any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings which
concern us or a substantial part of our property;
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a default having occurred for the payment of principal, premium,
if any, or interest on or other monetary amounts due and payable
on any senior indebtedness or any other default having occurred
concerning any senior indebtedness, which permits the holder or
holders of any senior indebtedness to accelerate the maturity of
any senior indebtedness with notice or lapse of time, or both.
Such an event of default must have continued beyond the period
of grace, if any, provided for such event of default, and such
an event of default shall not have been cured or waived or shall
not have ceased to exist; or
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the principal of, and accrued interest on, any series of the
subordinated debt securities having been declared due and
payable upon an event of default pursuant to section 5.02
of the indenture. This declaration must not have been rescinded
and annulled as provided in the indenture.
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If this prospectus is being delivered in connection with a
series of subordinated debt securities, the accompanying
prospectus supplement or the information incorporated by
reference in this prospectus will set forth the approximate
amount of senior indebtedness outstanding as of the end of the
most recent fiscal quarter.
Merger,
Consolidation or Sale of Assets
The indenture prohibits us from merging into or consolidating
with any other person or selling, leasing or conveying
substantially all of our assets and the assets of our
Subsidiaries, taken as a whole, to any person, unless:
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either we are the continuing corporation or the successor
corporation or the person which acquires by sale, lease or
conveyance substantially all our or our Subsidiaries
assets is a corporation organized under the laws of the United
States, any state thereof, or the District of Columbia, and
expressly assumes the due and punctual payment of the principal
of, and premium, if any, and interest on all the debt securities
and the due and punctual performance and observance of every
covenant of the indenture to be performed or observed by us, by
supplemental indenture satisfactory to the trustee, executed and
delivered to the trustee by such corporation;
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no Event of Default described under the caption Events of
Default and Remedies or event which, after notice or lapse
of time or both would become an Event of Default, has happened
and is continuing; and
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we have delivered to the trustee an officers certificate
and an opinion of counsel each stating that such transaction and
such supplemental indenture comply with the indenture provisions
relating to merger, consolidation and sale of assets.
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Upon any consolidation or merger with or into any other person
or any sale, conveyance, lease, or other transfer of all or
substantially all of our or our Subsidiaries assets to any
person, the successor person shall
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succeed, and be substituted for, us under the indenture and each
series of outstanding debt securities, and we shall be relieved
of all obligations and covenants under the indenture and each
series of outstanding debt securities to the extent we were the
predecessor person.
Events of
Default and Remedies
When we use the term Event of Default in the
indenture with respect to the debt securities of any series, we
mean:
(1) default in paying interest on the debt securities when
it becomes due and the default continues for a period of
30 days or more;
(2) default in paying principal, or premium, if any, on the
debt securities when due;
(3) default is made in the payment of any sinking or
purchase fund or analogous obligation when the same becomes due,
and such default continues for 30 days or more;
(4) default in the performance, or breach, of any covenant
or warranty in the indenture (other than defaults specified in
clause (1), (2) or (3) above) and the default or
breach continues for a period of 60 days or more after we
receive written notice from the trustee or we and the trustee
receive notice from the holders of at least 25% in aggregate
principal amount of the outstanding debt securities of the
series;
(5) we default in the payment of any scheduled principal of
or interest on any of our Indebtedness or any Indebtedness of
any of our Subsidiaries (other than the debt securities),
aggregating more than $10 million in principal amount, when
due and payable after giving effect to any applicable grace
period;
(6) we default in the performance of any other term or
provision of any of our Indebtedness or any Indebtedness of any
of our Subsidiaries (other than the debt securities) in excess
of $10 million principal amount that results in such
Indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise become due and payable, and
such acceleration shall not have been rescinded or annulled, or
such Indebtedness shall not have been discharged, within a
period of 15 days after there has been given to us by the
trustee or to us and the trustee by the holders of at least 25%
in aggregate principal amount of the debt securities then
outstanding of any series, a written notice specifying such
default or defaults;
(7) one or more judgments, decrees, or orders is entered
against us or any of our Significant Subsidiaries by a court
from which no appeal may be or is taken for the payment of
money, either individually or in the aggregate, in excess of
$10 million, and the continuance of such judgment, decree,
or order remains unsatisfied and in effect for any period of 45
consecutive days after the amount of the judgment, decree or
order is due without a stay of execution;
(8) certain events of bankruptcy, insolvency,
reorganization, administration or similar proceedings with
respect to us have occurred; and
(9) any other Events of Default set forth in a prospectus
supplement.
If an Event of Default (other than an Event of Default specified
in clause (5), (6) or (7)) under the indenture occurs with
respect to the debt securities of any series and is continuing,
then the trustee or the holders of not less than 51% of the
principal amount of the outstanding debt securities of that
series may by written notice require us to repay immediately the
entire principal amount of the outstanding debt securities of
that series (or such lesser amount as may be provided in the
terms of the securities), together with all accrued and unpaid
interest and premium, if any.
If an Event of Default under the indenture specified in clause
(5), (6) or (7) occurs and is continuing, then the
entire principal amount of the outstanding debt securities (or
such lesser amount as may be provided in the terms of the
securities) will automatically become due and payable
immediately without any declaration or other act on the part of
the trustee or any holder.
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After a declaration of acceleration, the holders of a majority
in principal amount of outstanding debt securities of any series
may rescind this accelerated payment requirement if all existing
Events of Default, except for nonpayment of the principal on the
debt securities of that series that has become due solely as a
result of the accelerated payment requirement, have been cured
or waived and if the rescission of acceleration would not
conflict with any judgment or decree. The holders of a majority
in principal amount of the outstanding debt securities of any
series also have the right to waive past defaults, except a
default in paying principal or interest on any outstanding debt
security, or in respect of a covenant or a provision that cannot
be modified or amended without the consent of all holders of the
debt securities of that series.
Holders of not less than 51% of the principal amount of the
outstanding debt securities of a series may seek to institute a
proceeding only after they have notified the Trustee of a
continuing Event of Default in writing and made a written
request, and offered reasonable indemnity, to the trustee to
institute a proceeding and the trustee has failed to do so
within 60 days after it received this notice. In addition,
within this
60-day
period the trustee must not have received directions
inconsistent with this written request by holders of a majority
in principal amount of the outstanding debt securities of that
series. These limitations do not apply, however, to a suit
instituted by a holder of a debt security for the enforcement of
the payment of principal, interest or any premium on or after
the due dates for such payment.
During the existence of an Event of Default actually known to a
responsible officer of the trustee, the trustee is required to
exercise the rights and powers vested in it under the indenture
and use the same degree of care and skill in its exercise as a
prudent person would under the circumstances in the conduct of
that persons own affairs. If an Event of Default has
occurred and is continuing, the trustee is not under any
obligation to exercise any of its rights or powers at the
request or direction of any of the holders unless the holders
have offered to the trustee security or indemnity reasonably
satisfactory to the trustee. Subject to certain provisions, the
holders of a majority in principal amount of the outstanding
debt securities of any series have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust, or power
conferred on the trustee.
The trustee will, within 90 days after receiving notice of
any default, give notice of the default to the holders of the
debt securities of that series, unless the default was already
cured or waived. Unless there is a default in paying principal,
interest or any premium when due, the trustee can withhold
giving notice to the holders if it determines in good faith that
the withholding of notice is in the interest of the holders. In
the case of a default specified in clause (4) above, no
notice of default to the holders of the debt securities of that
series will be given until 60 days after the occurrence of
the event of default.
Modification
and Waiver
The indenture may be amended or modified without the consent of
any holder of debt securities in order to:
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evidence a successor to the trustee;
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cure ambiguities, defects or inconsistencies;
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provide for the assumption of our obligations in the case of a
merger or consolidation or transfer of all or substantially all
of our assets that complies with the covenant described under
Merger, Consolidation or Sale of Assets;
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make any change that would provide any additional rights or
benefits to the holders of the debt securities of a series;
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add guarantors or co-obligors with respect to the debt
securities of any series;
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secure the debt securities of a series;
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establish the form or forms of debt securities of any series;
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add additional Events of Default with respect to the debt
securities of any series;
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maintain the qualification of the indenture under the
Trust Indenture Act; or
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make any change that does not adversely affect in any material
respect the interests of any holder.
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Other amendments and modifications of the indenture or the debt
securities issued may be made with the consent of the holders of
not less than a majority of the aggregate principal amount of
the outstanding debt securities of each series affected by the
amendment or modification. However, no modification or amendment
may, without the consent of the holder of each outstanding debt
security affected:
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reduce the principal amount, or extend the fixed maturity, of
the debt securities;
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alter or waive the redemption or repayment provisions of the
debt securities;
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change the currency in which principal, any premium or interest
is paid;
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reduce the percentage in principal amount outstanding of debt
securities of any series which must consent to an amendment,
supplement or waiver or consent to take any action;
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impair the right to institute suit for the enforcement of any
payment on the debt securities;
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waive a payment default with respect to the debt securities;
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reduce the interest rate or extend the time for payment of
interest on the debt securities;
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adversely affect the ranking of the debt securities of any
series; or
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release any guarantor or co-obligor from any of its obligations
under its guarantee or the indenture, except in compliance with
the terms of the indenture.
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Satisfaction,
Discharge and Covenant Defeasance
We may terminate our obligations under the indenture with
respect to the outstanding debt securities of any series, when:
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all debt securities of any series issued that have been
authenticated and delivered have been delivered to the trustee
for cancellation; or
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all the debt securities of any series issued that have not been
delivered to the trustee for cancellation have become due and
payable, will become due and payable within one year, or are to
be called for redemption within one year and we have made
arrangements satisfactory to the trustee for the giving of
notice of redemption by such trustee in our name and at our
expense, and in each case, we have irrevocably deposited or
caused to be deposited with the trustee sufficient funds to pay
and discharge the entire indebtedness on the series of debt
securities; and
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we have paid or caused to be paid all other sums then due and
payable under the indenture; and
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we have delivered to the trustee an officers certificate
and an opinion of counsel, each stating that all conditions
precedent under the indenture relating to the satisfaction and
discharge of the indenture have been complied with.
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We may elect to have our obligations under the indenture
discharged with respect to the outstanding debt securities of
any series (legal defeasance). Legal defeasance
means that we will be deemed to have paid and discharged the
entire indebtedness represented by the outstanding debt
securities of such series under the indenture, except for:
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the rights of holders of the debt securities to receive
principal, interest and any premium when due;
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our obligations with respect to the debt securities concerning
issuing temporary debt securities, registration of transfer of
debt securities, mutilated, destroyed, lost or stolen debt
securities and the maintenance of an office or agency for
payment for security payments held in trust;
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the rights, powers, trusts, duties and immunities of the
trustee; and
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the defeasance provisions of the indenture.
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In addition, we may elect to have our obligations released with
respect to certain covenants in the indenture (covenant
defeasance). If we so elect, any failure to comply with
these obligations will not constitute a default or an event of
default with respect to the debt securities of any series. In
the event covenant defeasance occurs, certain events, not
including non-payment, bankruptcy and insolvency events,
described under Events of Default and Remedies will
no longer constitute an event of default for that series.
In order to exercise either legal defeasance or covenant
defeasance with respect to outstanding debt securities of any
series:
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we must irrevocably have deposited or caused to be deposited
with the trustee as trust funds for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to the benefits of the holders of the debt
securities of a series:
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money in an amount; or
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U.S. government obligations (or equivalent government
obligations in the case of debt securities denominated in other
than U.S. dollars or a specified currency) that will
provide, not later than one day before the due date of any
payment, money in an amount; or
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a combination of money and U.S. government obligations (or
equivalent government obligations, as applicable),
in each case sufficient, in the written opinion (with respect to
U.S. or equivalent government obligations or a combination
of money and U.S. or equivalent government obligations, as
applicable) of a nationally recognized firm of independent
public accountants to pay and discharge, and which shall be
applied by the trustee to pay and discharge, all of the
principal (including mandatory sinking fund payments), interest
and any premium at due date or maturity;
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in the case of legal defeasance, we have delivered to the
trustee an opinion of counsel stating that, under then
applicable Federal income tax law, the holders of the debt
securities of that series will not recognize income, gain or
loss for Federal income tax purposes as a result of the deposit,
defeasance and discharge to be effected and will be subject to
the same Federal income tax as would be the case if the deposit,
defeasance and discharge did not occur;
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in the case of covenant defeasance, we have delivered to the
trustee an opinion of counsel to the effect that the holders of
the debt securities of that series will not recognize income,
gain or loss for Federal income tax purposes as a result of the
deposit and covenant defeasance to be effected and will be
subject to the same Federal income tax as would be the case if
the deposit and covenant defeasance did not occur;
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no event of default or default with respect to the outstanding
debt securities of that series has occurred and is continuing at
the time of such deposit after giving effect to the deposit or,
in the case of legal defeasance, no default relating to
bankruptcy or insolvency has occurred and is continuing at any
time on or before the 91st day after the date of such
deposit, it being understood that this condition is not deemed
satisfied until after the 91st day;
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the legal defeasance or covenant defeasance will not cause the
trustee to have a conflicting interest within the meaning of the
Trust Indenture Act, assuming all debt securities of a
series were in default within the meaning of such Act;
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the legal defeasance or covenant defeasance will not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which we are a party;
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the legal defeasance or covenant defeasance will not result in
the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of
1940, as amended, unless the trust is registered under such Act
or exempt from registration; and
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we have delivered to the trustee an officers certificate
and an opinion of counsel stating that all conditions precedent
with respect to the defeasance or covenant defeasance have been
complied with.
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Certain
Definitions
Indebtedness means:
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any liability of any person for borrowed money, or evidenced by
a bond, note, debenture, or similar instrument (including
purchase money obligations but excluding Trade Payables), or for
the payment of money relating to a lease that is required to be
classified as a capitalized lease obligation in accordance with
generally accepted accounting principles;
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any of the foregoing liabilities of another that a person has
guaranteed, that is recourse to such person, or that is
otherwise its legal liability;
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mandatorily redeemable preferred or preference stock of one of
our Subsidiaries held by anyone other than us or one of our
Subsidiaries; and
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any amendment, supplement, modification, deferral, renewal,
extension, or refunding of any liability of the types referred
to in the foregoing clauses.
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Subsidiary means any corporation, partnership or
other entity of which at the time of determination we own or
control directly or indirectly capital stock or equivalent
interests having more than 50% of the total voting power of the
capital stock or equivalent interests.
Trade Payables means accounts payable or any other
Indebtedness or monetary obligations to trade creditors created
or assumed in the ordinary course of business in connection with
the obtaining of materials, finished products, inventory or
services.
Paying
Agent and Registrar
The trustee will initially act as paying agent and registrar for
all debt securities. We may change the paying agent or registrar
for any series of debt securities without prior notice, and we
or any of our Subsidiaries may act as paying agent or registrar.
Forms of
Securities
Each debt security will be represented either by a certificate
issued in definitive form to a particular investor or by one or
more global securities representing the entire issuance of the
series of debt securities. Certificated securities in definitive
form and global securities will be issued in registered form.
Definitive securities name you or your nominee as the owner of
the security, and in order to transfer or exchange these
securities or to receive payments other than interest or other
interim payments, you or your nominee must physically deliver
the securities to the trustee, registrar, paying agent or other
agent, as applicable. Global securities name a depositary or its
nominee as the owner of the debt securities represented by these
global securities. The depositary maintains a computerized
system that will reflect each investors beneficial
ownership of the securities through an account maintained by the
investor with its broker/dealer, bank, trust company or other
representative, as we explain more fully below.
Global
Securities
Registered
Global Securities
We may issue the registered debt securities in the form of one
or more fully registered global securities that will be
deposited with a depositary or its custodian identified in the
applicable prospectus supplement and registered in the name of
that depositary or its nominee. In those cases, one or more
registered global
11
securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal or
face amount of the securities to be represented by registered
global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a registered global
security may not be transferred except as a whole by and among
the depositary for the registered global security, the nominees
of the depositary or any successors of the depositary or those
nominees.
If not described below, any specific terms of the depositary
arrangement with respect to any securities to be represented by
a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the
following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global
security will be limited to persons, called participants, that
have accounts with the depositary or persons that may hold
interests through participants. Upon the issuance of a
registered global security, the depositary will credit, on its
book-entry registration and transfer system, the
participants accounts with the respective principal or
face amounts of the securities beneficially owned by the
participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the
accounts to be credited. Ownership of beneficial interests in a
registered global security will be shown on, and the transfer of
ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of
participants, and on the records of participants, with respect
to interests of persons holding through participants. The laws
of some states may require that some purchasers of securities
take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge
beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered
owner of a registered global security, that depositary or its
nominee, as the case may be, will be considered the sole owner
or holder of the securities represented by the registered global
security for all purposes under the indenture. Except as
described below, owners of beneficial interests in a registered
global security will not be entitled to have the securities
represented by the registered global security registered in
their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be
considered the owners or holders of the securities under the
indenture. Accordingly, each person owning a beneficial interest
in a registered global security must rely on the procedures of
the depositary for that registered global security and, if that
person is not a participant, on the procedures of the
participant through which the person owns its interest, to
exercise any rights of a holder under the indenture. We
understand that under existing industry practices, if we request
any action of holders or if an owner of a beneficial interest in
a registered global security desires to give or take any action
that a holder is entitled to give or take under the indenture,
the depositary for the registered global security would
authorize the participants holding the relevant beneficial
interests to give or take that action, and the participants
would authorize beneficial owners owning through them to give or
take that action or would otherwise act upon the instructions of
beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt
securities represented by a registered global security
registered in the name of a depositary or its nominee will be
made to the depositary or its nominee, as the case may be, as
the registered owner of the registered global security. Neither
we nor the trustee or any other agent of ours or the trustee
will have any responsibility or liability for any aspect of the
records relating to payments made on account of beneficial
ownership interests in the registered global security or for
maintaining, supervising or reviewing any records relating to
those beneficial ownership interests.
We expect that the depositary for any of the securities
represented by a registered global security, upon receipt of any
payment of principal, premium, interest or other distribution of
underlying securities or other property to holders on that
registered global security, will immediately credit
participants accounts in amounts proportionate to their
respective beneficial interests in that registered global
security as shown on the records of the depositary. We also
expect that payments by participants to owners of beneficial
interests in a registered global security held through
participants will be governed by standing customer instructions
and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered
in street name, and will be the responsibility of
those participants.
If the depositary for any of these securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency
registered under the Exchange
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Act, and a successor depositary registered as a clearing agency
under the Exchange Act is not appointed by us within
90 days, we will issue securities in definitive form in
exchange for the registered global security that had been held
by the depositary. Any securities issued in definitive form in
exchange for a registered global security will be registered in
the name or names that the depositary gives to the trustee or
other relevant agent of ours or theirs. It is expected that the
depositarys instructions will be based upon directions
received by the depositary from participants with respect to
ownership of beneficial interests in the registered global
security that had been held by the depositary.
Unless we state otherwise in a prospectus supplement, the
Depository Trust Company (DTC) will act as
depositary for each series of debt securities issued as global
securities. DTC has advised us that DTC is a limited-purpose
trust company created to hold securities for its participating
organizations (collectively, the Participants) and
to facilitate the clearance and settlement of transactions in
those securities between Participants through electronic
book-entry changes in accounts of its Participants. The
Participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other
organizations. Access to DTCs system is also available to
other entities such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly
(collectively, the Indirect Participants). Persons
who are not Participants may beneficially own securities held by
or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interests in, and transfers
of ownership interests in, each security held by or on behalf of
DTC are recorded on the records of the Participants and the
Indirect Participants.
Governing
Law
The indenture and each series of debt securities are governed
by, and construed in accordance with, the laws of the State of
New York.
DESCRIPTION
OF CAPITAL STOCK
We may from time to time offer shares of our common stock or
preferred stock pursuant to this prospectus. This section
describes the general terms of our capital stock. A prospectus
supplement may provide information that is different from this
prospectus. If the information in the prospectus supplement with
respect to our capital stock being offered differs from this
prospectus, you should rely on the information in the prospectus
supplement. A copy of our restated certificate of incorporation
has been incorporated by reference from our filings with the SEC
as an exhibit to the registration statement. Our capital stock
and the rights of the holders of our capital stock are subject
to the applicable provisions of the General Corporation Law of
Delaware, our restated certificate of incorporation and our
amended and restated bylaws, each as amended, the rights of the
holders of our preferred stock, if any, with respect to common
stock, as well as the terms of our senior indebtedness and
subordinated indebtedness, if any.
The following description of our capital stock and any
description of our capital stock in a prospectus supplement may
not be complete and is subject to, and qualified in its entirety
by reference to, Delaware law and the actual terms and
provisions contained in our certificate of incorporation and
bylaws, each as amended from time to time.
General
Our restated certificate of incorporation provides that we may
issue up to 200,000,000 shares of common stock, par value
$.001 per share, and 5,000,000 shares of preferred stock,
par value $.001 per share. As of June 13, 2008, there were
37,176,337 shares of common stock outstanding and no shares
of preferred stock outstanding.
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Common
Stock
Each share of common stock has identical rights and privileges
in every respect. The holders of our common stock are entitled
to vote upon all matters submitted to a vote of our stockholders
and are entitled to one vote for each share of common stock held.
Subject to the prior rights and preferences, if any, applicable
to shares of preferred stock or any series of preferred stock,
the holders of common stock are entitled to receive such
dividends, payable in cash, stock or otherwise, as may be
declared by our board out of any funds legally available for the
payment of dividends.
If we voluntarily or involuntarily liquidate, dissolve or
wind-up, the
holders of common stock will be entitled to receive after
distribution in full of the preferential amounts, if any, to be
distributed to the holders of preferred stock or any series of
preferred stock, all of the remaining assets available for
distribution ratably in proportion to the number of shares of
common stock held by them. Holders of common stock have no
preferences or any preemptive conversion or exchange rights. All
outstanding shares of common stock are fully paid and
nonassessable.
Preferred
Stock
Our board of directors has the authority, within the limitations
and restrictions stated in our restated certificate of
incorporation, to authorize the issuance of shares of preferred
stock, in one or more classes or series, and to fix the rights,
preferences, privileges and restrictions thereof, including
dividend rights, conversion rights, voting rights, terms of
redemption, liquidation preferences, preemptive rights and the
number of shares constituting any series or the designation of
such series. The issuance of preferred stock could have the
effect of decreasing the market price of our common stock and
could adversely affect the voting and other rights of the
holders of our common stock. Our board of directors has the
authority to issue shares of preferred stock with terms and
conditions which could have the effect of delaying, deferring or
preventing a transaction or a change of control of our company
that might involve a premium price for holders of our common
stock or otherwise be in their best interest. There are no
restrictions on the repurchase or redemption of shares by the
registrant while there is any arrearage in the payment of
dividends or sinking fund installments.
Supermajority
Vote
Our restated certificate of incorporation provides that the
affirmative vote of at least 75% of the voting power of the
outstanding shares of our capital stock outstanding and entitled
to vote is required to amend or repeal, or to adopt any
provision inconsistent with, certain provisions of our restated
certificate of incorporation, including certain provisions which
could have the effect of delaying, deferring or preventing a
transaction or a change in control of our company.
Anti-Takeover
Effects of Provisions of our Restated Certificate of
Incorporation and Amended and Restated Bylaws
Our restated certificate of incorporation and amended and
restated bylaws contain provisions which could have the effect
of delaying, deferring or preventing a transaction or a change
in control of our company. Examples of such anti-takeover
effects include the following:
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our board of directors is divided into three classes of
directors with each class serving a staggered three-year term;
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our board of directors is authorized to expand the size of the
board with the consent of 75% of the directors in office and
then fill the vacancies created by such expansion;
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notice of stockholder nominations for directors and proposals
for other business must be made within a certain period prior to
an annual meeting; and
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stockholder action by written consent is prohibited and
therefore the power of stockholders to call special meetings is
significantly limited.
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14
These provisions may discourage a third party from making a
tender offer or otherwise attempting to obtain control of us, as
it generally makes it more difficult for stockholders to replace
a majority of the directors. There is no cumulative voting in
the election of directors.
Rights
Agreement
On June 20, 2001, our board of directors entered into a
rights agreement with Mellon Investor Services LLC. The rights
agreement could have the effect of delaying, deferring or
preventing a transaction or a change in control of our company.
The rights agreement provides that if a person acquires, or
commences a tender offer to acquire, 20% or more of our common
stock without the approval of our board of directors, all other
stockholders would have the right to purchase securities from us
at a price that is less than its fair market value, which would
substantially dilute and reduce the value of our common stock
owned by the acquiring person. As a result, our board of
directors has significant discretion to approve or disapprove a
persons efforts to acquire 20% or more of our common stock.
Anti-Takeover
Effects of Delaware Law
We are subject to Section 203 of the General Corporation
Law of Delaware, which regulates corporate acquisitions. In
general, Section 203 prohibits a publicly held Delaware
corporation from engaging in a business combination with an
interested stockholder for a period of three years following the
date the person became an interested stockholder, unless:
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the board of directors approved the transaction in which the
stockholder became an interested stockholder prior to the date
the interested stockholder attained such status;
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upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholders owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding shares owned by persons who are directors and also
officers and employee stock plans in which employee participants
do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or
exchange offer; or
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the business combination is approved by a majority of the board
of directors and by the affirmative vote of at least two-thirds
of the outstanding voting stock that is not owned by the
interested stockholder.
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Transfer
Agent and Registrar
The Transfer Agent and Registrar for our common stock is Mellon
Investor Services LLC.
DESCRIPTION
OF WARRANTS
We may issue warrants from time to time in one or more series
for the purchase of our common stock, debt securities or
preferred stock or any combination of those securities. Warrants
may be issued independently or together with any shares of
common stock, shares of preferred stock or debt securities
offered by any prospectus supplement and may be attached to or
separate from common stock, preferred stock or debt securities.
We will issue each series of warrants under a separate warrant
agreement between us and a bank or trust company as warrant
agent, as specified in the applicable prospectus supplement.
The warrant agent will act solely as our agent in connection
with the warrants and will not act for or on behalf of warrant
holders. The following sets forth certain general terms and
provisions of the warrants that may be offered under this
registration statement. Further terms of the warrants and the
applicable warrant agreement will be set forth in the applicable
prospectus supplement.
15
The applicable prospectus supplement will describe the terms of
the warrants in respect of which this prospectus is being
delivered, including, where applicable, the following:
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the title of the warrants;
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the total number of warrants;
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the currency, currencies, including composite currencies or
currency units, in which the price of the warrants may be
payable;
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the type and number of securities purchasable upon exercise of
such warrants;
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the designation and terms of the other securities, if any, with
which such warrants are issued and the number of such warrants
issued with each such offered security;
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the date, if any, on and after which the warrants and the
related securities will be separately transferable;
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if applicable, the date on which the right to exercise the
warrants shall commence and the date on which this right shall
expire;
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the price at which each security purchasable upon exercise of
such warrants may be purchased;
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if applicable, the minimum or maximum amount of the warrants
which may be exercised at any one time;
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information with respect to book-entry procedures, if any;
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any anti-dilution protection;
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a discussion of U.S. federal income tax considerations
relating to the warrants; and
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any other terms of the warrants including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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Warrants may be exchanged for new warrants of different
denominations, may be presented for registration of transfer,
and may be exercised at the corporate trust office of the
warrant agent or any other office indicated in the prospectus
supplement. Before the exercise of their warrants, holders of
warrants will not have any of the rights of holders of shares of
common stock, shares of preferred stock or debt securities
purchasable upon exercise, including the right to receive
payments of principal of, any premium on, or any interest on,
the debt securities purchasable upon such exercise or to enforce
the covenants in the indenture or to receive payments of
dividends, if any, on the shares common stock or preferred stock
purchasable upon such exercise or to exercise any applicable
right to vote.
Exercise
of Warrants
Each warrant will entitle the holder to purchase a principal
amount of debt securities or a number of shares of common stock
or preferred stock at an exercise price as shall in each case be
set forth in, or calculable from, the prospectus supplement
relating to those warrants. Warrants may be exercised at the
times set forth in the prospectus supplement relating to such
warrants. After the close of business on the expiration date (or
any later date to which the expiration date may be extended by
us), unexercised warrants will become void. Subject to any
restrictions and additional requirements that may be set forth
in the prospectus supplement relating thereto, warrants may be
exercised by delivery to the warrant agent of the certificate
evidencing the warrants properly completed and duly executed and
of payment as provided in the prospectus supplement of the
amount required to purchase the debt securities or shares of
common stock or shares of preferred stock purchasable upon such
exercise. The exercise price will be the price applicable on the
date of payment in full, as set forth in the prospectus
supplement relating to the warrants. Upon receipt of the payment
and the certificate representing the warrants to be exercised
properly completed and duly executed at the corporate trust
office of the warrant agent or any other office indicated in the
prospectus supplement, we will, as soon as practicable, issue
and deliver the debt securities, shares of common stock or
shares of
16
preferred stock purchasable upon such exercise. If fewer than
all of the warrants represented by that certificate are
exercised, a new certificate will be issued for the remaining
amount of warrants.
PLAN OF
DISTRIBUTION
We may sell the securities from time to time in one or more
transactions, including block transactions and transactions on
the NASDAQ Global Market or on a delayed or continuous basis, in
each case, through agents, underwriters or dealers, directly to
one or more purchasers, through a combination of any of these
methods of sale, or in any other manner, as provided in the
applicable prospectus supplement. The securities may be sold at
a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices relating to the
prevailing market prices or at negotiated prices. The
consideration may be cash or another form negotiated by the
parties. Agents, underwriters or broker-dealers may be paid
compensation for offering and selling the securities. That
compensation may be in the form of discounts, concessions or
commissions to be received from us or from the purchasers of the
securities. We will identify the specific plan, including any
underwriters, dealers, agents or direct purchasers and their
compensation, in the applicable prospectus supplement.
Underwriters, dealers and agents participating in the
distribution of the securities may be deemed to be underwriters,
and any discounts and commissions received by them from us or
from purchasers of the securities and any profit realized by
them on resale of the securities may be deemed to be
underwriting discounts and commissions under the Securities Act.
If such dealers or agents were deemed to be underwriters, they
may be subject to statutory liabilities under the Securities
Act. Underwriters, dealers and agents may be entitled, under
agreements entered into with us, to indemnification against and
contribution toward certain civil liabilities, including
liabilities under the Securities Act.
Offers to purchase the securities may be solicited by agents
designated by us from time to time. Any such agent involved in
the offer or sale of the securities will be named, and any
commissions payable by the company to such agent will be set
forth in the prospectus supplement. Unless otherwise indicated
in the prospectus supplement, any such agent will be acting on a
best efforts basis for the period of its appointment. Any such
agent may be deemed to be an underwriter, as that term is
defined in the Securities Act, of the securities so offered and
sold.
If an underwriter or underwriters are utilized in the sale of
securities, we will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such
sale is reached, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters,
and the terms of the transactions, including compensation of the
underwriters and dealers, if any, will be set forth in the
prospectus supplement, which will be used by the underwriters to
resell the securities.
If a dealer is utilized in the sale of the securities, we will
sell such securities to the dealer, as principal. The dealer may
then resell such securities to the public at varying prices to
be determined by such dealer at the time of resale. The name of
the dealer and the terms of the transactions will be set forth
in the prospectus supplement relating thereto.
Offers to purchase the securities may be solicited directly by
us and sales thereof may be made by us directly to institutional
investors or others. The terms of any such sales, including the
terms of any bidding or auction prices, if utilized, will be
described in the prospectus supplement relating thereto.
Agents, underwriters and dealers may be entitled under
agreements that may be entered into with us to indemnification
by us against certain liabilities, including liabilities under
the Securities Act, and any such agents, underwriters or
dealers, or their affiliates may be customers of, engage in
transactions with or perform services for us in the ordinary
course of business.
If so indicated in the prospectus supplement, we will authorize
agents and underwriters to solicit offers by certain
institutions to purchase debt securities from us at the public
offering price set forth in the prospectus supplement pursuant
to delayed delivery contracts (Contracts) providing
for payment and delivery on the date stated in the prospectus
supplement. Such Contracts will be subject to only those
conditions set forth in the prospectus supplement. Each Contract
will be for an amount not less than, and the principal amount of
securities sold pursuant to Contracts shall not be less nor more
than, the respective
17
amounts stated in such prospectus supplement. Institutions with
which Contracts, when authorized, may be made include commercial
and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions
and other institutions, but will in all cases be subject to our
approval. Contracts will not be subject to any conditions except
(i) the purchase by an institution of the securities
covered by its Contract shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United
States to which such institution is subject and (ii) we
shall have sold to such underwriters the total principal amount
of the securities less the principal amount thereof covered by
Contracts. A commission indicated in the prospectus supplement
will be paid to underwriters and agents soliciting purchases of
debt securities pursuant to Contracts accepted by us.
The securities may also be resold by security holders in the
manner provided in the applicable prospectus supplement.
LEGAL
MATTERS
Certain legal matters will be passed upon for Luminex by Bass,
Berry & Sims PLC, Nashville, Tennessee. Any
underwriters or agents will be represented by their own legal
counsel, who will be passing upon certain legal matters for the
underwriters and will be identified in the applicable prospectus
supplement.
EXPERTS
The audited consolidated financial statements of Luminex and the
effectiveness of internal control over financial reporting
incorporated in this prospectus by reference to our Annual
Report on
Form 10-K
for the year ended December 31, 2007, have been so
incorporated in reliance on the reports of Ernst &
Young LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting. The audited consolidated financial statements of Tm
Bioscience Corporation for the years ended December 31,
2006 and 2005, included as Exhibit 99.2 of our
Form 8-K
filed on March 1, 2007, as amended on May 9, 2007 and
incorporated by reference in this prospectus, have been audited
by Ernst & Young LLP, an independent registered public
accounting firm, as set forth in their report and related
Comments by Auditors for U.S. Readers on Canada
U.S. Reporting Difference thereon incorporated by reference
elsewhere herein and are incorporated by reference in reliance
upon such reports given on the authority of such firm as experts
in accounting and auditing.
INCORPORATION
OF INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with them, which means that we can disclose
important information to you by referring you to those
documents. The information incorporated by reference is
considered to be part of this prospectus, and information that
we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the
documents listed below (except the information contained in such
documents to the extent that it is furnished and not
filed):
1. Annual Report on
Form 10-K
for the year ended December 31, 2007 filed on
March 14, 2008.
2. All information in our proxy statement filed with the
SEC on April 21, 2008 to the extent incorporated by
reference in our Annual Report on
Form 10-K
for the year ended December 31, 2007.
3. Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2008 filed on May 9,
2008.
4. Exhibit 99.2 to our
Form 8-K
filed on March 1, 2007 and as amended on May 9, 2007.
5. Current Reports on
Form 8-K
filed on March 5, 2008, March 28, 2008 and
May 29, 2008.
6. The description of the Registrants Common Stock,
par value $0.001 per share, contained in the Registrants
Registration Statement on
Form 8-A,
filed with the SEC on March 27, 2000, and the description
of the Stock Rights contained in the Registrants
Registration Statement on
Form 8-A,
filed
18
with the SEC on June 21, 2001, and including all other
amendments and reports filed for the purpose of updating such
descriptions.
7. All documents filed pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and prior to the termination of the offering.
Notwithstanding the foregoing, we are not incorporating by
reference any information furnished under Item 2.02 or
Item 7.01 of any Current Report on
Form 8-K
(including financial statements or exhibits relating thereto
furnished pursuant to Item 9.01).
Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this prospectus to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein or in any prospectus supplement
modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
You may request, and we will provide, a copy of our filings
incorporated by reference at no cost, by writing or telephoning
us at the following address:
Luminex Corporation
12212 Technology Boulevard
Austin, Texas 78727
Attn: Corporate Secretary
Telephone: (512) 219-8020
This prospectus is part of a registration statement that we have
filed with the SEC relating to the securities to be offered.
This prospectus does not contain all of the information we have
included in the registration statement and the accompanying
exhibits and schedules in accordance with the rules and
regulations of the SEC and refer you to the omitted information.
You should rely only on the information contained in this
prospectus, any prospectus supplement or free writing prospectus
or any document to which we have referred you. We have not
authorized anyone else to provide you with information that is
different. This prospectus and any prospectus supplement or free
writing prospectus may be used only where it is legal to sell
these securities. The information in this prospectus or any
prospectus supplement or free writing prospectus is current only
as of the date on the front of these documents.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are also
available over the Internet at the SECs web site at
http://www.sec.gov.
You may also read and copy any document we file at the
SECs public reference room at 100 F Street,
N.E., Room 1580, Washington, D.C. 20549. Please call
the SEC at
1-800-SEC-0330
to obtain information on the operation of the public reference
room. Our web site address is www.luminexcorp.com. Please note
that our web site address is provided as an inactive textual
reference only. The information provided on our web site is not
part of this prospectus or the prospectus supplement, and is
therefore not incorporated by reference unless such information
is otherwise specifically referenced elsewhere in this
prospectus or the prospectus supplement. We make available free
of charge through our web site our Annual Report on
Form 10-K,
Quarterly Reports on
Form 10-Q,
Current Reports on
Form 8-K,
Proxy Statement on Schedule 14A and all amendments to those
reports as soon as reasonably practicable after such material is
electronically filed with or furnished to the SEC.
19
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth an estimate of costs and expenses
to be paid by us in connection with the distribution of the
securities being registered by this registration statement. In
addition to the costs and expenses estimated below, we may pay
any selling commissions and brokerage fees and any applicable
fees and disbursements with respect to the securities registered
by this registration statement that we may sell, but these fees
cannot be predicted with any certainty at this time. All of the
amounts shown are estimates:
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Securities and Exchange Commission Fee
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$
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*
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Nasdaq Listing Fee
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**
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Printing and Engraving Expenses
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**
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Legal Fees and Expenses
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**
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Accounting Fees and Expenses
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**
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Miscellaneous
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**
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Total
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**
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* |
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Omitted because the registration fee is being deferred pursuant
to Rule 456(b). |
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Estimated expenses are not presently known. |
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Item 15.
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Indemnification
of Directors and Officers.
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Section 145 of the Delaware General Corporation Law (the
DGCL) permits a Delaware corporation 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, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation) or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation or enterprise.
A corporation may indemnify against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified acted
in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. If
the person indemnified is not wholly successful in such action,
suit or proceeding, but is successful, on the merits or
otherwise, in one or more but less than all claims, issues or
matters in such proceeding, he or she may be indemnified against
expenses actually and reasonably incurred in connection with
each successfully resolved claim, issue or matter. In the case
of an action or suit by or in the right of the corporation to
procure a judgment in its favor, no indemnification may be made
in respect to any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery of the State
of Delaware, or the court in which such action or suit was
brought, shall determine upon application that, despite the
adjudication of liability, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall
deem proper. Section 145 provides that, to the extent a
present or former director or officer of a corporation has been
successful in the defense of any action, suit or proceeding
referred to above or in the defense of any claim, issue or
manner therein, he or she shall be indemnified against expenses
(including attorneys fees) actually and reasonably
incurred by him or her in connection therewith.
Article V of the Registrants restated certificate of
incorporation (the Certificate) provides that,
except to the extent prohibited by the DGCL, the
Registrants directors shall not be personally liable to it
or its stockholders for monetary damages for breach of their
fiduciary duty as directors. Under the DGCL, the directors have
a fiduciary duty to the Registrant which is not eliminated by
this provision of the Certificate and, in appropriate
circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief
II-1
will remain available. In addition, each director will continue
to be subject to liability under the DGCL for breach of his or
her duty of loyalty to the Registrant or its stockholders; for
acts or omissions which are found by a court of competent
jurisdiction to be not in good faith or which involve
intentional misconduct or knowing violations of law; for actions
leading to improper personal benefit to the director; and for
payment of dividends or approval of stock repurchases or
redemptions that are prohibited by the DGCL. This provision also
does not affect the directors responsibilities under any
other laws, such as the federal securities laws or state or
federal environmental laws.
Article VI of the Certificate permits indemnification of
any director or officer, as well as any employee or agent of the
Registrant, or any individual serving in such capacity for
another entity at the Registrants request, for all
expenses, judgments, fines, and amounts paid in settlement so
long as he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and, with respect to a criminal
proceeding, if he or she had no reasonable cause to believe his
or her conduct was unlawful. However, with respect to any action
by or in the right of the Registrant, such a person will be
entitled to indemnification only if he or she acted in good
faith and in a manner he or she believed to be in, or not
opposed to, the Registrants best interests and, if he or
she is adjudged liable, only to the extent that the Court of
Chancery of Delaware finds that he or she is reasonably entitled
to indemnification.
Article VI of the Certificate also authorizes the
Registrant to assume the defense of an indemnitee in any action,
suit, proceeding or investigation in which indemnity is sought.
In the event that the Registrant does not assume the defense of
an indemnitee, it may advance litigation expenses to an
indemnitee prior to the final disposition of an action
concerning the indemnitees service. The making of such
advances is conditioned upon the indemnitee giving the
Registrant an undertaking to repay the amount advanced if
indemnification ultimately is deemed unavailable.
If indemnification or advancement of expenses is authorized, it
will not exclude any rights to indemnification or advancement of
expenses which any person may have under a bylaw, agreement,
board or stockholder vote, or otherwise. The indemnification or
advancement of expenses provided by Article VI will
continue as to a person who ceases to be a director, officer,
employee, or agent.
The Certificate also states that the Registrant may maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Registrant or another
corporation against any loss, liability, or expense, whether or
not the Registrant would have the power to provide
indemnification under the DGCL, as the Board of Directors may
from time to time determine. The Registrant has obtained
directors and officers liability insurance, the
effect of which is to indemnify its directors and officers
against certain damages and expenses because of certain claims
made against them caused by their negligent act, error or
omission.
The Registrant has entered into Indemnification Agreements with
each of its directors to give such directors additional
contractual assurances regarding the scope of indemnification
set forth in the Certificate and to provide additional
procedural protections. At present, there is no pending
litigation or proceeding involving a director, officer or
employee of the Registrant in which indemnification is sought,
nor is the Registrant aware of any threatened litigation that
may result in claims for indemnification.
II-2
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Exhibit
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Number
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Exhibit Description
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1
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.1*
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Form of Underwriting Agreement
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1
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.2*
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Form of Underwriting Agreement for Debt Securities
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3
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.1
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Restated Certificate of Incorporation of the Company (Previously
filed as an Exhibit to the Companys Registration Statement
on
Form S-1
(File
No. 333-96317),
filed February 7, 2000, as amended, and incorporated by
reference herein)
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3
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.2
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Amended and Restated Bylaws of the Company (Previously filed as
an Exhibit to the Companys Registration Statement on
Form S-1
(File
No. 333-96317),
filed February 7, 2000, as amended, and incorporated by
reference herein)
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4
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.1
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Rights Agreement dated as of June 20, 2001 between Luminex
Corporation and Mellon Investor Services, LLC, as Rights Agent
which includes as Exhibit A the form of Certificate of
Designations of Series A Junior Participating Preferred
Stock setting forth the terms of the Series A Junior
Participating Preferred Stock, as Exhibit B the form of
Rights Certificate and as Exhibit C the Summary of Rights
(Previously filed as Exhibit 4 to the Companys
Current Report on
Form 8-K
dated June 21, 2001 and incorporated by reference herein)
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4
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.2
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Specimen certificate representing the Companys common
stock (Previously filed as an Exhibit to the Companys
Registration Statement on
Form S-1
(File
No. 333-96317),
filed February 7, 2000, as amended, and incorporated by
reference herein)
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4
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.3*
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Form of Preferred Stock Certificate and Form of Designation of
Preferred Stock
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4
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.4
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Form of Indenture
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4
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.5*
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Form of Debt Security
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4
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.6*
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Form of Warrant Agreement
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5
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.1
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Opinion of Bass, Berry & Sims PLC
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12
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.1
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Statement of computation of consolidated ratio of earnings to
fixed charges
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23
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.1
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Consent of Independent Registered Public Accounting Firm
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23
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.2
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Consent of Independent Registered Public Accounting Firm
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23
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.3
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Consent of Bass, Berry & Sims PLC (included in
Exhibit 5.1)
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24
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.1
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Power of Attorney (included in Part II of this Registration
Statement)
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25
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.1
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Statement of Eligibility of Trustee on
Form T-1
with respect to Debt Securities
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To be filed, if necessary, as an exhibit to a post-effective
amendment to this registration statement or as an exhibit to a
Current Report on
Form 8-K
and incorporated herein by reference. |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the Securities
Act);
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
II-3
price set forth in the Calculation of Registration
Fee table in the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC by the
Registrant pursuant to Sections 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the Exchange
Act) that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be
part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act to any purchaser in the
initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
II-4
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act and (and, where
applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of 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 Securities Act and
will be governed by the final adjudication of such issue.
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(d)
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The undersigned Registrant hereby undertakes that,
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(1) For purposes of determining any liability under the
Securities Act, 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, 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 that time shall be deemed to be
the initial bona fide offering thereof.
(e) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of section 310
of the Trust Indenture Act (Act) in accordance
with the rules and regulations prescribed by the SEC under
section 305(b)2 of the Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Austin, State of Texas, on June 16, 2008.
LUMINEX CORPORATION
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By:
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/s/ Patrick
J. Balthrop, Sr.
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Patrick J. Balthrop, Sr.
President and Chief Executive Officer
II-6
SIGNATURE
PAGE AND POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below hereby constitutes and appoints Harriss T. Currie
and David S. Reiter (with full power to each of them to act
alone) as his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in
his name, place and stead in any and all capacities to sign any
and all amendments or post-effective amendments to this
Registration Statement, and to file the same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, to sign any and all
applications, registration statements, notices or other document
necessary or advisable to comply with the applicable state
securities laws, and to file the same, together with all other
documents in connection therewith, with the appropriate state
securities authorities, granting unto said attorneys-in-fact and
agents or any of them, or their or his substitute or
substitutes, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he
might or could do in person, thereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Patrick
J. Balthrop, Sr.
Patrick
J. Balthrop, Sr.
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President and Chief Executive Officer
(Principal Executive Officer)
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June 16, 2008
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/s/ Harriss
T. Currie
Harriss
T. Currie
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Vice President, Finance, Chief Financial
Officer and Treasurer (Principal Financial
Officer and Principal Accounting Officer)
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June 16, 2008
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/s/ G.
Walter Loewenbaum
G.
Walter Loewenbaum
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Director
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June 16, 2008
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/s/ Robert
J. Cresci
Robert
J. Cresci
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Director
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June 16, 2008
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/s/ Thomas
W. Erickson
Thomas
W. Erickson
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Director
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June 16, 2008
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/s/ Fred
C. Goad, Jr.
Fred
C. Goad, Jr.
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Director
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June 16, 2008
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/s/ Jay
Johnston
Jay
Johnston
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Director
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June 16, 2008
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/s/ Jim
D. Kever
Jim
D. Kever
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Director
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June 16, 2008
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/s/ Kevin
M. McNamara
Kevin
M. McNamara
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Director
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June 16, 2008
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/s/ J.
Stark Thompson
J.
Stark Thompson
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Director
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June 16, 2008
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/s/ Gerard
Vaillant
Gerard
Vaillant
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Director
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June 16, 2008
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II-7
EXHIBIT INDEX
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Exhibit
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Number
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Exhibit Description
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1
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.1*
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Form of Underwriting Agreement
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1
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.2*
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Form of Underwriting Agreement for Debt Securities
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3
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.1
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Restated Certificate of Incorporation of the Company (Previously
filed as an Exhibit to the Companys Registration Statement
on
Form S-1
(File
No. 333-96317),
filed February 7, 2000, as amended, and incorporated by
reference herein)
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3
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.2
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Amended and Restated Bylaws of the Company (Previously filed as
an Exhibit to the Companys Registration Statement on
Form S-1
(File
No. 333-96317),
filed February 7, 2000, as amended, and incorporated by
reference herein)
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4
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.1
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Specimen certificate representing the Companys common
stock (Previously filed as an Exhibit to the Companys
Registration Statement on
Form S-1
(File
No. 333-96317)
), filed February 7, 2000, as amended, and incorporated by
reference herein)
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4
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.2
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Rights Agreement dated as of June 20, 2001 between Luminex
Corporation and Mellon Investor Services, LLC, as Rights Agent
which includes as Exhibit A the form of Certificate of
Designations of Series A Junior Participating Preferred
Stock setting forth the terms of the Series A Junior
Participating Preferred Stock, as Exhibit B the form of
Rights Certificate and as Exhibit C the Summary of Rights
(Previously filed as Exhibit 4 to the Companys
Current Report on
Form 8-K
dated June 21, 2001 and incorporated by reference herein)
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4
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.3*
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Form of Preferred Stock Certificate and Form of Designation of
Preferred Stock
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4
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.4
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Form of Indenture
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4
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.5*
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Form of Debt Security
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4
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.6*
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Form of Warrant Agreement
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5
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.1
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Opinion of Bass, Berry & Sims PLC
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12
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.1
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Statement of computation of consolidated ratio of earnings to
fixed charges
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23
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.1
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Consent of Independent Registered Public Accounting Firm
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23
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.2
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Consent of Independent Registered Public Accounting Firm
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23
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.3
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Consent of Bass, Berry & Sims PLC (included in
Exhibit 5.1)
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24
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.1
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Power of Attorney (included in Part II of this Registration
Statement)
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25
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.1
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Statement of Eligibility of Trustee on
Form T-1
with respect to Debt Securities
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* |
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To be filed, if necessary, as an exhibit to a post-effective
amendment to this registration statement or as an exhibit to a
Current Report on
Form 8-K
and incorporated herein by reference. |
II-8